Expert Evidence 2022

Course Chairs
Theresa Iandiorio — Crown Counsel, Ministry of Attorney General, New Westminster
Michael Parrish — Fasken Martineau DuMoulin LLP, Vancouver

About the Course Chairs
Theresa Iandiorio earned her law degree from the University of Alberta in 2003 and completed her articles at Donaldson Jette in 2004. She was called to the BC bar in 2004 and joined the BC Prosecution Service that same year. Theresa has worked as a trial prosecutor for the BC Prosecution Service for the past 17 years. She has worked in several different Crown Counsel offices prosecuting all types of criminal offences. Since 2012, Theresa has been a major crime trial prosecutor in the New Westminster Supreme Court office where she prosecutes homicides and other major crime files. She has prosecuted a number of lengthy, complex homicide cases involving many difficult issues, such as "Mr. Big" undercover operations, expert evidence in emerging areas, juror misconduct, and mental disorders. As a trial prosecutor, Theresa has conducted cases involving expert evidence in relation to a number of different areas, including toxicology, forensic psychiatry and psychology, forensic pathology, DNA, fingerprint analysis, collision reconstruction, fire investigations, bloodstain pattern analysis, firearm examinations, and emergency medicine. Even with her busy practice, Theresa has taken the time to teach as well as mentor lawyers and students. 

Michael Parrish is a litigator at Fasken Martineau, Vancouver. He practices primarily in the areas of product liability, tort, insurance, and construction litigation. Michael regularly speaks and writes on topics relating to civil litigation.

Faculty
The Honourable Madam Justice Carla L. Forth — Supreme Court of BC, Vancouver
Laura L. Bevan — Lawson Lundell LLP, Vancouver
Elvis Cepus, PhD, PEng — RJ Waldron & Company, Richmond
Rod Flannigan — Crown Counsel, Ministry of Attorney General, New Westminster
Mandeep Gill — Harper Grey LLP, Vancouver
Lisa J. Helps — Helps Law Corporation, Vancouver
Kaleigh Milinazzo — Fasken Martineau DuMoulin LLP, Vancouver
Gloria M. Ng — Gloria Ng Law, Vancouver
Brent Olthuis — Olthuis Van Ert, Vancouver
Christopher J. Reed, PEng — Principal, Reed Engineering Consultants Inc., Langley
Marilyn Sandford, KC — Ritchie Sandford McGowan, Vancouver
Talya Schapiro — KazLaw Injury Lawyers, Vancouver
Mark Wolf — Crown Counsel, Ministry of Attorney General, Vancouver
Jill S. Yates — McCarthy Tétrault LLP, Vancouver

Click here for full faculty bios

Your guide to finding, choosing, and using an expert

Expert Evidence in British Columbia Civil Proceedings—6th Edition

This publication is essential for: all litigators who work with expert witnesses

Current to: July 1, 2021

Expert opinion plays a critical role in most civil cases—and litigators should know how to use experts to their full advantage. Expert Evidence in British Columbia Civil Proceedings will help you handle BC's distinctive expert evidence rules. Practical and portable, this guidebook offers analysis of case law and advice on tactics and tools so you can effectively select, brief, lead, and attack expert evidence. With the view from the bench, you can learn what makes a powerful expert opinion presentation in the eyes of a trial judge. Specialized topics also include expert evidence in mediations and before administrative tribunals.

With this resource, you will be able to:

• identify when and how to use expert opinions
  
• analyze how to lay the factual basis for an expert opinion
  
• present your expert evidence so it effectively supports your case
  
• better prepare your expert for the witness stand

Highlights of the Sixth Edition include:

• all chapters, forms and precedents, and other features of the manual have been brought current to July 1, 2021
• significant rewrite of chapter 5 (Briefing the Expert Witness) and chapter 8 (Attacking Expert Evidence)
• new sections covering the following: 
  • amendments to the BC Evidence Act limiting the number of expert reports and disbursements in vehicle personal injury actions
  • challenging the admissibility of some or all of an expert's report in a voir dire
  • the expert's reliance on hearsay in forming their opinion
• new and expanded discussion regarding, among others, the following:
  • seeking production of documents from an expert's file solely for the purpose of objecting to the admissibility of the report
  • co-production of expert work products
  • circumstances where lack of independence may be grounds for excluding an expert report
  • the steps a party may take in challenging an expert for bias
  • the expert's role in cases turning on the resolution of historical facts, Indigenous rights, and title litigation

Welcome and Land Acknowledgment (9:00 – 9:05)

Theresa Iandiorio — Crown Counsel, Ministry of Attorney General, New Westminster
Michael Parrish — Fasken Martineau DuMoulin LLP, Vancouver

Expert Evidence Case Law Update (9:05 – 9:50)

• recap of SCC's decision in White Burgess v. Abbott, 2015 SCC 23
• survey of recent cases from SCC, BCCA, BCSC, and other courts
• Rule 11-6 and 11-7
• trends and developing issues
• key take-aways on the current state of the law and practice

