Antonio Graca Plaintiff v. David Graham Carter Defendant Decision Judge: The Honourable Justice John A. Keith Final Submissions: March 18, 2022 Oral Decision: April 11, 2022 Counsel: Barry Mason, Q.C. for the Plaintiff Karen Bennett-Clayton, for the Defendant By the Court: Issue v. Brief Conclusion, 2022 NSSC 107

SUPREME COURT OF Nova Scotia Citation: Graca v. Carter , 2022 NSSC 107 Date: 20220412 Docket: Hfx No. 474353 Registry: Halifax Between: Antonio Graca Plaintiff v. David Graham Carter Defendant Decision Judge: The Honourable Justice John A. Keith Final Submissions: March 18, 2022 Oral Decision: April 11, 2022 Counsel: Barry Mason, Q.C. for the Plaintiff Karen Bennett-Clayton, for the Defendant By the Court: Issue and Brief Conclusion [ 1 ] The plaintiff brings this motion by correspondence to exclude the rebuttal expert opinion report of Dr. David King, neurologist, dated December 4, 2021.

The plaintiff argues that Dr. King’s report is not proper rebuttal under CPR 55.05. [ 2 ] The defendant opposes the motion and defends Dr. King’s report as proper rebuttal. Alternatively, the defendant asks that the Court redact any non-compliant sections of Dr. King’s report and, more specifically, asks that the Court admit the

section in Dr. King’s report entitled “Rebuttal Responses” (pages 81 – 86) together with any additional information contained in the report that informs or provides the basis or explanation for those Rebuttal Responses. [ 3 ] For the reasons that follow: 1. The following sections of Dr. King’s report will be admitted: a. Pages 4-5 entitled “Medical Qualifications” b. Page 5 entitled “Scope of Neurology” c. Page 6 entitled “Introduction and Examination Parameters" and “Consent to Examination" d. Pages 7 -12 although the portion entitled “Structure of the Report” is excluded; e. Pages 14 - 30 above the

section entitled "Questionnaire" (i.e., the “Questionnaire”

section is excluded); and

f. Pages 81 – 87 which is comprised primarily of a

section entitled “Rebuttal Responses” The balance of Dr. King’s report is excluded. 2. This decision is without prejudice to either: a. The parties’ agreeing upon admitting such additional information as would otherwise be redacted under this decision subject, of course, to the Court’s gatekeeping function described by the Supreme Court of Canada in Abbott and Haliburton Co. Ltd. v White Burgess Langille and Inman , 2015 SCC 23 (“ WBLI ”); or b. Failing a satisfactory resolution, the parties may seek an adjournment of the upcoming trial.

I have obviously not considered nor predetermined any potential adjournment motion or terms, if any, that might attach to any potential adjournment. [ 4 ] The trial in this matter is scheduled to begin on May 9, 2022. The parties agreed to determine their respective positions on any additions to Dr. King’s rebuttal report (i.e. allowing any information otherwise redacted) or a potential adjournment in the next two days. A pre-trial call is scheduled for Thursday, April 14, 2022 at 9:30 a.m. Background and

Summary of Positions [ 5 ] On or about August 24, 2016, the plaintiff Antonio Graca was involved in a motor vehicle accident. Mr. Graca commenced an action seeking damages for various injuries and losses allegedly suffered as a result of that accident. [ 6 ] The plaintiff filed a request for a Date Assignment Conference (“ DAC ”) to fix trial dates. The defendant did not oppose the request. [ 7 ] On August 28, 2020, the parties participated in a DAC where the matter was set down for an 8-day trial beginning May 9, 2022.

The DAC judge also established a February 11, 2022 Finish Date. [ 8 ] At the DAC, the plaintiff confirmed his intention to “possibly” file 2 independent expert reports (physiatrist and psychiatrist) under CPR 55.04. The defendant responded by stating that he would file two rebuttal reports from experts within the same discipline (physiatrist and psychiatrist). [ 9 ] The default filing deadlines for independent expert reports (including rebuttal) are automatically generated based on whatever Finish Date is established during the DAC. [1] Here, the DAC judge established a February 11, 2022 Finish Date. Thus: 1.

The plaintiff was required to file his expert report by August 11, 2022 or 6 months before the Finish Date (CPR 55.03(1)); and 2. The defendant was required to file any rebuttal expert report 3 months after receiving the plaintiff’s expert report (CPR 55.03(2)). [ 10 ] On April 15, 2021, Mr. Graca underwent an independent medical examination (“ IME ”) conducted by Dr. Edwin Hanada, physiatrist. [ 11 ] On July 20, 2021, Dr. Hanada signed his 78-page expert opinion report entitled “Physiatry Assessment”. Pages 1 – 13 comprise Dr. Hanada’s

summary of the plaintiff’s symptoms, history, and Dr. Hanada’s physical examination. Pages 13 – 20 is a

section entitled “Summary and Impression” and contains Dr. Hanada’s conclusions. The final 58 pages are comprised of Appendix “A” (a list of the information reviewed by Dr. Hanada) and Appendix “B” (Dr. Hanada’s 24-page curriculum vitae ). [ 12 ] The plaintiff did not file Dr.

Hanada’s report until August 20, 2021 - about 9 days after the August 11, 2021 deadline under the Rules; and then did not deliver the expert report to the defendant until September 20, 2021, more than 5 weeks after filing it with the Court. [ 13 ] By letter dated November 22, 2021, defendant’s counsel asked that the plaintiff submit to a second IME, this time by Dr. David King, neurologist. By email dated November 23, 2021, plaintiff’s counsel requested confirmation that the defendant was “seeking a rebuttal report to Dr. Hanada’s IME.” By email dated November 24, 2021, defendant’s counsel agreed that Dr.

