Welcome to our workbench on systemic challenges: a place where analysis and arguments are noted publicly to reduce the learning curve and facilitate progress. Join the running discussion as consolidated below to accelerate excellence. Email us at ideas@injurylawcentre.ca.
Systemic Challenges:
How can we reduce financial ruins or desperation, to sustain hope and survival for families in perilous proceedings?
How can we reduce wrongful civil verdicts?
Current Considerations:
(1) Review to propose a ban on opinion evidence on issues of mixed law and fact.
This proposal was submitted to the Secretary of the Ontario Civil Rules Committee in 2018 (click here to see October 23, 2018 submission, and click here to see April 22, 2021 follow up).
(2) Review to consider to propose banning opinion evidence which depends on an assessment of credibility.
In Bruff-Murphy 2017 ONCA 502 (CanLII) decision, the CA noted at para 15: The trial judge then proceeded to rule that Dr. Bail could not testify on certain sections of his report. The relevant sections were primarily where Dr. Bail was critical of the reliability of the conclusions reached by other doctors examining Ms. Bruff-McArthur. The trial judge also made clear that he did not want Dr. Bail testifying about Ms. Bluff-McArthur’s credibility. [Underlining added.]
Noting Dr. Bail was found to have nearly usurped jury function of assessing credibility of Bruff-Murphy, but experts do it all the time without stating as obviously partisan as Dr. Bail. Dr. Bail was criticized because he wrote too much and let us see the black box behind expert opinion - that there is not much expertise in that box but a lot of predictable bias. Had he written much less, as many other experts had, he would likely have been fine and escaped adverse scrutiny. Experts routinely provide only a "paucity" of expert analysis: CA on Bail in Bruff-Murphy; or commonly provide few reasons despite being required by the Rules to provide fulsome reasons: Wilson J. in Peller v. Ogilvie-Harris, 2018 motion);
This paucity is again, unsurprisingly, reported in Pucci v. Wawanesa 2020 ONCA 265 below, where the paucity could only be challenged and undermined during cross-examination at the time of trial, a point in time where over 99% (per informal and anecdotal statistics, and no known reported statistics to the contrary) of injury cases never reached because they had been settled without undermining this paucity - or "black box" - which contained improper underlying evidence.
It appears possible, if not likely, that once the Rules are amended to ban medical evidence on questions of law and mixed law and fact, the playground which generates improper evidence for medical experts in the legal arena will be drastically altered and restricted. This drastic reduction appears likely to entail a drastic loss in the improper opportunities for medical experts to opine on credibility on their way to their improper legal opinions. It is therefore possible that a ban under (1) above indirectly curtails the problem under (2) above.
Background from Supreme Court of Canada jurisprudence:
Victims of invisible injury, including those suffering from mental, psychological or psychiatric impairments, as well as chronic pain resulting from soft tissue injuries continue to face substantial hurdles in achieving fair settlements or verdicts. Employers, officials, and even physicians have subjected bona fide victims of pervasive chronic pain without objective evidence of injury to persistent suspicions of malingering (Martin vs. Nova Scotia (Workers' Compensation Board, [2003] 2 S.C.R. 504).
"Where, therefore, genuine factual uncertainty arises regarding the worthiness of a claim, this can and should be addressed by robust application of those elements by a trier of fact, rather than by tipping the scales via arbitrary mechanisms (R. Stevens, Torts and Rights (2007), at p. 56). Certainly, concerns about “subjective” symptoms or about feigned or exaggerated claims of mental injury are — like most
matters of credibility — questions of fact best entrusted to the good sense of triers of fact, upon whose credibility determinations of liability and even of liberty often rest. In short, such concerns should be resolved by “a vigorous search for the truth, not the abdication of judicial responsibility" (Linden and Feldthusen, at p. 449; see also Toronto Railway Co. v. Toms (1911), 44 S.C.R. 268, at p. 276; Stevens, at p. 56).": Saadati v. Moorhead, 2017 SCC 28, para. 22, emphasis added.
Running Observations and Discussion:
December 12, 2021
We started to research on CanLii text using Mohan & "ultimate issue", and randomly reviewed the first listed, highest court decision in Saskatchewan: Saskatchewan v. Kotyk 2013 SKCA 140 CanLII. The Court cited another text where the authors appeared to opine that experts are allowed to provide opinion evidence even on "legal analysis". The authors misapprehended Mohan in our respectful view. The Court of Appeal appeared to accept the erroneous text but in our view ultimately came to the right result but by way of unnecessary and wrong reasons. The reasons however illustrate as to why the correct reading of Mohan is that experts cannot opine on any legal analysis because legal analysis is within the knowledge of the judge, or in other words, correctly understanding Mohan, legal analysis is outside the expertise of ordinary factual experts. This case is an example which the Supreme Court of Canada should review as a reason to revisit Mohan to clarify that "ultimate issue" evidence as discussed in Mohan is presumed to be factual evidence ONLY.
(iv) Expert Evidence
[41] The Director submits the Chambers judge erred either by overlooking or rejecting Lise Gray’s opinion that the money was either an instrument of, or proceeds of, unlawful activity.
[42] As previously noted, the Chambers judge qualified Lise Gray as an expert “with respect to illicit drug activities and practices” and relied on her evidence to show that the “denominations and packaging are consistent with denominations commonly used in the drug trade.” The Chambers judge did not, however, mention her opinion regarding the likely source or intended use of the money. She said this of the matter at para. 88 of her affidavit:
Based on the information reviewed, as indicated above, and my training and experience, it is my opinion that the $13,500.00 in bundled currency was derived directly or indirectly from the trafficking of illicit drugs and is thus proceeds of unlawful activity or is an instrument of unlawful activity in that it is likely to be used to engage in unlawful activity that, in turn, would be likely to or is intended to result in the acquisition or production of other property. [Appeal Book at p. 20]
[43] Since the Chambers judge made no mention of this, it may be inferred that he either overlooked it or rejected it. However, since the expert’s opinion expresses a conclusion on the ultimate issue before the Chambers judge, it is important to review the state of the law on this issue.
[44] The leading case on expert evidence in Canada is R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. In that case, Sopinka J., for the unanimous Supreme Court of Canada, set out four factors for the admission of expert evidence: (1) relevance; (2) necessity in assisting the trier of fact; (3) the absence of any exclusionary rule; and (4) a properly qualified expert. Regarding the second point (the necessity criterion), Sopinka J. wrote at pp. 24-25:
As in the case of relevance, discussed above, the need for the evidence is assessed in light of its potential to distort the fact-finding process. As stated by Lawton L.J. in R. v. Turner, [1975] Q.B. 834, at p. 841, and approved by Lord Wilberforce in Director of Public Prosecutions v. Jordan, [1977] A.C. 699, at p. 718:
"An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. In such a case if it is given dressed up in scientific jargon it may make judgment more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think it does."
