In Norris v Vomacka, 2024 ABKB 312, the Plaintiff was injured in a motor vehicle accident and sought $150,000 in general damages in addition to a loss of income claim and special damages. As a result of the collision, the Plaintiff suffered from chronic pain, psychological compromise, and functional impairments. He also had ongoing memory issues and disequilibrium which impacted his ability to work at his pre-accident capacity.
The Plaintiff submitted three expert reports to support his claim for damages, one of which suggested further assessments from a neuropsychologist and an ENT specialist to provide expert opinions on post-concussive effects and disequilibrium. However, section 558.1 (2) of the Insurance Act, RSA 2000, c I-3 only allows three expert reports to be tendered to support damages claims in a motor vehicle accident where the value of the claim is in excess of $100,000.
The Plaintiff sought leave from the Court to tender two additional expert reports to support his claim. The Plaintiff argued that reports from a neuropsychologist and an ENT specialist were necessary to account for distinct areas of his injuries that the existing reports have not addressed.
Section 558.1 (6) indicates that the Court may grant leave to allow additional expert reports on two grounds:
a) the subject matter of the additional evidence to be tendered must not already have been addressed by expert evidence; and,
b) without the additional reports, the party making the application would suffer prejudice that is disproportionate to the increased complexity and cost of the proceeding.
To consider whether the Plaintiff would suffer prejudice in this case, the Court looked at the damages claimed in the Statement of Claim and what expert evidence may be required to prove such claims. Ultimately, the Court determined that if leave is not granted, the Plaintiff would suffer prejudice as it would hinder his ability to establish some of the symptoms needed to prove his claims. In this case, prejudice outweighed the concern of additional complexity and costs. The Court indicated that these concerns could be addressed through costs award following trial.
The Court granted leave to tender additional expert reports.
Implications
The case of Norris v Vomacka represents the first opportunity for the Alberta Courts to consider the new “three-expert rule” implemented by Bill 41 and applicable to all motor vehicle actions commenced on or after January 1, 2021. The goal of Bill 41 was to increase the affordability of insurance to all Albertans. Specifically, the “three-expert rule” was implemented to prevent Plaintiff counsel for incurring high amounts of disbursements at the expense of the insurer. Insurers and lawyers alike have been waiting with bated breath for the Court’s interpretation of this rule.
The decision of Applications Judge Mattis outlines the difficulty insurers may face in contesting Applications for additional experts beyond the three-expert rule. AJ Mattis was faced with clear recommendations from Dr. Sangha that additional assessments were required, and AJ Mattis acknowledged that these were reports that the Plaintiff required to “prove his claim”.
Furthermore, AJ Mattis concluded that prejudice could only be determined at Trial, which identifies the clear issue with Applications Judges and Justices in Chambers hearing applications pursuant to 558.1 (2). Applications Judges and Justices in Chambers will be rightfully concerned about preventing a plaintiff from obtaining further expert evidence that has been demonstrated to at least have some necessity, since the risk of denying such a request is to prevent the plaintiff from having the evidence required to prove their claim.
Interestingly, AJ Mattis also relied upon the Statement of Claim to determine the heads of damage being sought, and the injuries that are alleged to have been suffered in the collision in order to determine the necessity of the additional experts. Of course, in practice this creates some difficulty as pleadings tend to be broad, and rarely provide a proper “roadmap” of a plaintiff’s claim.
AJ Mattis’ decision is not surprising having regard to the case law from other jurisdictions where similar rules are already in place (British Columbia and Ontario). Those jurisdictions have followed a similar formula. If the court is satisfied that the additional expert evidence is from a different practice area, and denying the right to additional reports would lead to prejudice, then the application will be granted.
Norris v Vomacka presents a more obvious decision to allow for additional experts than what many insurers will face, as the ENT expert and neuropsychology expert were clearly not duplicative of prior reports that had been obtained. Had this case featured a request to add a physiatry report, when an orthopaedic report and rheumatology report had already been produced, then the result may have been different, and the defendant would have had a stronger argument that the additional evidence to be tendered had already addressed by expert evidence. That argument was not available to the Defendant in this case.
An interesting argument made by the Defendant in this case was that the Dr. Sangha report that made recommendations for the ENT report and neuropsychologist report was obtained first and that the Plaintiff’s two other reports (of the three allowed under the three-expert rule) were of Ms. Bassett and Dr. Hyatt. As such, the argument was that the Plaintiff had its choice of reports, and it chose to go with Ms. Bassett and Dr. Hyatt despite the recommendation of Dr. Sangha. AJ Mattis denied this argument as the Plaintiff’s position was that all five reports were required.
Given that many motor vehicle collisions occurring after December 9, 2020 are now reaching litigation, we expect to see more and more requests (and applications made) for additional expert reports under section 558.1 of the Insurance Act.