King’s report would be rebuttal only. [ 14 ] By letter dated November 24, 2021, defendant’s counsel confirmed Dr. King’s retainer and confirmed his instructions. More specifically, defendant’s counsel: 1. Confirmed Dr. King’s agreement to perform an IME on December 1, 2021; 2. Confirmed that the defendant was seeking Dr. King’s “opinion in the form of a rebuttal expert report addressing specific opinions”; 3. Copied verbatim seven “ specific quotations of opinions in Dr. Hanada’s July 21, 2021 report” that Dr. King was to address (emphasis in letter).

The quoted opinions were from pages 16 – 17 and 19 – 20 of the “Summary and Impression”

section in Dr. Hanada’s report; 4. Emphasized to Dr. King that his report was rebuttal and that the “Civil Procedure Rules set out specific requirements for the content of an expert rebuttal”. The letter then quoted the entirety of CPR 55.05 setting out the requirements for a rebuttal expert opinion report; and concluded by asking that Dr. King please ensure his report “contains all of the information and/or statements required by the above-noted Rule [55.05].” [ 15 ] Dr. David King examined the plaintiff on December 1, 2021. On December 4, 2021, Dr. King signed an 87-page expert report entitled “Neurology Report”. Very briefly, pages 7 – 59 contain a description of the report’s structure, a

summary of the documentation

reviewed including Dr. Hanada’s report, Mr. Graca’s history, various questionnaires completed by Mr. Graca, a description of Dr. King’s physical examination of Mr. Graca, and a

section entitled “Claimant’s Credibility”. [ 16 ] Focussing on the

section entitled “Structure of the Report” (pages 12 – 14), Dr. King states that the report’s structure revolves around an opinion “derived from the History, Physical Examination and Collateral Information provided” (page 12). He notes that “In the Conclusion, the data will be analysed into Relevant Medical Diagnosis” (page 12) including the degree of certainty with which he holds the diagnosis. [ 17 ] Dr. King’s 34-page curriculum vitae was also attached. [ 18 ] On December 8, 2021, the defendant’s counsel delivered a copy of Dr.

King’s report to plaintiff’s counsel. [ 19 ] By letter dated January 5, 2022, counsel for the plaintiff requested a copy of Dr. King’s retainer letter and took the position that all of Dr. King’s report was impermissible rebuttal except for the following: 1. Pages 4-5 entitled “Medical Qualifications” 2. Page 5 entitled “Scope of Neurology” 3. Page 6 entitled “Introduction and Examination Parameters" and “Consent to Examination" 4. Pages 7 -12 although the portion entitled “Structure of the Report” remained subject to the plaintiff’s objection; 5. Pages 14 - 30 above the

section entitled "Questionnaire"; 6. Pages 81 – 87 which is comprised primarily of a

section entitled “Rebuttal Responses” [ 20 ] The plaintiff’s counsel asked that all other parts of Dr. King’s report be redacted and that a revised report be filed by January 20, 2022, about three weeks before the Finish Date. [ 21 ] The proposed redactions would remove from the report all of the information obtained through the “Questionnaires” administered by Dr. King (pages 27 – 31) and, as well, Dr. King’s entire “Conclusion”

section (pages 61 – 80). [ 22 ] By letter dated January 11, 2022, counsel for the defendant supplied Dr. King’s retainer letter and took the position that Dr. King’s report was proper rebuttal. She wrote: As requested, attached is the retainer letter to Dr. King dated November 24, 2021. You will see that it was clearly stated in this letter that we were seeking a rebuttal expert report addressing specific opinions contained in the expert report from Dr. Hanada. Quotations from Dr. Hanada's report containing the opinions we asked Dr. King to consider are set out in this retainer letter.

The retainer letter also sets out the materials provided to Dr. King to review. Dr. King specifically responds to these opinions starting on page 81 under the heading "rebuttal responses". This

section sets out the quotations contained in the retainer letter and provides his rebuttal opinion in response. This report is compliant with the Rules for a rebuttal report. Dr. King required an examination of the Plaintiff in order to be able to rebut the opinions contained in Dr. Hanada's report and it is entirely appropriate for Dr. King to include in his rebuttal report the findings from this examination. [ 23 ] Having reached an impasse, the plaintiff’s counsel moved to exclude Dr.

King’s report. [ 24 ] At the parties’ request, I permitted the motion be made in writing under CPR 27 (Motion by Correspondence) to me, as judge assigned to hear the upcoming trial. [ 25 ] Both sides rely upon only two cases which they say are the only cases addressing the content of rebuttal expert opinion report under CPR 55.05: McKinnon v Cadegan , 2020 NSSC 401 (“ McKinnon v Cadegan ”) and Bruce v Munroe , 2016 NSSC 341 (“ Bruce v Munroe ”). [ 26 ] Very briefly, the plaintiff argues that: 1. Dr. King’s report is not a rebuttal expert opinion.