The possibility that evidence will overwhelm the jury and distract them from their task can often be offset by proper instructions.
There is also a concern inherent in the application of this criterion that experts not be permitted to usurp the functions of the trier of fact. Too liberal an approach could result in a trial's becoming nothing more than a contest of experts with the trier of fact acting as referee in deciding which expert to accept.
These concerns were the basis of the rule which excluded expert evidence in respect of the ultimate issue. Although the rule is no longer of general application, the concerns underlying it remain. In light of these concerns, the criteria of relevance and necessity are applied strictly, on occasion, to exclude expert evidence as to an ultimate issue. Expert evidence as to credibility or oath-helping has been excluded on this basis. [emphasis added]
In summarizing the four principles to be applied, the Court stated at p. 25:
[I]t appears from the foregoing that expert evidence which advances a novel scientific theory or technique is subjected to special scrutiny to determine whether it meets a basic threshold of reliability and whether it is essential in the sense that the trier of fact will be unable to come to a satisfactory conclusion without the assistance of the expert. The closer the evidence approaches an opinion on an ultimate issue, the stricter the application of this principle. [emphasis added]
[45] “Ultimate issue” concerns have thus been subsumed into the general Mohan analysis of the admissibility of expert evidence.
[46] Alan W. Bryant, Sidney N. Lederman and Michelle K. Fuerst, the authors of The Law of Evidence in Canada, 3rd ed. (Markham: LexisNexis, 2009), after a review of the treatment of this rule, summarize the current state of the law as follows at pp. 833-84:
In the final analysis, the closer the experts’ testimony approaches an opinion on the ultimate issue, the stricter the courts will apply the requirements of reliability and necessity before admitting such evidence. This is so because the evidence then begins to overlap not only the fact-finding function of the court but the legal analysis that must be applied to the facts in rendering the ultimate decision.
It is now generally said that if expert testimony is rejected it is excluded not because of any “ultimate issue” doctrine, but because such evidence is superfluous and the court can just as readily draw the necessary inference without any assistance from an expert or alternatively, the trial judge may give an appropriate instruction to the jury. However, trial judges as gatekeepers must be alert to the extent of the expert’s influence over juries, especially if the opinion deals with a fundamental issue that is within the province of the jury. [emphasis added]
[47] Mindful of this, we cannot know on what basis the Chambers judge either ignored or rejected the opinion evidence of Lise Gray regarding the likely source or intended use of the money. We do know, however, that he was not necessarily bound to accept her opinion in this regard and that, as a matter of principle, it was open to him to have rejected it on the footings it was superfluous and related to a matter in respect of which he did not need her assistance in drawing proper inferences from the facts as a whole. Indeed, much of Lise Gray’s reasoning in this regard is based on common sense and did not relate to the drawing of inferences relative to a matter beyond the experience of the Chambers judge. For instance, the Chambers judge did not need expert evidence to help him understand the implications of the strange and changing and conflicting stories told by the two men while under criminal investigation. Nor did he need expert evidence to assist him in understanding the general implications of the possession by the two men of a huge amount of hidden and strangely assembled cash for the purported purpose of legitimate commercial transactions of the kind and magnitude they said they had in mind. And on it goes. It might be noted that Lise Gray’s reasoning in relation to the likely source and intended use of the money, when viewed in the context of the whole of the facts of the case, is essentially the same as the reasoning employed by the Director in his submission to the Chambers judge. The issue reduced to what inferences of fact the Chambers judge might properly have drawn in relation to the ultimate issue he was called upon to decide.
[48] The point is threefold. First, it is difficult in the circumstances to say the Chambers judge erred in principle in either ignoring or rejecting the opinion evidence of Lise Gray regarding the ultimate issue he was called upon to decide. Second, it was for the Chambers judge to decide the ultimate issue having regard for what inferences of fact in this regard could reasonably be drawn from the established facts, bearing in mind the standard of proof applicable to the case. Third, the opinion evidence of Lise Gray in respect to the matter under consideration was not of such quality as to carry much, if any, weight in the assessment of an experienced Chambers judge. In sum, the appeal is not destined to succeed or fail on this ground.
December 7, 2021
Flawed expert evidence induces miscarriages of justice. In catastrophic injury cases, such flawed evidence may effectively impose wrongful life sentences of avoidable pain and suffering.
Read a proposed change to the Ontario Rules of Civil Procedure to exclude expert opinion evidence which goes beyond questions of fact and into questions of mixed law and fact: click to read letter to the Rules Committee, October 23, 2018, and letter to Rules Committee April 22, 2021. However, this proposal has been again rejected by the research arm of the Committee on December 1, 2021 for the reason that it is beyond the scope and function of the Committee. We respectfully do not agree. The Rules have been used to codify and to reverse the common law, and therefore the scope and function of the Committee does not preclude its codification of the correct common law on expert opinion evidence. There are other examples, we believe, but here we cite one additional example, namely the deemed undertaking rule. This rule came about as a result of a reasoned preference by Morden A.C.J.O. in Goodman v. Rossi (1995), 1995 CanLII 1888 (ON CA), 24 O.R. (3d) 359 (C.A.) where he wrote:
It is relevant to an examination of the question before us to consider whether the law on this subject may more properly be legislated by the Civil Rules Committee in the form of additions to the Rules of Civil Procedure rather than declared by the courts as cases arise. O'Leary J. was of the view that "if the time comes when it appears that a rule may be necessary to protect privacy infringed by the discovery process that rule should be framed by the Rules Committee, not the court".
I think that it is preferable that the rule we are considering be set forth as part of the discovery rules in the Rules of Civil Procedure rather than in the case-law. This does not mean, however, that I think that the responsible course to take now would be to hold that there is no implied undertaking rule and that there will not be one until the Civil Rules Committee has acted. I say this because, as I have said, the recognition of the implied undertaking rule in Ontario is properly supported on the basis of precedent and policy. Further, as I have noted, it has been steadily recognized in this jurisdiction for the last ten years. Recognition of the rule by the courts does not, of course, preclude the Civil Rules Committee from legislating on the subject as it sees fit.
