Section 558.1 of the Insurance Act, R.S.A. 2000, c. I-3 limits the number of experts that a party may tender at trial in a personal injury action commenced on or after January 1, 2021. If the plaintiff claims for damages of $100,000 or more in their Statement of Claim, they are limited to three experts, with each tendering one report. If the claim value is less than $100,000, the limit is one expert and one report.

But how strict are these limits, and is a party able to tender additional expert evidence above the prescribed limits? What are the practical considerations for whether the limits will be imposed by the Court?

Background

The Plaintiff alleged that they were injured a car accident and suffered injuries including chronic pain, physical symptoms, concussion symptoms, psychological issues, in addition to functional impairments and reduced capacity to work. The Plaintiff had tendered reports from a physiatrist, occupational therapist, and economist, but sought to include two additional reports prepared by each of an ENT physician and a neuropsychologist. Notably, the expert physiatrist’s report recommended that the Plaintiff seek guidance from an ENT physician and a neuropsychologist. The Plaintiff argued that the initial three experts were not qualified to give evidence on the Plaintiff’s alleged concussion symptoms.

The Defendant opposed the application on two grounds. First, the Plaintiff knew that the additional assessments were necessary to illuminate his concussion symptoms before the Plaintiff chose to tender the reports prepared by the occupational therapist and economist, because the physiatrist report that had recommended the additional experts pre-dated the additional reports. Second, the Defendant argued that the Plaintiff would not suffer proportionate prejudice by being prohibited from tendering those reports, in reference to section 558.1(6)(b) of the Insurance Act.

What the Court Said

First, the Alberta Court of King’s Bench noted that if the two conditions in s. 558.1(6) are met, additional expert reports may be tendered with consent (section 558.1(4)) or judicial leave (section 558.1(5)). The two conditions are as follows:

1. the additional report(s) must contain new evidence not already discussed in other expert evidence; and
2. the party seeking to tender the new reports must suffer prejudice disproportionate to the benefit of not increasing the complexity and cost of the proceeding if the reports were not tendered at trial.

Section 558.1(7) also outlines that the party seeking leave for more experts must provide the name of each new expert, their scope of expertise, and records that support the need for additional evidence. The onus is on the party applying to include additional expert evidence to seek leave or consent.

The Court granted the Plaintiff leave to tender both additional reports. First, the Court found that the timing of the reports and the Defendant’s allegation that the Plaintiff had a choice of five reports was not determinative, finding that all five reports were necessary, each covering a distinct issue.

Second, the Court found that prejudice (that the Plaintiff would incur by being prohibited from tendering the additional report) outweighed the added complexity and costs of allowing the further reports. The Court noted that actual prejudice will not be established until trial, at which point the necessity of each report would become clear. The Court found that the Plaintiff would suffer prejudice because the Plaintiff claimed for future loss of income in his Statement of Claim, for which the economic loss report would be necessary. Further, the Court took heed that the physiatrist had recommended that the Plaintiff seek guidance from the two additional experts whose reports the Plaintiff sought to tender.

Next, the Court weighed the Plaintiff’s prejudice against the increased complexity and cost if the Plaintiff tendered additional reports over and above the prescribed maximum. The Court found that the increased complexity and costs could be addressed through a potential costs order after trial.

The Court concluded that the prejudice that the Plaintiff would suffer outweighed the increased complexity and costs. Thus, the Court granted the Plaintiff’s application to tender the evidence of two additional experts.

Takeaways

Overall, this case highlights that a court may be willing to include additional expert reports where a plaintiff submits claims under all typical heads of damages and alleges a variety of injuries.

It is important for litigants to be aware of the limits prescribed by section 558.1 of the Insurance Act. The burden of proving the need for more experts is on the party seeking to include additional expert evidence (typically the plaintiff). Parties opposing such an application can use the considerations of this decision on the proportionality by highlighting the increased complexity and costs of the case if the additional expert is permitted.

Opposing counsel should prepare to argue why a post-trial costs award would insufficiently combat the increased cost of including additional expert evidence, and whether the plaintiff has met the requirements set out in section 558.1(7). Finally, it is prudent to consider which heads of damage are applicable to the lawsuit. If the plaintiff is not claiming for future loss of income, it is more likely that the number of reports they will be able to tender will be limited.

Ultimately, in cases where existing experts recommend the involvement of additional experts, the Court is likely to allow this – so long as it is proportionate to the injuries and losses alleged.

Insurance disputes can become complex very quickly, so it is advisable to consult a lawyer without delay. Contact Jill Bishop or Grant Szelewicki in Calgary, Christine Pratt in Edmonton, or any member of Field Law’s Insurance Group for advice.

Link to Decision: Norris v Vomacka, 2024 ABKB 312