Rather, it is a comprehensive IME report masquerading under the banner of “rebuttal”; 2. It is too late to file a full IME report under the Civil Procedure Rules; and 3. While the plaintiff agrees that certain parts of Dr. King’s report are proper rebuttal (e.g. the

section entitled “Rebuttal Responses” found at pages 81 – 86 of the report), the defendant maintained that the entire report was proper rebuttal. Thus, the plaintiff suggests, its only remedy was to seek an order excluding the entire report. [ 27 ] The defendant disagrees and contends that: 1. The report fully complies with CPR 55.05 for rebuttal reports and that that the Court adopts a practical and pragmatic standard around compliance. Counsel for the defendant notes that the instructions set out in their retainer letter to Dr.

King accurately captured the requirements of CPR 55.05 (Content of rebuttal expert’s report) and properly instructed Dr. King as to both the requirements for rebuttal opinion and the related restrictions placed upon rebuttal expert opinion. Furthermore, the defendant argues that Dr. King substantively followed those instructions. For example, the defendant emphasizes that, consistent with CPR 55.05(c): a. Counsel for the defendant’s retainer letter to Dr. King specifically quotes a number of statements of opinion contained in Dr. Hanada’s original report and asks whether Dr.

King agrees or disagrees with those opinions;

b. In the final five pages of his report (pages 81-86[2]), Dr. King repeats the opinions quoted in his retainer letter and brieflyexplains the reasons for his disagreement. Counsel for the defendant further points out that the parties expressly agreed that Dr. King’s rebuttal report would be prepared in thecontext of an IME. As such, the findings or observations made during that IME were obviously necessary to support Dr. King’s rebuttalopinions. Therefore, it is neither a surprise nor prejudicial that Dr. King’s “Rebuttal Responses” would be preceded by the results of hisIME. 2.

The defendant also emphasizes the plaintiff’s acknowledgement that the final five pages of Dr. King’s report entitled“Rebuttal Responses” (pages 81-86) are proper rebuttal. That admission, the defendant argues, exposes the plaintiff’s attempt to entirelyexclude Dr. King’s report as disingenuous and inconsistent with the plaintiff’s own admissions. 3. The plaintiff has already retained his own expert (Dr. Hanada) who has ample time to consider Dr. King’s opinions and assistthe plaintiff in preparing for trial, including helping to develop a vigorous cross-examination of Dr. King; 4.

Alternatively, the defendant submits that the Court should “redact the non-compliant portions of the Rebuttal Report ratherthan excluding the report in its entirety” (defendant written submissions, paragraph 43). The defendant insists, however, that pages 81 –86 of Dr. King’s report entitled “Rebuttal Responses” must remain together with any such other portions of the report that “inform orprovide the basis or explanation” for Dr.

King’s “Rebuttal Responses”. (defendant’s written submissions, paragraph 43) Analysis General Comments [28] Restrictions around the timing and content of rebuttal expert reports are set out in CPR 55.03 and 55.05. They arise out ofrelated concerns including: 1. Concerns related to the unique nature of expert opinion evidence; 2. Concerns around procedural issues such as notice and trial fairness; and 3.

More practical concerns which arise when trial dates are assigned before expert opinion reports are exchanged. [29] The Civil Procedure Rules and associated jurisprudence seek to balance these related concerns in a way which both achieves thepromise of a “just, speedy and inexpensive determination of every proceeding” (CPR 1.02) and answers the Supreme Court of Canada’scall in Hryniak v Mauldin, 2014 SCC 7 for more proportionate proceedings. I elaborate upon each concern below as they provide helpfulcontext for understanding the meaning and scope of CPR 55.03 and 55.05. (

A) Unique Nature of Expert Opinion Evidence [30] As a general rule, opinion evidence is excluded because it consists of inferences based on proven facts. It is for the Court (notwitnesses) to determine what inferences may be properly drawn — or what opinions should be formed — from the facts (see R. v. D. (D.),2000 SCC 43 , [2000] 2 S.C.R. 275 (S.C.C.), at para. 49; and R. v. K. (A.), (ON CA), [1999] O.J. No.3280 (Ont. C.A.)). [31] Expert opinion evidence represents an exception to this general rule.

The reason is obvious: the Court is often asked to considerissues that cannot be fully understood or properly weighed without assistance from a person with specialized experience, education, orexpertise. Experts provide that assistance. Simply put, expert opinion evidence may be admitted because the Court needs help (Alan W. Bryant, Sidney N. Lederman & Michelle K.

Fuerst, The Law of Evidence in Canada, 4th ed. (Markham: LexisNexis Canada, 2014) at784). [32] That said, the same specialized experience, education or expertise which explains why expert opinion evidence is allowed alsohelps explains why expert opinion evidence is approached with a degree of caution. Experts may possess impressive credentials, presentin a professional and polished manner, or deploy sophisticated jargon. These superficial characteristics might unjustifiably elevate theiropinions or project a certain infallibility over otherwise untrustworthy evidence (see R v Abbey, 2017 ONCA 640 at para 113).

In R vMohan, (SCC), [1994] 2 S.C.R. 9, the SCC comments upon how unreliable expert opinion can threaten and distort thefact-finding process. As a result, the Court approaches expert opinion evidence with careful reflection and healthy skepticism. (

B) Notice and Trial Fairness [33] Rules of Civil Procedure and the laws of evidence echo with the basic rule of fair play that parties be given a reasonableopportunity to consider and respond to the evidence which will be marshalled against them.