The advantage of incorporating the law on this subject into the Rules of Civil Procedure is that the rules can deal with the subject completely and comprehensively, something that is not really possible or proper within the confines of a single case -- and it even can be difficult in a series of cases. A properly drawn rule could meet possible concerns about legislation stultifying the development of the law as new circumstances arise. It could give clear guidance on the nature and scope of the obligation not to make improper use of material obtained on discovery and the exceptions to the rule in the form of relief granted by the court, by conferring discretion on the court, where appropriate, to be exercised having regard to stated factors: see, for example, rule 31.11(7). Further, any identified shortcomings in the rules can be amended more quickly than those in judicial decisions if the field were left to be entirely occupied by case-law. [Underlining added.]
As the option of amending the Rules to prevent expert-induced miscarriages of justice appears to be repeatedly closed (per the research arm of the Committee, although not by the A.C.J.O. or the C.J.O., yet), we are alternatively considering intervening on an appropriate case before the Ontario Court of Appeal or preferably the Supreme Court of Canada before its leave to appeal is decided, seeking first for leave and ultimately for a restatement that expert opinion evidence, as discussed in the R. v. Mohan Supreme Court decision, is to be restricted to only factual opinion evidence, not evidence on anything else but facts alone, and hence not evidence on issues of mixed law and fact.
In Mohan, the late legal giant Sopinka J. appeared to have not thought that it was necessary to clearly state this obvious, axiomatic restriction on expert opinion evidence as the first criterion, although he did refer to the implied context of the "fact-finding" process, and assistance for the trier of "fact". (Sadly, he passed prematurely on November 24, 1997, not long after Mohan had been released in November 1994.) This restriction is much more clearly set out in the seminal textbook on evidence bearing his name as to leave no reasonable doubt that common law expert opinion evidence can not be on any issue but fact alone (see Sopinka, Lederman, Bryant: The Law of Evidence in Canada, LexisNexis Butterworths, 2nd Ed. 1997, Chapter 12, commencing para. 12.25). Unfortunately, however, when the less-than-direct references to this restriction on expert evidence are overwhelmed by his direct restatement in Mohan that there is no longer a general prohibition against expert opinion evidence on an "ultimate issue", an inevitable result follows, namely that the restriction is overlooked, hence wrongly lifted, by many legal professionals and lawmakers inadvertently.
This oversight has contributed to subsequent jurisprudence where experts are routinely permitted to opine on the very legal disputes (overwhelmingly of mixed law and fact in nature) being adjudicated by triers of fact (juries and judges) and statutory decision makers at various tribunals. Some of such jurisprudence has been discussed in our submission to the Rules Committee above. Since our above submission, we also uncovered similar jurisprudence, for example, at the Ontario Municipal Board, and the Local Planning Appeal Tribunal (LPAT) which are continued in 2021 as the Ontario Land Tribunal. There, experts have practically become statutory adjudicators before this Tribunal, without of course having been delegated statutory authority to do so by the Ontario Legislature. Experts there are routinely permitted to opine even as to what is in "the public interest"! (See for example, Canadian Rental Development Services Inc. v. Ottawa (City), 2021 CanLII 770 (ON LPAT), para. 44.) What is in the public interest has always been a complex matrix of law and fact, often further intertwined with policy, discretion and assessment of credibility of witnesses which are exclusively vested in judges, juries, or statutory decision makers. Such opinions on the public interest ought never be permitted from opinionated experts, as such opinions, more accurately described as judgments, ought never be covered by or sold for an expert fee.
In observing the misapplication of Mohan in the analysis of other jurisprudence by various statutory tribunals, where a large number of adjudicators or decision makers are not legally trained and where they readily and summarily concluded that they needed "experts" to assist them to decide legal disputes that only they are exclusively authorized to do, amending the Rules of Civil Procedure does not go far enough and is not the best option, although one of the good steps.
Another possible step is to discuss, debate and persuade the authors Fuerst, Lederman, and Bryant on their treatment of the subject in The Law of Evidence in Canada, 3rd ed. (Markham: LexisNexis, 2009), citing Saskatchewan v. Kotak SKCA 2013 CanLII in December 12, 2021 entry above.
December 2, 2021:
Noting an older SCC decision, R. v. Marquard, [1993] 4 S.C.R. 223, where experts were barred from offering opinion evidence on credibility (cited in R v. Mohan - and this, in our view, raises the question of why do we permit participant (not treating) medical experts to provide opinion evidence which relies on their underlying assessment of credibility?)
"It is a fundamental axiom of our trial process that the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert opinion. This Court affirmed that proposition in R. v. Béland, supra, at p. 408, in rejecting the use of polygraph examinations as a tool to determine the credibility of witnesses:
From the foregoing comments, it will be seen that the rule against oath‑helping, that is, adducing evidence solely for the purpose of bolstering a witness's credibility, is well grounded in authority.
A judge or jury who simply accepts an expert's opinion on the credibility of a witness would be abandoning its duty to itself determine the credibility of the witness. Credibility must always be the product of the judge or jury's view of the diverse ingredients it has perceived at trial, combined with experience, logic and an intuitive sense of the matter: see R. v. B. (G.) (1988), 65 Sask. R. 134 (C.A.), at p. 149, per Wakeling J.A., affirmed [1990] 2 S.C.R. 3. Credibility is a matter within the competence of lay people. Ordinary people draw conclusions about whether someone is lying or telling the truth on a daily basis. The expert who testifies on credibility is not sworn to the heavy duty of a judge or juror. Moreover, the expert's opinion may be founded on factors which are not in the evidence upon which the judge and juror are duty‑bound to render a true verdict. Finally, credibility is a notoriously difficult problem, and the expert's opinion may be all too readily accepted by a frustrated jury as a convenient basis upon which to resolve its difficulties. All these considerations have contributed to the wise policy of the law in rejecting expert evidence on the truthfulness of witnesses."
August 24, 2021:
One apparently possible way to reduce the potential impact of wrongful reliance on expert evidence in the civil system is to consider an application of the framework in the criminal system as required by the SCC in R. v. W.(D)., cited in the recent Aug. 19, Ontario CA decision below, R. v. K.J., 2021 ONCA 570 (CanLII):
[16] The appellant raises several grounds of appeal. To dispose of this appeal, it is necessary to address only the ground that the trial judge erred in her assessment of the expert evidence concerning the cause of N.T.’s head injury.
[17] As I shall explain, the trial judge’s approach to assessing the expert evidence on causation was flawed. She first chose which expert she preferred and then viewed the other expert’s evidence and the rest of the trial evidence through that lens. This was an error. The trial judge should have considered the expert evidence, along with all the other evidence at trial, through the analytical framework prescribed by the Supreme Court in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, to determine whether the Crown had met its heavy burden of proving the appellant’s guilt beyond a reasonable doubt.
