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Difference between revisions of "Small Claims Trial Preparation (20:XIII)"
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Small Claims Trial Preparation (20:XIII) (view source)
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== B. Expert Witnesses == | == B. Expert Witnesses == | ||
Expert | Expert witness testimony is not admissible unless their expertise and special knowledge is: (1) necessary for the court to understand the issues (i.e., the subject matter of the dispute is outside the knowledge of an ordinary person) (See ''[http://canlii.ca/t/1frt1 R. v Mohan]'', [1994] 2 SCR 9) or (2) provides useful context to difficult evidence for the benefit of the trier of fact (See ''[http://canlii.ca/t/glj0n Anderson v Canada (Attorney General)]'', 2015 CarswellNfld 381). | ||
Whether expert evidence is necessary is a contextual consideration and it can sometimes be unclear when it is required; however, it can be very important as a failure to provide expert evidence when it is required can result in the failure of a party’s claim. If you are unsure about whether you need expert evidence for your claim, seek legal advice. | |||
The expert’s testimony cannot include the expert’s assessment of the credibility of either the claimant or the defendant (See ''Movahed v Leung'', [1998] BCJ No. 1210; ''[http://canlii.ca/t/5c62 Brough v Richmond]'', 2003 BCSC 512 (CanLII); and ''[http://canlii.ca/t/1w9v9 Campbell v Sveinungsen]'', 2008 BCSC 381 (CanLII)). Expert witness testimony is inadmissible if it relates to issues that the court is capable of understanding and analysing without assistance (See ''[http://canlii.ca/t/2128k Sengbusch v Priest]'', 1987 CanLII 2796 (BCSC)). | |||
=== 1. Small Claims === | |||
Evidence may be given by an expert at trial or through a written report. An expert report must be the opinion of only '''one''' person. Written reports or a notice of expert testimony must be served at least 30 days before trial (Rules 10(3) and (4)). | |||
If the claimant does not serve the estimate in time, they can ask the trial judge for permission to present it anyway at trial. The claimant may or may not get permission to do so. The other party may ask for a trial adjournment to obtain his own estimate or quote. If the adjournment is granted, the claimant could be penalised and ordered to pay the other party’s expenses. | An expert witness report should include the resume or qualifications of the expert, a brief discussion of the facts of the case supporting the opinion or conclusion, the opinion or conclusion itself, and what was done to arrive at that conclusion. | ||
An exception to the “in person” rule for expert witnesses is permitted for estimates and quotes. A party may bring a written estimate for the repair of damage or a written estimate of the property value and present it as evidence at trial without calling the person who gave the estimate or quote. Parties should obtain more than one estimate or quote, especially if the sum of money involved is large. Estimates of repairs or value of property are not considered to be expert evidence (Rule 10(8)), but must be served on all other parties at least 14 days before trial. | |||
If the claimant does not serve the estimate in time, they can ask the trial judge for permission to present it anyway at trial. The claimant may or may not get permission to do so. The other party may ask for a trial adjournment to obtain his own estimate or quote. If the adjournment is granted, the claimant could be penalised and ordered to pay the other party’s expenses. | |||
2. Civil Resolution Tribunal | |||
Experts giving evidence at a CRT hearing are there only to assist the tribunal and should not advocate for a particular side or party (''Civil Resolution Tribunal Rules'' [CRTR], Rule 8.3(7)). Expert evidence may only be relied on if the party relying on it provides it to all other parties, unless the tribunal decides otherwise, within 21 days of the case manager notifying the parties that facilitation has ended or some other deadline set by the case manager or tribunal member (CRTR, Rule 8.3(1)). In addition, the person providing it must provide their qualifications and it must be accepted by the tribunal as qualified by education, training, or experience to give that opinion (CRTR, Rule 8.3(1) and (2)). | |||
A party providing written expert opinion evidence must also provide a copy of the expert’s invoice and any correspondence relating to the request opinion to every party (CRTR, Rule 8.3(4)). The tribunal can direct one or more parties to obtain expert opinion evidence and decide how the cost for these witnesses will be borne (CRTR, Rule 8.3(5) and (6)) | |||
For motor vehicle injury claims, the tribunal will determine whether additional expert evidence is reasonably necessary and proportionate through a consideration of factors which include: | |||
*The type of bodily injury or injuries; | |||
*The nature of the claim to be decided by the tribunal; | |||
*The other evidence available; | |||
*The amount claimed; | |||
*The timeliness of the request (See CRTR, Rule 8.4(1)). | |||