For example, disclosure obligations (see CPR14.08(1) where full disclosure is presumed to be necessary to do justice), the rule in Browne v Dunn, and clear limits on the scope of re-examination (see the decision of Saunders, JA, dissenting on other grounds, in Campbell v Jones, 2002 NSCA 128, at paragraph 307) allresonate with this notion of fairness. [34] The Civil Procedure Rules and jurisprudence around rebuttal evidence evoke similar concerns. [35] With respect to rebuttal evidence in particular, the law around when/whether/how a party receives notice is particularly sensitiveto such factors as onus and/or the purpose for which the rebuttal evidence is being tendered. [36] For example, where the party seeking to introduce rebuttal evidence also bears the burden of proof on the issue in question,concerns arise around the unfairness associated with case-splitting or attempting to trap a party that does not otherwise have the burden ofproof.[3]

[ 37 ] Even where a party does not bear the burden of proof, prejudice can still arise although the underlying considerations and implications are obviously different. In Canadian Pacific Railway v Canada , 2020 FC 690 , Diner, J provides a helpful

summary of the various forms of prejudice associated with reply or rebuttal evidence (at paragraphs 20 – 31). (

C) Trial Dates and the Efficient Administration of Justice [ 38 ] The question of when a party should be required to serve and file rebuttal expert opinion reports engages policy concerns around proportionality and undue delay. [ 39 ] There are benefits associated with providing litigants fixed trial dates at an early stage in the proceeding. A fixed trial date marks the visible end to the adversarial process and a commitment by the Court to adjudicate the legal issues in dispute.

Providing these assurances earlier in the litigation process and before the parties are required to incur the expense of filing expert reports serves to enhance confidence in the administration of justice. [ 40 ] At the same time, providing early trial dates before expert reports are exchanged means that the Court must allocate judicial resources before the party’s are fully ready for trial.

If the parties subsequently fail to serve expert reports sufficiently in advance of fixed trial dates, the trial may be adjourned, judicial resources are wasted and deserving litigants who are waiting in line for court dates will suffer unnecessary delay. This risk erodes confidence in the administration of justice. [ 41 ] CPR 55.05(3) and (5) governing the timing and content of rebuttal expert reports represents an attempt to balance these related concerns and develop a procedural response that is fair, enhances proportionality and promotes efficiency. I turn to that rule now.

CPR 55.03 and CPR 55.05 [ 42 ] There are two distinct features to the procedural preconditions for presenting expert opinion evidence at trial: timing and content. Each feature is addressed separately below. (

A) Timing [ 43 ] In Nova Scotia, the process for assigning trial dates and corresponding deadlines for filing expert reports (including rebuttal reports) may be summarized as follows: 1. The Court assigns fixed trial dates at the DAC. It is not necessary to serve or file expert reports in advance of a DAC. However, the party requesting a DAC must also provide certain information necessary to

schedule the trial including details regarding any anticipated expert opinion (CPR 4.13(3)(f)), the number of witness (including experts) who are expected to be called together with an estimate as to the length of their testimony (CPR 4.13(3)(i)), and an estimate as to the number of days required for trial (CPR 4.13(3)(j)). [4] 2. Other parties may oppose the request for a DAC although, again, the failure to have filed expert reports is not a valid objection (CPR 4.14); 3.

Assuming no valid objection to the DAC request, all other parties are required to serve and file a responding memorandum correcting any information in the original request and providing a list of the witnesses (again, including experts) they will call together with their own estimates as to the length of their anticipated testimony (CPR 4.15(2)). 4. A judge presides over the DAC.

If the judge “is able to forecast trial readiness and estimate the length of a trial may give directions about the course of the proceeding and the conduct of the trial” then the judge must (the language is mandatory): a. set trial dates; and b. fix both a “Trial Readiness Conference” and a “Finish Date”. 5. In terms of timing, the “Trial Readiness Conference” must be no less than 40 days before the first day of trial (CPR 4.16(6) (b)). Under CPR 94.02 (governing the calculation of time under the rules), 40 days translates to about 8 weeks or so.

The “Finish Date” must be no less than 20 days (about 4 weeks) before the “Trial Readiness Conference” (CPR 4.16(6)(c)). Overall, the “Finish Date” is no less than 60 days before the first day of trial (about 12 weeks or 3 months, give or take) 6. The “Finish Date” is an important crossroads on the path towards trial. In a sense, it marks a “point of no return”. For present purposes, the Finish Date is significant because the default deadlines for filing expert reports and rebuttal expert reports are automatically generated by reference to that date. Thus: a.

Expert opinion reports in an action must be filed no less than six months before the finish date (CPR 55.03(1)). b. A party receiving an expert opinion report must file any rebuttal opinion no more than three months after the day the expert’s report is delivered to the party (CPR 55.03(2)). [5] Pausing here, I note that CPR 55.03(1) only requires that an original expert report be filed 6 months before the Finish Date. It does not explicitly refer to also delivering the report to an opposing party. However, expert reports must be delivered promptly upon receipt and certainly immediately after being filed.

They should not be withheld and disclosed only at the last moment to secure some strategic advantage ( Sanford v Carleton Road Industries Association , 2020 NSSC 185 at paragraph 30 ). See also CPR 31.15(1) which clearly confirms that a party who files a document must immediately deliver the document to every other party, subject to certain qualifications, none of which apply here. [ 44 ] In sum, it is not necessary to file any expert reports before asking that trial dates be set. Expert reports come much later in the process. In particular:

1. Original expert opinions will be served and filed about 9 months before the first day of trial; and 2. Rebuttal expert reports will be served and filed about 6 months before the first day of trial; and 3. Rebuttal expert reports are only due about 3 months before the “Finish Date” or “point of no return”. As such, any delays in the filing and/or delivering of expert reports heightens the various risks associated with an adjournment. [ 45 ] In terms of being able to fix trial dates without first having to exchange expert reports, it bears noting that Nova Scotia’s rules are among the more lenient.