[18] In the case of conflicting expert evidence that is crucial to understanding the material issues to be decided, it is tempting for a trier of fact merely to choose one expert over another, and to allow an expert witness’s evidence to distort the fact-finding process and overtake the task of objectively assessing the totality of the evidence at trial: R. v. Parnell (1983), 1983 CanLII 3602 (ON CA), 9 C.C.C. (3d) 353 (Ont. C.A.), at p. 364, leave to appeal refused, [1984] S.C.C.A. No. 333; R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at p. 21. It is common ground that such an approach constitutes legal error. Unfortunately, that is what occurred in this case.
[19] A trier of fact must be careful to consider all of the evidence through the W.(D.) analytical framework. Specifically, to convict an accused, a trier of fact must be satisfied beyond a reasonable doubt, based on the totality of the evidence, that all the elements of the charged offence have been proven. This means that the evidence of each witness has to be assessed in the light of the totality of the evidence without any presumptions except the general and over-riding presumption of an accused person’s innocence: R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230, at para. 32. Expert evidence is only a part of the evidence that a trier of fact is required to assess in order to determine if the Crown has proven an accused’s guilt beyond a reasonable doubt: see R. v. Wade (1994), 1994 CanLII 10562 (ON CA), 18 O.R. (3d) 33 (C.A.), at p. 43, rev’d in part, 1995 CanLII 100 (SCC), [1995] 2 S.C.R. 737; R. c. Blackburn, 1999 CanLII 13509 (Que. C.A.), at p. 23; and R. v. Smith (2001), 2001 CanLII 20968 (ON CA), 161 C.C.C. (3d) 1 (Ont. C.A.), at para. 117, leave to appeal refused, [2002] S.C.C.A. No. 156.
July 24, 2021:
By a random review out of general curiosity on recent caselaw reported in the Ontario Reports, another decision of the Ontario Court of Appeal again illustrates the pervasive incidence of expert opinion evidence on questions of mixed law and fact. The Court in Parliament (Litigation Guardian of) v. Conley, 2021 ONCA 261, reported, for example, that "Dr. Ahuja opined that Dr. Park fell below the standard of care because..." [para. 22], and "Dr. Bruce opined that both Dr. Conley and Dr. Park met the standard of care." [para. 23]
The problem, in our view, is that it appears to us that the standard of care necessarily involves a legal construct, a legal test, or a legal threshold. The practice as reported in Parliament appears to contradict the bar against such expert evidence in Pucci, a recent Ontario Court of Appeal decision (discussed below in February 2021 entry).
This pervasive practice appears similar to a tax evasion case against an accused where both sides called accountants to opine whether or not the accused was committing tax evasion! If the courts permit accountants to do so, why would they not be hired by diligent lawyers and get paid to do that. Fortunately, current practice does not suggest that this has occurred in the above criminal law practice, but in medical malpractice and personal injury cases, and likely family law as well as land use and development law, it has. Family law practice was earlier alluded to below. In land use and development law, it is routine that both sides (the municipality and the land developer) call expert evidence to opine on whether or not a proposed development is consistent with provincial legislation, policies and guidelines, as to constitutes "good planning" - which all involve issues or questions of law, or at least questions of mixed law and fact.
April 12, 2021:
Further review is required to consider whether the Ontario Court of Appeal decisions of Beaudoin Estate (below in this entry), and Pucci v. Wawanesa (below in February 2021 entry) are partly inconsistent with the Supreme Court in Clements v. Clements (cited and copied in part in this entry).
The Supreme Court appears to imply that causation issue is a factual inquiry that involves pure questions of fact, and without any underlying or mixed legal question. But Pucci demonstrates that causation involves legal question (hence not a pure question of fact) and rejects the medical opinion admitted at trial.
(What are questions of law, fact, and mixed law and fact? A definition by the Supreme Court of Canada is cited in our submission to the Ontario Civil Rules Committee which is attached at the link above near the beginning of this webpage.)
Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57 (MacPherson, Zarnett and Jamal JJ.A.):
[37] But causation involves a factual inquiry: Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 13; Ediger v. Johnston, 2013 SCC 18, [2013] 2 S.C.R. 98, at para. 29; and Campbell v. Bruce (County), 2016 ONCA 371, 349 O.A.C. 302, at para. 55, leave to appeal refused, [2016] S.C.C.A. No. 325. Such a factual issue should generally not be determined on a motion to determine a question of law under r. 21.01(1)(a).
In Clements, the Supreme Court wrote:
[13] To recap, the basic rule of recovery for negligence is that the plaintiff must establish on a balance of probabilities that the defendant caused the plaintiff’s injury on the “but for” test. This is a factual determination. Exceptionally, however, courts have accepted that a plaintiff may be able to recover on the basis of “material contribution to risk of injury”, without showing factual “but for” causation. As will be discussed in more detail below, this can occur in cases where it is impossible to determine which of a number of negligent acts by multiple actors in fact caused the injury, but it is established that one or more of them did in fact cause it. In these cases, the goals of tort law and the underlying theory of corrective justice require that the defendant not be permitted to escape liability by pointing the finger at another wrongdoer. Courts have therefore held the defendant liable on the basis that he materially contributed to the risk of the injury.
[14] “But for” causation and liability on the basis of material contribution to risk are two different beasts. “But for” causation is a factual inquiry into what likely happened. The material contribution to risk test removes the requirement of “but for” causation and substitutes proof of material contribution to risk. As set out by Smith J.A. in MacDonald v. Goertz, 2009 BCCA 358, 275 B.C.A.C. 68, at para. 17:
. . . “material contribution” does not signify a test of causation at all; rather it is a policy-driven rule of law designed to permit plaintiffs to recover in such cases despite their failure to prove causation. In such cases, plaintiffs are permitted to “jump the evidentiary gap”: see “Lords a’leaping evidentiary gaps” (2002), Torts Law Journal 276, and “Cause-in-Fact and the Scope of Liability for Consequences” (2003), 119 L.Q.R. 388, both by Professor Jane Stapleton. That is because to deny liability “would offend basic notions of fairness and justice”: Hanke v. Resurfice Corp., para. 25.
[15] While the cases and scholars have sometimes spoken of “material contribution to the injury” instead of “material contribution to risk”, the latter is the more accurate formulation. As will become clearer when we discuss the cases, “material contribution” as a substitute for the usual requirement of “but for” causation only applies where it is impossible to say that a particular defendant’s negligent act in fact caused the injury. It imposes liability not because the evidence establishes that the defendant’s act caused the injury, but because the act contributed to the risk that injury would occur. Thus, this Court in Snell and Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, raised the possibility of a material contribution to risk approach. The English law takes the same approach, as discussed below.