In addition, for disputes filed under the CRT’s motor vehicle injury jurisdiction, the tribunal may order an independent medical examination on its own behest or at the request of one of the parties (CRTR, Rule 8.5(1)). A party who cannot afford to pay the cost of obtaining expert evidence in a motor vehicle injury dispute can ask that the tribunal order another party to pay, although this is contingent on the other party’s ability to pay and the likelihood that the requesting party’s claim will be successful (CRTR, Rule 8.6). | |||
== C. Witness Preparation == | == C. Witness Preparation == | ||
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=== 3. Arranging an Interpreter === | === 3. Arranging an Interpreter === | ||
Trials and hearings are conducted in English. If a party or the party’s witness does not speak English, the party must arrange for an interpreter to be present. There is a list of interpreters available from the court registry however the court does not certify interpreters. (See ''Sandhu v British Columbia, 2013 BCCA 88 | Trials and hearings are conducted in English. If a party or the party’s witness does not speak English, the party must arrange for an interpreter to be present. There is a list of interpreters available from the court registry however the court does not certify interpreters. (See ''[http://canlii.ca/t/fw93h Sandhu v British Columbia]'', 2013 BCCA 88). A party may use any person who is competent to reliably, accurately, and competently translate what is said in court; the judge has, however, discretion to reject the party’s choice of interpreter. | ||
An interpreter should be prepared to testify as to their experience and training. An interpreter who is related to a party may be rejected on the basis of potential bias and an interpreter who is inexperienced or untrained may be rejected on the basis of incompetence. If a party does not arrange an interpreter for a hearing or if the court rejects the interpreter, the party may be liable for a penalty and the reasonable costs of the other party. The party requiring an interpreter should ask the judge at the settlement or trial conference to decide whether the chosen interpreter is acceptable. | An interpreter should be prepared to testify as to their experience and training. An interpreter who is related to a party may be rejected on the basis of potential bias and an interpreter who is inexperienced or untrained may be rejected on the basis of incompetence. If a party does not arrange an interpreter for a hearing or if the court rejects the interpreter, the party may be liable for a penalty and the reasonable costs of the other party. The party requiring an interpreter should ask the judge at the settlement or trial conference to decide whether the chosen interpreter is acceptable. | ||
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Before a document can be marked as an exhibit, it must be authenticated. The witness must identify its origins and that it is a true copy. Give the original document and a copy to the clerk and ask the clerk to show the original to the witness. Ask the witness to identify it: “I’m showing you a letter dated...”, “Do you recognize it?”, “Is this your signature?” or “Is it addressed to you?” When the witness has identified its origins and there are no objections, ask the judge to accept it as an exhibit: “May this be marked exhibit #1?” | Before a document can be marked as an exhibit, it must be authenticated. The witness must identify its origins and that it is a true copy. Give the original document and a copy to the clerk and ask the clerk to show the original to the witness. Ask the witness to identify it: “I’m showing you a letter dated...”, “Do you recognize it?”, “Is this your signature?” or “Is it addressed to you?” When the witness has identified its origins and there are no objections, ask the judge to accept it as an exhibit: “May this be marked exhibit #1?” | ||
'''NOTE:''' In exceptional circumstances, the judge may permit a witness to provide evidence by affidavit rather than testifying at trial. (See ''Withler and Fitzsimonds v Attorney General (Canada)'', 2005 BCSC 1044 (CanLII), para 18; and ''Sangha v Reliance'', 2011 BCSC 371). | '''NOTE:''' In exceptional circumstances, the judge may permit a witness to provide evidence by affidavit rather than testifying at trial. (See ''[http://canlii.ca/t/1l561 Withler and Fitzsimonds v Attorney General (Canada)]'', 2005 BCSC 1044 (CanLII), para 18; and ''[http://canlii.ca/t/fkr60 Sangha v Reliance]'', 2011 BCSC 371). | ||
'''NOTE:''' A judge may examine and compare headshots or handwriting, but should only place very limited weight on their own judgement in these situations. (See ''R. v Nikolovski'',[1996] CanLII 158 SCC; and ''R. v Abdi'', [1997] CanLII 4448 Ont CA). | '''NOTE:''' A judge may examine and compare headshots or handwriting, but should only place very limited weight on their own judgement in these situations. (See ''[http://canlii.ca/t/1fr59 R. v Nikolovski]'',[1996] CanLII 158 SCC; and ''[http://canlii.ca/t/6hcz R. v Abdi]'', [1997] CanLII 4448 Ont CA). | ||
{{REVIEWED LSLAP | date= August 16, 2020}} | |||
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