By way of comparison: 1. New Brunswick’s Rules of Court require a party to serve its expert reports “as soon as practicable and no later than the Motions Day at which the trial date is fixed” (New Brunswick Rule 52.01); 2. Under Ontario’s Rules of Civil Procedure, an action may be listed or set down for trial on the basis that all parties are deemed ready for trial. (Ontario Rule 48.01 and 48.07(a)) While a party is not required to file expert reports in order to list a matter for trial, the next step in the process is a pre-trial conference where trial dates are actually fixed.

And at least 60 days prior to the pre-trial conference, a party who intends to call a responding expert witness at trial must serve upon all other parties a responding expert report. (Rule 53.03(2)); 3.

In Alberta, a court clerk fixes trial dates once a party provides certain minimal information listed in Alberta Rule 8.4(2) (e.g. pleadings, anticipated witnesses, and anticipated length of trial) and also provides additional, more stringent assurances including a certification that “any expert reports have been exchanged and the relevant process for exchanging expert reports has been fulfilled and also certified that any independent medical examination and related report is completed”. (Alberta Rule 8.4(3)) [6] [ 46 ] The rules for setting matters down for trial in British Columbia are more akin to Nova Scotia in that a party may request trial dates early in the process and then become subject to certain default timelines for filing expert reports.

In particular, expert reports are 84 days before the first day of trial with any responding reports due 42 days before the first day of trial (B.C. Rules 11-6(3) and (4)). [7] [ 47 ] Again, Nova Scotia’s rules are animated by the policy concerns discussed in paragraphs 28 – 41 above and, in particular, seek the balance the benefits associated with obtaining early trial dates against the need to ensure “trial readiness” and create a clear, pre-trial

schedule which safeguards against the adverse affects of adjournments. However, in balancing these competing concerns, it is understood that pre-trial deadlines must be met and that trial dates become threatened if they are not. In Brown v. Nova Scotia Association of Health Organizations Long Term Disability Plan , 2020 NSSC 301 (N.S. S.C.), Smith, CJ wrote at paragraph 28: In my view, when a judge sets a clear deadline at a Date Assignment Conference, that deadline supersedes any other relevant deadline contained in the Rules. The deadline set by the judge is not aspirational.

It is not a target date or a goal for counsel to attempt to achieve. It is a deadline by which a party must act. However, the effect of missing the deadline may vary depending upon the original deadline set out in the Rules.

For example, a party who misses a judge's deadline in relation to physicians' narratives but who has the narratives delivered to the other side prior to the Finish Date is likely to be in a better position than a party who misses both the judge's deadline and the Finish Date. [ 48 ] The same comments apply with arguably greater force in respect of the default deadlines in CPR 55.03(1) and (2) for filing expert opinion reports given the complexity of subject matter, the time needed to understand and respond to the opinions, and the facts that the default deadlines expire in the months leading up to the Finish Date when, as indicated, all parties are deemed ready for trial.

Moreover, these conclusions reinforce the importance of commitments made during a DAC. A DAC should not be breezily brushed aside as a relatively inconsequential step on the path towards trial. With respect to expert reports, parties attending a DAC should carefully consider their position and address any procedural accommodations they may require. For clarity, I am referring to the importance of the DAC in the pre-trial process. I do not find that either party in this action approached the DAC in a cavalier manner. (

B) Content [ 49 ] CPR 55.05 states: A rebuttal expert’s report must be signed by the expert and provide all of the following: (

a) representations and information required in an expert’s report; (

b) the name of the expert with whom the rebuttal expert disagrees and the date of that expert’s report; (

c) a quotation of the statement of opinion with which the rebuttal expert disagrees; (

d) a statement that the rebuttal opinion is strictly confined to the same subject as the quoted opinion; (

e) the rebuttal opinion and no further opinion. [ 50 ] CPR 55.05(

a) incorporates the provisions of CPR 55.04 by stating that a rebuttal expert report must provide the “representations and information contained in an expert report”. The language is mandatory. Thus, a rebuttal expert opinion must: 1. State certain representations including an express acknowledgement of the expert’s duty to remain objective and independent (CPR 55.04(1); 2. Contain a concise statement of each opinion and further provide certain other information essential to, for example, fully explain the opinion including any underlying assumption as well as the degree of confidence with which the expert holds the opinion (CPR 55.04(2))

3. Contain certain additional information regarding, for example, the expert’s qualifications as well as any research or testing completed to arrive at the opinions. (CPR 55.04(3)). [ 51 ] However, rebuttal expert reports are subject to further restrictions than an original expert report and, as such, CPR 55.05 continues beyond subsection (a). For the purposes of this decision, CPR 55.05(c) – (

e) are particularly germane. They confirm that expert rebuttal reports must also provide: 1. Quotations of every opinion being challenged (CPR 55.05(c)); 2. A statement that “the rebuttal opinion is strictly confined to the same subject as the quoted opinion.” (CPR 55.05(d)); and 3. “…the rebuttal opinion and no further opinion” (CPR 55.05(e)). [ 52 ] Breaking CPR 55.05(c) – (

e) down further: 1. CPR 55.05(

c) is clear and specific. The rebuttal expert report must explicitly quote the original opinions; 2. As indicated, the report must provide a statement that “the rebuttal opinion is strictly confined to the same subject as the quoted opinion.” (CPR 55.05(d)). Thus, the opinions which are quoted in compliance with CPR 55.05(