[16] Elimination of proof of causation as an element of negligence is a “radical step that goes against the fundamental principle stated by Diplock, L.J., in Browning v. War Office, [1962] 3 All E.R. 1089 (C.A.), at 1094-95: ‘. . . A defendant in an action in negligence is not a wrongdoer at large: he is a wrongdoer only in respect of the damage which he actually causes to the plaintiff’”: Mooney v. British Columbia (Attorney General), 2004 BCCA 402, 202 B.C.A.C. 74, at para. 157, per Smith J.A., concurring in the result. For that reason, recourse to a material contribution to risk approach is necessarily rare, and justified only where it is required by fairness and conforms to the principles that ground recovery in tort.
April 9, 2021:
US Supreme Court decision Google v. Oracle (click here for decision) - fair use in copyright cases is a mixed question of fact and law, and its jury is not vested with the power on deciding a question of law.
In this copyright infringement case, the Supreme Court held that Google could avail itself of the fair use defence to overcome Oracle's claim that Google's copying some 11,500 lines of Java computer program code belonging to Oracle was a copyright infringement. The jury found in favour of Google, but its verdict was set aside on first appeal. The Supreme Court then overturned the appellate court, and found in favour of Google.
Regarding a question of mixed law and fact, we note from the headnotes of the decision:
"The fair use question is a mixed question of fact and law. Reviewing courts should appropriately defer to the jury’s findings of underlying facts, but the ultimate question whether those facts amount to a fair use is a legal question for judges to decide de novo. This approach does not violate the Seventh Amendment’s prohibition on courts reexamining facts tried by a jury, because the ultimate question here is one of law, not fact. The “right of trial by jury” does not include the right to have a jury resolve a fair use defense. Pp. 18–21." [Emphasis added.]
For our purpose, the decision should warrant a closer review to determine if it would shine a different light into our practices in Ontario. The headnotes appear consistent with defence's practice in Ontario of putting the questions of not only threshold, but also of legal causation to the trial judge as preliminary issues to potentially take the quantification of damages away from the jury - given that without legal causation, damages determination might be moot. We observed that legal causation had recently been put to the trial judge by defence counsel in at least one apparently reported decision within the past couple of years or so.
For our purpose, furthermore, if a jury does not have power to decide what is ultimately a legal question such as legal causation, then it suggests that medical expert opinion evidence on legal causation, and on all questions of mixed fact and law, appear to be perplexing or problematic and ought to be reviewed, on the foregoing discussion alone and apart from any other possible grounds.
March 2021 - a tragic case:
Brown v. Kagan, 2018 ONSC 564 CanLII: medical expert opinion on issues of mixed law and fact in family law cases
A tragic case from the family justice area in which, after court decisions and dozens of court orders, death of a four year old child occurred together with death of the parent who was caring for her at the time.
We want to focus here from a limited angle of some issues arising out some expert evidence in the court decision Brown v. Kagan, 2018 ONSC 564 CanLII, and in particular the expert of evidence of Dr. P. S., a psychiatrist with 30 years' experience in Ontario. He spent about 230 hours on this case, and his normal range in a normal case is about 140-200 hours (commencing at para. 51). His report is 220 pages long, and it cost a startling $80,000. His average report of about 170 hours would therefore cost about $60,000. Why so much, and how much proper use of it was needed in court, one wonders. Is it another symptom of a broken system, not just in cases involving injury justice, but this time in the area of family justice? It seems yes to us.
Let's look at the purpose of the report, noting that it was made pursuant to s. 30 the Ontario Children's Law Reform Act, which appears to read in part:
Assessment of needs of child
30 (1) The court before which an application is brought for a parenting order or contact order with respect to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child. R.S.O. 1990, c. C.12, s. 30 (1); 2020, c. 25, Sched. 1, s. 8 (1).
While we are not experts in family law, we only cite here some quick observations which are of concern to us, in our pursuit of screening improper expert evidence. It may in fact be positive that we are not experts in family law, because we may perhaps observe from a more detached and unvested perspective.
1. Why did Dr. S need to become effectively a trial judge before the actual trial, and determine whether many facts occurred including for example whether or not the alleged assault incident involving shoving a dead mouse into the mouth of a party actually occurred?
Was Dr. S. delegated by the Court to perform factual assessment of the potentially numerous incidents in any case regarding credibility, i.e. lies, truths and those in between?
If the assessment of "the ability and willingness of the parties ... to satisfy the needs of the child" involves an assessment of credibility, has the Court abdicated its jurisdiction on the matter, and furthermore, has the expert exceeded his jurisdiction under the Act? The expert evidence appears extraneous and improper. A judge needs help to assess credibility? No. Is the legal system outsourcing its ordinary fact determination role to a cottage industry of ordinary fact checkers under the guise of the exceptional expert opinion evidence? Through inadvertence, facilitated by a crushing workload upon the judges, it appears so to us.
2. Dr. S was noted to have consulted "many experts and others during his assessment" and the lawyer argued that his report "should be given considerable weight." (Para. 87)
Why would an expert need to access another expert in his assessment? Was Dr. S. conducting a trial before the Court trial? So what exactly is Dr. S.'s expertise?
If we cannot define the scope of assessment precisely, little wonder it seems to us that Dr. S. had become a judge of a trial before the actual trial. This naturally leads to open-ended assessments and run-away expert costs.
3. How much of the 220 pages long and $80,000 report by Dr. S. constitute proper and necessary evidence for the trial judge?
We would boldly assert that a proper report that does not venture into many issues of mixed law and fact would cut down the costs and length of such a report to less than 25% of its current costs and length. Duration and costs of trial in custody and access cases could be cut down by at least 50% as a result of the reduction of dubious expert evidence, once the practicing bar fully appreciates that extraneous evidence will be met with effective adverse sanctions. (In the event that the reader is interested in our further reasons, facts, and analysis as to why we boldly stated the above projected costs savings, please do not hesitate to email us at ideas@injurylawcentre.ca. We would be both obliged and privileged to discuss.) Below is our scrutiny of expert evidence in the case, particularly Dr. S.'s expert evidence.
Dr. S.'s evidence included opinion evidence on numerous issues including but not limited to:
(a) the scheduling of custody and access;
(b) overnight access;
(c) the ability of a parent to care for a child;
(d) past conduct of a parent on how it may impact ability to parent;
(e) whether credibility of a certain type or lack thereof on the part of a parent would impact ability to parent; and
(f) best interests of the child.
