Yet another reason not to trust ICBC. In the recent decision of Madam Justice Warren, Tathgur v. Dobson, 2018 BCSC 1384, the Court found as a fact that ICBC’s doctor, Dr. Grypma, was biased, lacked impartiality and acted as an advocate for the Defence. Specifically, Madam Justice Warren concluded that ICBC doctor was incapable of fulfilling his role as an expert because he “…was not able and willing to provide fair, objective and non-partisan evidence.”
Although the BC Supreme Court Civil Rules require an expert certify that he/she is aware that their duty is to provide the Court with independent assistance through objective, unbiased opinion, not all experts are capable of fulfilling that role. Tathgur v. Dobson confirms that it is not enough for an expert to state in their report that they are aware of their duty to the Court, that their report has been created in conformity with that duty, and, that if they are called upon to testify, they will give their evidence in an objective, unbiased manner. Substance does matter.
Determining the admissibility of expert reports is a two-step process. At the first step, the person who wants to rely on the expert’s evidence must establish the four threshold requirements set out by the Supreme Court of Canada in R. v. Mahon,  2 S.C.R. 9:
• an absence of an exclusionary rule; and
• a properly qualified expert.
The second step involves the trial judge deciding whether the benefits of the proposed evidence outweigh the risk of admitting the evidence.
In the Tathgur v. Dobson case, Madam Justice Warren concluded ICBC Doctor Grypma was not a “properly qualified” expert, because he was unable or unwilling to provide fair, objective and non-partisan evidence to the Court. The Court came to “… the inescapable conclusion that he (Dr. Grypma) cherry-picked entries…” that supported his opinion and “…ignoring those that undermine his opinion.” Moreover, the Court stated that because “… ICBC Doctor Grypma relied so heavily on opinions for which he had no proper foundation (it) strongly suggests that he had taken up the role of advocate for the Defence.” As a result, ICBC Doctor Grypma’s so-called expert reports were not admitted into evidence.
As the Tathgur v. Dobson case demonstrates, ICBC’s doctors should not automatically be trusted merely because they possess impressive credentials. Their opinions must be carefully examined and tested to ensure that your personal injury claim is fairly and appropriately assessed.