c) effectively serve as the boundaries which constrain the scope of the rebuttal opinion; 3. CPR 55.05(

d) and (

e) work together to emphasize the limits on rebuttal opinion. Thus: a. CPR 55.50(

d) underscores the fact that the report must include a statement confirming that the rebuttal “ strictly confined to the same subject as the quoted opinion” (emphasis added); and b. CPR 55.50(

e) stresses that the report must provide “…the rebuttal opinion and no further opinion” [ 53 ] The proper

interpretation and application of CPR 55.05(c) – (

e) again engages some of the policy concerns summarized in paragraphs 28 – 41 above. [ 54 ] On the one hand, as indicated, expert opinion evidence is admitted because the Court needs help understanding and weighing complex subject matter. As such, the “subject” of a rebuttal expert’s quoted opinion cannot be so rigidly interpreted that the rebuttal expert: 1. Becomes automatically trapped within the original expert’s theoretical framework; 2. Is compelled to adopt whatever assumptions or methodology their original expert chose to apply, regardless of how inappropriate or far-fetched it might be; and/or 3.

Is precluded from applying a different theory or offer an alternative opinion. [ 55 ] Any such conclusion would unfairly impede the rebuttal expert’s ability to address the original quoted opinion and unduly constrain the Court’s ability to properly evaluate the relative strengths and weaknesses of opposing expert opinions. Murray, J generally captured this concern in McKinnon v Cadegan when he wrote: …a rebuttal expert must be able to say words to the effect “I disagree and this is why”. If the reason for disagreement pertains to another theory, then the rebuttal expert is able to state that theory.

In fact, he is required to state it. Explaining his or her theoretical basis is permissible under Rule 55.04. [paragraph 40] [ 56 ] On the other hand, concerns around trial fairness and proper allocation of judicial resources mean that the content of rebuttal opinion must be clearly defined and limited. Thus: 1.

A rebuttal expert must do more than robotically affirm their opinion “is strictly confined to the same subject as the quoted opinion” and contains only “rebuttal opinion and no further opinion.” Equally, the scope of rebuttal opinion does not infinitely expand simply because the report says it “is rebuttal opinion and no further opinion” or, alternatively, because the report defines the “subject” of a quoted opinion so broadly as to eliminate any practical limits to rebuttal.

For example, a rebuttal expert may not begin with the proposition that the “subject” of an original expert opinion is causation in the broadest sense of the word, and then presume that the scope of rebuttal opinion widens to include anything that might touch upon this issue. This would render the distinction between expert opinion and rebuttal expert opinion meaningless; and 2.

CPR 55.05 must be interpreted strictly to ensure clarity as to the proper scope of rebuttal opinion evidence and, in doing so, minimize the likelihood of disputes which potentially put trial dates at risk. [ 57 ] Overall, in my view, the following factors guide compliance around CPR 55.05(c) – (e): 1. There is no single form, boiler-plate form or formula which can be adopted in every report to automatically transform any opinion into proper rebuttal. Rebuttal opinion is obviously contextual and must adapt to the quoted opinion and the circumstances of the case; 2.

The predominant purpose of expert rebuttal opinion is to respond to the original opinion. As such, it must remain centred around a disagreement with the quoted opinions. The focus of any alternate explanations, reasoning, inferences, or conclusions offered in rebuttal must similarly be connected to the quoted opinion. It is not, in other words, an opportunity to embark upon a fresh, wide-ranging examination into all of the issues in dispute and develop comprehensive reports with new opinions, disconnected from the original report;

3. The rebuttal expert report must: a. Quote the opinion in question; b. Confirm a disagreement with the quoted opinion; c. Identify and explain the specific nature or basis of the rebuttal expert’s disagreement with the quoted opinion.

Examples include (but are not limited to) disagreements around: i. the appropriate assumptions made in respect of the quoted opinion; ii. the reliability of any test or experiment which underpin the quoted opinion, including the data or output generated from any such test or experiment; iii. the reliability or currency of any research used to develop the quoted opinion; and/or iv. the appropriate methodology or the appropriate discipline (or area of expertise) needed to properly analyse the evidence. d.

Articulate and explain why the nature of the disagreement exposes problems with the quoted opinion and leads to a different opinion which is preferrable to the quoted opinion. 4. The party offering a rebuttal expert report is responsible for ensuring clarity in terms of explaining the path of reasoning which gives rise to the disagreement and, more generally, complying with the rules. [ 58 ] At this stage, it is necessary to briefly address Bruce v Munroe . In that decision, the plaintiff sought to rely upon a rebuttal report from a Dr. Roger McKelvey dated January 29, 2016.

The defendants received the report on February 16, 2016 more than 3 months in advance of the trial originally scheduled for May 24 – June 16, 2016. The trial was rescheduled to January 9 – 18, 2017 meaning that the defendant had the rebuttal report for about 11 months before trial. [ 59 ] The rebuttal report was “loosely written” and the issue narrowed to whether the rebuttal expert report should be excluded or, alternatively, the rebuttal expert given a chance to re-write the report to comply with the rules. (at paragraph 80) [ 60 ] Rosinski, J observed that the defendant received Dr.

McKelvey’s rebuttal report on February 16, 2016, almost 11 months in advance of trial. In addition, the report did contain certain references to page numbers and topic areas covered by the opposing expert. In the end, Rosinski, J concluded that an appropriate response from the Court was that: 1. Certain sections in Dr. McKelvey’s report were clearly not proper rebuttal but they could be isolated and excised with surgical redactions; (paragraph 94) 2. The rebuttal report was to be re-written (with the necessary redactions and filed by December 30, 2016.