The serious problem is that all of the above listed issues are issues of mixed law and fact, and they are not issues of fact alone or expert inferences of facts from facts alone. Dr. S. ought to have been kept squarely within a well defined and proper expert role. We do not think that it could have been intended by the legislature for Dr. S. to venture into providing evidence which requires a full understanding of the complex family law jurisprudence which informs and dictates the determination of the above issues.
From reviewing the above decision, the issue of overnight access is impacted by and hence governed by caselaw. Such law was cited, see for example para. 176, to guide decisions of the judges. So when Dr. S. makes a recommendation on overnight access, what is he guided by when he had not been professionally trained. Even if he were legally trained, are our trial judges not qualified to perform their jobs of applying law to facts such that they needed someone to help them how to do it? No, that is their job, and their job alone without help from any expert, as mandated by the role of the judiciary under fundamental constitutional principles.
Similarly, the "maximum contact principle" is law and may be judicially modified where appropriate in the caselaw (see para. 181). This principle underlies decisions on a co-parenting schedule. This is another issue of mixed law and fact and as such is beyond the scope of evidence or recommendation by Dr. S.
"Ability to parent" is another issue of mixed law and fact, as affirmed by past judicial treatment, see for example para. 177.
As to "past conduct", there were indeed some statutory provisions cited to govern the relevance of such conduct (see para. 149), making a determination of any relevance of past conduct an exercise on issues of mixed law and fact. The provisions cited include:
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.
Same
(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.
Similarly for "best interests of child" at para. 149:
24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
Finally, as to credibility and whether some lies may impact ability to parent, the judge explained at length various judicial treatments, and directions or instructions on the subject, including whether or not unusual/startling sexual activities of a parent impacts the ability to parent. Suffice to say that there is no role for Dr. S. to attempt to parse and understand the evolving law in order to apply his judgment, even in the extremely unlikely event that he was trained and versed in the legal issues, given that the application of facts to the law to make a decision on custody and access is that for the trial judge alone.
An article in Toronto Life magazine by Rachel Heinrichs (November 2020) covered the above tragic case, and observed in regards to assessments such as Dr. S.'s, that:
Parenting assessments have proliferated in lockstep with high-conflict cases over the last decade, and assessors are controversial in the world of family law because they aren’t necessarily experts in custody issues or family abuse and they have no central regulating body. An assessor simply needs to be a mental health professional—a social worker, psychologist or psychiatrist—who will visit the family, interview relatives and draw on psychological testing of the parents. Together, they comprise a cottage industry of professionals who can charge up to $400 an hour. Assessors are hotly debated in online forums by aggrieved parents who have strong opinions about their opinions: many of them gain a reputation for favouring fathers over mothers and vice versa, and lawyers advise their clients to choose accordingly. The College of Psychologists of Ontario has reported that 25 per cent of formal complaints made against its members relate to custody and child protection.
We would submit that when experts opine on issues of mixed law and fact - for which they are not qualified - their opinions are prone to be opinions one merely "happens to have". Over time, such opinions tend to align with the interests of the side which retains and pays for them, as inevitably reported in the article. This is the same experience going on for decades in personal injury law for the same apparent problem of improper expert evidence. We hope that there will be meaningful opportunities, however sad and belated, to examine the apparent improper role of current opinion evidence and its massive related costs which contribute to the continuing utter despair and financial ruins frequently seen in family justice.
A cheaper, quicker system - merely as a result of a much better-defined, and responsive scope of expert evidence - promises to critically save people's finances with related self-worth, acrimony, hopelessness, and even tragic ends.
February 2021:
Pucci v. Wawanesa, 2020 ONCA 265: opinion on causation was a legal opinion and hence improper.
It is noted that in April 2020, the Court of Appeal observed that improper medical expert evidence had been admitted by the trial court in Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265. The Court of Appeal held that Dr. Ozersky's opinion on causation was in fact a legal opinion, and based, unsurprisingly, on a wrong understanding of legal concepts. Those paragraphs (67-71) are reproduced below for ease of reference.
Takeaway: We note that the legal opinion by Dr. Ozersky, offered and accepted below as medical opinion, is very routinely commissioned and tendered below because no one has reportedly challenged such practice at trial level (see paras. 11-14 below where the trial judge did not note any objection by any party or by the Court). A lawyer might even face a negligent lawsuit for proceeding to trial without such legal opinion because they would appear to depart from, and fall below, the expected practice or standard of care. In short, no injury lawyer would risk challenging the practice at trial, and therefore the runaway expert costs and continuing risks of flawed civil verdicts continue unabated. The most promising, prompt and effective prevention of such flawed expert evidence appears to be an immediate change to the Rules of Civil Procedure.
[11] Dr. Ozersky, Wawanesa’s expert, opined that Ms. Pucci’s symptomatology reflected her underlying psychiatric problems and were not the product of injury caused by the accident. In his report, Dr. Ozersky acknowledged the significant deterioration in Ms. Pucci’s condition post-accident, but said:
"I find it hard to imagine that an accident of this nature could be responsible for this woman’s psychological regression, neither do I believe there is any head injury involved of any significance."
[12] Nowhere in the report does Dr. Ozersky explain what he meant when he said the accident was not “responsible” for Ms. Pucci’s psychiatric condition. In his testimony, he explained his understanding of causation:
"My test is on the balance of probabilities, was the accident responsible for her conversion disorder? And my answer would be no, it was not responsible. Her pre-existing history of sexual assault, drug abuse, depressions that’s what, working, those factors working together created the circumstance for a conversion disorder. The accident may have been the a trigger but in itself it would not be sufficient to cause a conversion disorder." [Emphasis added.]
[13] As I understand Dr. Ozersky’s evidence, he believed the accident was not “responsible” for Mr. Pucci’s subsequent psychiatric disorders for two reasons. First, he believed Ms. Pucci’s pre-accident condition put her on the edge of total emotional disintegration such that the slightest event could push her into the psychiatric disorders she developed post-accident. Consequently, because she was so close to disintegration, the accident could not be said to be “responsible” for her condition, even though it triggered the development of that condition. Second, Dr. Ozersky explained that the accident was not “responsible” for Ms. Pucci’s condition because the accident alone could not have caused that condition.