Theresa Iandiorio — Crown Counsel, Ministry of Attorney General, New Westminster
Michael Parrish — Fasken Martineau DuMoulin LLP, Vancouver

BREAK (9:50 – 10:00)

Selecting, Retaining, and Instructing an Expert (10:00 – 10:40)

• selecting the expert and vetting qualifications
• consulting experts vs. testifying experts
• "hot tubbing" and court appointed experts
• expert fees and budgets
• retaining the expert and retention letters
• instructing the expert and instructing letters
• requested opinions/questions
• factual assumptions 
• documents and other materials
• formal requirements under Rule 11-2 and 11-6
• formal requirements pursuant to s. 657.3 of the Criminal Code
• disclosure of reports/opinions
• in-chief vs. responding vs. supplemental reports

Mandeep Gill — Harper Grey LLP, Vancouver
Gloria M. Ng — Gloria Ng Law, Vancouver

BREAK (10:40 – 10:50)

The Boundaries of Expert Evidence: Novel, Social Science, and "Junk" Science Experts (10:50 – 11:35)

• novel science vs. "junk" science
• Daubert and R. v. J-LJ, 2002 SCC 51
• historical and social science experts
• the perils of faulty scientific evidence in criminal matters
• courtroom presentations and demonstrations

Brent Olthuis — Olthuis Van Ert, Vancouver
Marilyn Sandford, KC — Ritchie Sandford McGowan, Vancouver

BREAK (11:35 – 11:45)

The Expert's Perspective (11:45 – 12:15)

• the role of the expert from the expert's perspective
• what lawyers can do better when retaining and instructing experts
• practical tips on site investigations, preservation of evidence, testing protocols, joint examinations, exemplars
• written instructions, document assembly and review, factual assumptions
• report writing and review
• trial preparation 
• testimony at trial

Elvis Cepus, PhD, PEng — RJ Waldron & Company, Richmond
Christopher J. Reed, PEng — Principal, Reed Engineering Consultants Inc., Langley

LUNCH BREAK (12:15 – 1:00)

Expert Evidence: A View from the Bench (1:00 – 1:30)

The Honourable Madam Justice Carla L. Forth — Supreme Court of BC, Vancouver

BREAK (1:30 – 1:40)

Objecting to Expert Evidence (1:40 – 2:10)

• strategies and tactics for objections
• common grounds for objecting to admissibility
• compliance with s. 657.3(3) of the Criminal Code
• objecting to qualifications
• notice of objections under Rule 11-6(10)
• applying to strike reports
• objections at trial
• responding to objections

Mark Wolf — Crown Counsel, Ministry of Attorney General, Vancouver
Jill S. Yates — McCarthy Tétrault LLP, Vancouver

BREAK (2:10 – 2:20)

Direct Examination of Expert Witnesses (2:20 – 2:50)

• differences between criminal and civil practice 
• practical aspects of conducting direct examination of expert witness in a criminal trial
• when direct permitted: only where demanded or with leave: 11-7(2)
• preparing the expert for the direct testimony at trial
• qualifying the expert
• scope of direct—what is permitted and what is not? 
• operation and limits of Rule 11-7: Cambie Surgeries, 2017 BCSC 581 
• practice and art of direct examination
  • outlining instructions, assumptions, and questions asked
  • outlining methodology and analyses
  • summarizing key opinions
  • effective presentation of the evidence 
  • addressing limitations, errors, anticipating issues on cross-examination
• re-examination? when, why, and what?

Rod Flannigan — Crown Counsel, Ministry of Attorney General, New Westminster
Talya Schapiro — KazLaw Injury Lawyers, Vancouver

BREAK (2:50 – 3:00)

Cross-Examination of Expert Witnesses (3:00 – 3:30)

• theories and practice of cross-examination of experts
• bases for cross-examination: bias, qualifications, instructions, assumptions, documents, methodology, opinion on merits
• common fertile grounds for cross-examination
• scope of cross-examination
• use of learned literature in cross-examination
• recently considered issues including order of cross-examination and "sweetheart crosses" in multi-party litigation

Laura L. Bevan — Lawson Lundell LLP, Vancouver
Lisa J. Helps — Helps Law Corporation, Vancouver

BREAK (3:30 – 3:40)

Demonstration: Direct and Cross-Examination of an Expert Witness (3:40 – 4:10) 

Laura L. Bevan — Lawson Lundell LLP, Vancouver
Rod Flannigan — Crown Counsel, Ministry of Attorney General, New Westminster
Lisa J. Helps — Helps Law Corporation, Vancouver
Kaleigh Milinazzo — Fasken Martineau DuMoulin LLP, Vancouver
Talya Schaprio — KazLaw Injury Lawyers, Vancouver
Mark Wolf — Crown Counsel, Ministry of Attorney General, Vancouver

Closing Remarks (4:10 – 4:15)

Theresa Iandiorio — Crown Counsel, Ministry of Attorney General, New Westminster
Michael Parrish — Fasken Martineau DuMoulin LLP, Vancouver