Moreover, the re- written report “must satisfy all the strict requirements of CPR 55.04 and 55.05(a)” (paragraph 96) [ 61 ] In terms of setting a new deadline for filing a rebuttal expert report, CPR 55.03(1) and (2) contemplate that the default deadlines may be substituted for “a deadline set by a judge.” Thus, it was fully within Roskinski, J’s discretion to establish new filing deadlines and, on this, I note CPR 2.03(1)(

c) confirms the Court’s general discretion to: (

c) excuse compliance with a Rule, including to shorten or lengthen a period provided in a Rule and to dispense with notice to a party. [ 62 ] The rules around content (as opposed to timing) are more strict. The language is mandatory. Unlike CPR 55.03 (timing), CPR 55.04 (content of expert reports) and CPR 55.05 (content of rebuttal expert reports), a judge is not afforded the discretion to alter the strict standards. See CPR 2.03(3)(

b) which states that: The general discretions do not override any of the following kinds of provisions in these Rules: … (

b) a limitation in a permissive Rule that limits the circumstances in which a discretion may be exercised; [emphasis added] [ 63 ] In Purcell v Gale , 2018 NSSC 318 , Brothers, J wrote: “The law is clear that the Rules should be strictly construed so as to avoid any circumvention of Rule 55.04. I appreciate that the burden is on the Plaintiff and I am satisfied that there has been no circumvention here” (at paragraph 29).

The same may be said of CPR 55.05. [ 64 ] In my view, the Court has the discretion under the Rules to make such orders or give such directions as are necessary and appropriate in the circumstances to ensure compliance with CPR 55.05, as Murray, J did in McKinnon v Cadegan . A Court may also, in appropriate circumstances, reserve the right to request submissions from the parties as to the necessity of an adjournment to ensure justice is done subject, of course, to the requirements of CPR 4.20.

Put differently, excluding the opinion evidence entirely is not the Court’s sole remedial option. [ 65 ] However, the Court does not have the discretion to waive compliance with the mandatory requirements of CPR 55.05 or, for that matter, compliance with the mandatory requirements of CPR 55.04. [ 66 ] I recognize Rosinski, J’s statement in Bruce v Munroe that the remedy granted was “in lieu of strict compliance with CPR

55.05(

c) and (d)” (paragraph 97). However, that statement must be considered in the context of Rosinski, J’s conclusion that the opinion fell within the bounds of proper rebuttal once certain redactions were made. In any event, if Bruce v Munroe stands for the proposition that a judge can alter the strict requirements of CPR 55.05 (or 55.04), I must respectfully disagree. [ 67 ] I make two final comments with respect to CPR 55.05: 1.

In terms of full compliance with CRP 55.05, heightened vigilance may be justified in circumstances where a party with the burden of proof is seeking to introduce expert opinion evidence in rebuttal. CPR 55.05 neither abolishes the common law prohibiting case-splitting nor permits a party with the onus to corner an opposing party into a particular position and/or split their case. I make this comment in obiter , as Dr. King’s report is being offered by the defendant and not the party with the burden of proof; 2.

The rules are sufficiently flexible to enable a party to respond to an expert report without being constrained by the restrictions contained in CPR 55.05. However, it is incumbent upon the responding party to carefully consider its position and proceed in a way that ensures compliance with the rules. Ideally, these types of issues would be raised before (or, at a minimum, at) the DAC. The procedural options include: a. Asking the DAC judge to exercise his/her discretion under CPR 55.03 to establish more tailored deadlines for filing expert reports; b.

Reaching an agreement with opposing counsel that any rebuttal report would not be constrained by the strict limitations associated with Rule 55.05 and, for example, confirming that an unrestricted IME will occur but only after having received the original expert report. Obviously, this agreement would have to be made in a timely fashion to ensure compliance with the rules and not jeopardize trial dates; or c. Failing agreement, bringing this issue to the attention of the Court for appropriate directions – again, in a timely fashion to ensure compliance with the rules and to not jeopardize trial dates.

If a responding party instead commits to filing a rebuttal expert report under CPR 55.05, then the provisions of that rule must obviously be applied. To find otherwise would, in my view, unduly dilute the procedural choices which were embedded within CPR 55.05 and were designed to carefully balance the competing issues described above. Application to the Facts [ 68 ] I begin by noting that Dr. King does comply with certain provisions of CPR 55.05. In the

section entitled “Rebuttal Responses”, Dr. King: 1. Provides the representations and information required in an expert’s report (CPR 55.05(a)); 2. Provide the name of the expert with whom the rebuttal expert disagrees (Dr. Hanada) and the date of Dr. Hanada’s report (CPR 55.05(b)); 3. Provides a quotation of the statement of opinion with which the rebuttal expert disagrees (CPR 55.05(c)). Indeed, Dr. King quotes verbatim seven opinions from Dr. Hanada’s report; 4. Provides an explanation as to the specific nature or basis of the rebuttal expert’s disagreement with the quoted opinions. Dr.