[14] The trial judge, after reviewing the evidence of the two experts, accepted Dr. Feinstein’s opinion that Ms. Pucci’s conversion disorder was triggered by the motor vehicle accident. The trial judge, at para. 83, referred to the accident as “the tipping point in the plaintiff’s ability to function on a day-to-day basis”. She said, at para. 84:
"I conclude that, but for the collision, Ms. Pucci would not have suffered the conversion disorder described by her physicians. This disorder catastrophically impairs her ability to function from a mental or behavioural perspective."
. . .
[67] The steps an insurer must take to fulfil its good faith obligations will depend on the specific circumstances. Here, Wawanesa knew that Dr. Ozersky’s causation opinion contradicted the position Wawanesa had taken for two years. Wawanesa also knew that Dr. Ozersky’s opinion stood alone. Finally, Wawanesa appreciated Ms. Pucci’s vulnerability. She was catastrophically impaired and very much in need of the household and attendant care services she claimed. She could not fund those services on her own. These facts dictated that Wawanesa take a long careful look at Dr. Ozersky’s causation opinion before relying on it to deny benefits.
[68] There is merit in Ms. Pucci’s submission that Dr. Ozersky’s opinion on causation would not have withstood a critical analysis by Wawanesa. As counsel points out, Dr. Ozersky’s concession in cross-examination, that the car accident “triggered” Ms. Pucci’s condition seems entirely inconsistent with the assertion that the car accident did not cause her condition. The trial judge specifically referred to Dr. Ozersky’s concession in cross-examination in finding that the accident was the immediate cause of Ms. Pucci’s condition.
[69] There is an additional problem with Dr. Ozersky’s opinion, that may also assist in determining whether Wawanesa acted reasonably in relying on that opinion. In his report, Dr. Ozersky indicated that the accident was “not responsible” for Ms. Pucci’s condition. He provided little, if any, insight into the analysis that led to that conclusion.
[70] In his testimony, particularly his cross-examination, Dr. Ozersky elaborated on what he meant when he opined in his report that the accident was “not responsible” for Ms. Pucci’s condition. I have reviewed Dr. Ozersky’s evidence relating to causation earlier in these reasons (see paras. 11-13). As summarized, he offered two reasons for his opinion that the accident was “not responsible” for Ms. Pucci’s condition. After acknowledging that the accident triggered the condition, he went on to assert that the accident, while a trigger, was not a cause because the accident, on its own, would not have caused the conversion disorder. Second, Dr. Ozersky testified that the accident was “not responsible” for Ms. Pucci’s condition because, given her tenuous psychiatric state, had the accident not triggered her condition, some other event, even a minor one, would have triggered the condition.
[71] It appears to me that the two explanations offered by Dr. Ozersky for his conclusion that the accident was not “responsible” for the condition are not medical opinions but are, instead, legal opinions about the meaning of causation under s. 3(1) of the SABS-2010. Dr. Ozersky was, of course, not qualified to advance legal opinions. Additionally, his evidence suggests an understanding of causation that is at odds with the meaning given to causation under s. 3(1) in a series of decisions from this court: Greenhalgh v. ING Halifax Insurance Company (2014), 2004 CanLII 21045 (ON CA), 243 D.L.R. (4th) 635, at paras. 10-12, 36; Martin v. 2064324 Ontario Inc. (Freeze Night Club), 2013 ONCA 19, 113 O.R. (3d) 561 at para. 37; Chisholm v. Liberty Mutual (2002), 2002 CanLII 45020 (ON CA), 217 D.L.R. (4th) 145, at paras. 24-31. Nothing in those cases supports the proposition that the proverbial “thin skulled” driver, who has an accident that precipitates or triggers consequences that are particularly dire because of the driver’s prior medical vulnerability, is not covered under her motor vehicle insurance policy. [Emphasis added.]
August 2020:
Further support in relation to the treacherous "causation" issue as explained in our October 23, 2018 submission below: the Divisional Court (Sabadash v. State Farm et. al., 2019 ONSC 1121 (CanLII) found that the Arbitrator erred on applying the correct causation test, and that on appeal, the Director's Delegate correctly set aside the Arbitrator's decision. However, the Court found that the Delegate himself also erred on causation. The Court ordered a new hearing having found both levels below erred on causation. Question: how can we then expect medical experts to understand and apply the causation legal test? It is a question of mixed law and fact, and we ought not allow medical experts to do something where courts after courts, adjudicators after adjudicators - who are trained in the law - have themselves erred. Has anyone verified or challenged medical witnesses on their understanding of the law, the way the Divisional Court examined the decisions below in Sabadash? No, it is unheard of, nor, as we submit, should it be.
May 6, 2020:
The Ontario Court of Appeal today cautioned against confounding causation in fact and legal causation (causation in law) in Stirrett v. Cheema, 2020 ONCA 288. This appeared to have caused significant confusion in the profession. The distinction is quite relevant in the review to exclude expert opinion evidence on "causation". It appears opinion on causation in fact (as it is solely a question of fact) may be permitted, but not where a legal test is required to be applied (hence a question of mixed law and fact). The distinction is explained in Stirrett as follows:
[67] Before turning to an analysis of the trial judge’s reasons, it is first necessary to review the law on causation in the fiduciary context.
(1) Compensation for breach of fiduciary duty[68] Compensation for breach of fiduciary duty is typically determined according to restitutionary principles, where the plaintiff is entitled to be put in as good a position as he or she would have been in had the breach not occurred: Hodgkinson, at p. 440, per La Forest J. In M. (K.) v. M. (H.), [1992] 3 S.C.R. 6, La Forest J., writing for the majority, pointed out that in equity there is no capacity to award damages and that the distinction between damages and compensation is often slight, with the courts tending to merge the principles of law and equity when necessary to achieve a just remedy: at pp. 80-81. Over time, courts have used the term “damages” to denote monetary compensation for breach of fiduciary duty. Remedies in cases of breach of fiduciary duty (such as disgorgement of profits and exemplary compensation) can also have a prophylactic or deterrent purpose: Strother v. 3464920 Canada Inc., 2007 SCC 24, [2007] 2 S.C.R. 177, at paras. 74-77. Irrespective of the purpose, there must be a causal link between the breach of fiduciary duty and the compensation sought.
[69] As we will explain, when considering equitable compensation, or damages, the fiduciary breach must have been the cause in fact – the effective cause – of the loss in respect of which compensation is sought. There is of course a difference between the right to a remedy, and the assessment of damages. Causation in fact is relevant to the first issue. Legal causation, which incorporates limiting factors such as remoteness, proximity, foreseeability, and intervening act, is part of the second issue.
[70] We acknowledge that a source of confusion over the role of causation is in the use of the word “causation” in some of the cases both to describe causation in fact and as part of the test for applying common law limiting factors to limit the extent of a damages claim. These two uses should not be confounded.
