Court Critical Of ICBC Expert Witness For Advocating On Behalf Of Defendant

In Odian v. Carriere, the Plaintiff was injured in a rear end motor vehicle accident, and brought an ICBC claim for her injuries. By the time of trial, over six years after the accident, the Plaintiff continued to suffer from neck pain and headaches. Liability was admitted by ICBC’S lawyer. Prior to trial, the Plaintiff underwent a functional capacity evaluation by one of ICBC’S experts.


At trial, the occupational therapist who conducted the functional capacity evaluation testified that a relatively new kinesiology program would likely be helpful for the Plaintiff. The Court found such optimism to not be well based, as there was nothing in the report to justify such an opinion. The Court was also concerned about the objectivity of the evidence given by the occupational therapist, as she was at times evasive and non-responsive during cross examination on a rebuttal report that she had prepared. The Court would conclude that the occupational therapist was an advocate for the defence.


Courts are critical when an expert witness “crosses the line” from impartial opinion into advocacy. Courts expect an expert witness to assist the court, and to not be an advocate for any party. Expert reports must be prepared in conformity with the duty to assist the Court, and oral evidence must also conform with such a duty.


The Court preferred the evidence of the experts who testified that the Plaintiff’s condition was chronic, in particular the evidence of Dr. Robinson, a headache specialist.


Ms. Phillips testified that “a relatively new” kinesiology program would likely be beneficial for Ms. Odian. Ms. Phillips testified that it would take three to four weeks of participation in the program to determine if Ms. Odian would benefit. Ms. Phillips conceded that it would be less likely for benefits if the patient has had a long history of symptomology.


[48]         Ms. Phillips’ optimism that the new kinesiology program will likely improve Ms. Odian’s condition is not well based. There is no history or details that would justify her opinion. Ms. Phillips’ initial opinion as set out above was far less certain than what she said at trial.


[49]         I am concerned about the objectivity of Ms. Phillips’ opinion.


[50]         Ms. Phillips’ testimony was challenged particularly in light of a rebuttal report she had prepared. During her cross examination, Ms. Phillips was at times evasive and non-responsive. The tenor of the rebuttal report, coupled with her testimony and demeanor in court, was indicative of a witness who had become an advocate for the defence.

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