King also briefly explains the nature of the disagreement, why he believes Dr. Hanada’s conclusions are flawed and why he holds a different opinion. [ 69 ] However, the difficulty is that the predominant purpose of Dr. King’s report was to offer independent opinions regarding Mr. Graca’s injuries. I note the following: 1. Structurally, the first 81 pages of the report begins with Dr. King’s independent review and examination and builds into a

section entitled “Conclusions”. All of this occurs before Dr. King offers his “Rebuttal Responses” at pages 81 – 86; 2. Dr. King’s “Conclusion” section: a. Contains 121 discrete comments, only 11 of which refer to Dr. Hanada. 110 do not; and b. Is 21 pages in length – compared to his 5 page “Rebuttal Responses”; 3. The retainer letter from plaintiff counsel to Dr. King quoted CPR 55.05 and clearly directed Dr. King to “Please ensure that your report contains all of the information and/or statements required by the above-noted Rule.” Dr.

King did not fully comply with that instruction and, for example, did not provide a statement that the rebuttal opinion is strictly confined to the same subject as the quoted opinion. [ 70 ] More problematic for the purposes of CPR 55.05, Dr. King attempts to pull independent opinions contained in the first 81 pages of the report into his “Rebuttal Responses” without providing clear references or a path of reasoning connecting the independent opinions with his rebuttal. For example: 1.

The first quoted opinion in the “Rebuttal Responses” states: “At this time, based on the review of the documentation present in the file in addition to the assessment undertaken, it is my medical opinion, as a physiatrist, that Mr. Graca, on the balance of medical probabilities, sustained the following injuries as a direct result of the August 24, 2016 motor vehicle collision: mild traumatic brain injury and persistent post-concussion syndrome” (page 81). Embedded within Dr. King’s response is the statement “as I pointed out in the Discussion, this does not have an anatomic basis,

pathological basis pathophysiologic basis and the symptoms are as common in the general population as they are in the people who have had a concussion” (page 82). Dr. King does not provide a point of reference connecting this statement to his earlier opinions in the “Discussion”. As such, the reader is left to either guess what specific parts of the “Discussion”

section are engaged or simply assume that the entirety of Dr. King’s “Discussion” is relevant – without any basis for making that assumption; 2. The second quoted opinion in Dr. Kings’ “Rebuttal Responses” states “Mr. Graco’s reported symptoms and mechanism of head injury are consistent with his having experienced a mild traumatic brain injury, congruent with the ACRM criteria described above.” Dr. King’s rebuttal opinion confirms his disagreement but contains such statements as “this is not the same, as I have pointed out, as a traumatic brain injury.” Dr. King goes on to refer to Mr.

Graca’s “significant emotional disturbances and psychosocial stresses independent of the accident” but simply concludes “I have outlined those above.” (page 82) Again, the reader is left to either guess what earlier parts of Dr. King’s report are engaged or, given the broad nature of the statement, simply assume that the entirety of the report is relevant – without any basis for making that assumption; 3. Dr.

King’s rebuttal responses to the fifth, sixth and seventh quoted opinions (pages 85 – 86) contain statements that indirectly related to earlier parts of his report without providing a clear reference so as to better understand the nature of his disagreement and path of reasoning. [ 71 ] Respectfully, it is not for the court to speculate as to what additional information or explanations might comprise or form the basis of Dr. King’s complete rebuttal opinions. As indicated, expert opinion is admitted because the Court needs help understanding the subject matter.

The court neither has the obligation nor the expertise to tell Dr. King what information forms the basis of his rebuttal opinions. It is for Dr. King, not the Court, to clearly articulate and explain his rebuttal opinion. [ 72 ] This gives rise to a related concern and potential prejudice: using oblique references in rebuttal to introduce other opinions contained in a fresh, broad and independent report unnecessarily expands the scope of rebuttal opinion beyond what is permitted or justified under CPR 55.05.

Again, where a party commits to tendering rebuttal opinion, that party is responsible for ensuring the rebuttal opinions are sufficiently clear to comply with CPR 55.05. [ 73 ] Dr. King’s rebuttal report will be redacted to exclude everything except: 1. Pages 4-5 entitled “Medical Qualifications” 2. Page 5 entitled “Scope of Neurology” 3. Page 6 entitled “Introduction and Examination Parameters" and “Consent to Examination" 4. Pages 7 -12 although the portion entitled “Structure of the Report” is to be redacted; 5. Pages 14 - 30 above the

section entitled "Questionnaire" (i.e., the “Questionnaire”

section is redacted); and 6. Pages 81 – 87 which is comprised primarily of a

section entitled “Rebuttal Responses” [ 74 ] I appreciate that this will remove significant sections of Dr. King’s report and, in particular, the “Questionnaire” and “Conclusion” sections of Dr. King’s report. I am also mindful of the fact that Dr. King appears to have intended to incorporate certain parts of his “Questionnaire” and “Conclusion” sections into his rebuttal responses but failed to do so in a way which complies with CPR 55.05. The reason may be that, again, the predominant purpose of Dr.

King’s report was to provide a complete, independent report – not rebuttal. [ 75 ] I am also not unmindful of the fact that the plaintiff only indicated an intent to “possibly” call expert witnesses at the DAC and did not deliver Dr. Hanada’s report in a timely fashion. [ 76 ] For these reasons, my decision is without prejudice to either: 1. The parties reaching agreement as between themselves but obviously subject to the Court’s supervisory gatekeeping function under WBLI as to what additional portions of Dr. King’s rebuttal report might be admitted; or 2.

Failing a satisfactory resolution, the parties may seek an adjournment of the upcoming trial. I have obviously not considered nor predetermined any potential adjournment motion or the terms, if any, that might attach to any potential adjournment. Keith, J.