[71] In the tort context, Philip H. Osborne cautions that causation in fact, which focuses on the factual issue of the sufficiency of the connection between the defendant’s wrongful act and the plaintiff’s loss, should not be confused with the “control device” of remoteness of damages, sometimes known as proximate cause, which may excuse a defendant from liability for loss caused to the plaintiff on the ground of fairness: Philip. H. Osborne, The Law of Torts, 5th ed. (Toronto: Irwin Law, 2015), at p. 54.
[72] Similarly, Sir Andrew Tipping, in “Causation at Law and in Equity: Do We Have Fusion?” (2000) 7:3 Canterbury L. Rev. 433, at p. 433, emphasizes the conceptual difference between the need to demonstrate a causal relationship that is “separate from and precedes the further controls provided by the concepts of foreseeability and remoteness”.
[73] Writing on fiduciary law, Leonard I. Rotman distinguishes between legal and factual causation: Leonard I. Rotman, Fiduciary Law, (Toronto: Thomson Reuters Canada Limited, 2005). At p. 634, he writes:
Both the common law and Equity require that there be some connection between the harm or loss caused and the actions of the person who is alleged to be liable for it.
…
Each starts with the idea of “but for”, “cause-in-fact”, or “sine qua non” causation. This generally satisfies Equity, but the common law requires more; it demands a finding of materiality or substantial cause to link the impugned activity with the harm to the plaintiff. Further, the common law imports ideas of foreseeability (or reasonable contemplation) and remoteness into its assessment of causality. Mitigation of losses is another relevant consideration under the common law’s assessment of damages for harm or loss, as is contributory negligence. These other considerations do not readily enter into Equity’s assessment of fiduciary accountability. [Footnotes omitted.]
[74] As this passage suggests, and as we will discuss below with reference to the case law, cause in fact is required in the fiduciary context. This case turns on the cause in fact requirement: did the respondent prove that the appellant’s breach of fiduciary duty caused the loss in respect of which compensation is sought? That loss is Mr. Stirrett’s death from the February 2005 angiogram. Because damages were agreed, it is unnecessary to go further and consider the extent of recoverable losses or whether a different measure should apply where the claim is for breach of fiduciary duty rather than negligence.
[75] We turn now to the case law on causation.
(2) Factual causation[76] While the appropriate approach to the assessment – that is, the measure and extent – of damages for breach of fiduciary duty was the subject of debate and discussion in the Supreme Court during the 1990s, namely in Canson Enterprises Ltd. v. Boughton & Co., [1991] 3 S.C.R. 534, and Hodgkinson, the Supreme Court was unanimous that whether dealing with a common law cause of action, or a claim sounding in equity, the plaintiff must establish that the defendant’s wrong was the cause in fact of some injury or loss.
[77] Canson involved a claim against a solicitor who handled a real estate transaction and who failed to disclose to his clients, the purchasers, a secret profit made by a third party. It was claimed that the solicitor was not only liable for the secret profit but also for the losses flowing from the negligence of engineers and pile-drivers who performed work on the purchased property.
[78] All eight justices who heard the case agreed that the defendant solicitor should be liable for the secret profit but not for the construction losses that were caused by the engineers. And, while the justices expressed differing opinions on whether and when the common law limiting factors would apply to compensation for breach of fiduciary duty, importantly, they agreed that, in order to award compensation for breach of a fiduciary duty, there must be a loss or injury that “flows from” or “results from” the breach.
[79] La Forest J., writing for the majority, stated, at pp. 578-79, that “[i]n the case of a mere breach of duty [by contrast to a breach of trust], the concern of equity is to ascertain the loss resulting from the breach of the particular duty”, and that it was imperative “to ascertain the loss resulting from the breach of the relevant equitable duty” (emphasis added).
[80] While generally agreeing with La Forest J., Stevenson J. wrote brief separate reasons in which he noted that the “losses [were] too remote, not in the sense of failing the ‘but for’ test, but in being so unrelated and independent that they should not, in fairness, be attributed to the defendant’s breach of duty”: at p. 590 (emphasis added).
[81] McLachlin J., writing for herself, Lamer C.J., and L’Heureux-Dubé J., agreed that the court was engaged in determining the loss resulting from the breach of the relevant equitable duty: at p. 551. She distinguished causation in fact from legal causation, stating, at p. 552, that “[t]he requirement that the loss must result from the breach of the relevant equitable duty does not negate the fact that ‘causality’ in the legal sense as limited by foreseeability at the time of the breach does not apply in equity” (emphasis added). Similarly, she stated that “while the loss must flow from the breach of fiduciary duty, it need not be reasonably foreseeable at the time of the breach”: at p. 552 (emphasis added).
[82] The Supreme Court next addressed compensation for breach of fiduciary duty in Hodgkinson, a case involving alleged breaches of fiduciary duty and contract in the performance of a contract for investment advice and other tax-related financial services.
[83] La Forest J., writing for the majority, found that Mr. Simms, an investment advisor, owed, and had breached, a fiduciary duty to Mr. Hodgkinson. He found that the damages owed for breach of fiduciary duty were the same as for breach of contract, taking into account the impact of market fluctuations that occurred after the breach.
[84] La Forest J. referred to the task of determining the damages “flowing from” the breach of fiduciary duty. The investment advisor induced Mr. Hodgkinson to make investments that he would not have otherwise made by deliberately concealing his own financial interest, thus “initiat[ing] the chain of events leading to the investor’s loss”: at p. 443.
[85] In summary, in Canson and Hodgkinson there was a causal link between the breach of fiduciary duty of the defendant and the harm to the plaintiff. The plaintiffs in Canson would not have entered into the transaction if the defendant solicitor had disclosed the secret profit. And, in Hodgkinson, the plaintiff would not have made the investments if he had known of the true relationship between the defendant and the developers. The point of contention in these cases was not whether a loss was caused by the breach, but the extent to which compensation for consequential losses could be recovered.
[86] The need for cause in fact to be established before compensation or damages are awarded for breach of fiduciary duty has also been consistently recognized by this court.
[87] For example, in Martin v. Goldfarb (1997), 31 B.L.R. (2d) 265 (Ont. Gen. Div.), the plaintiff claimed damages as a result of losses suffered in commercial dealings with a disbarred lawyer who had been convicted of fraud. Following a first trial awarding $5.95 million in damages to the plaintiff, a successful appeal by the defendant, and a new trial which resulted in the dismissal of his claim, the plaintiff appealed. The issue on the appeal of the new trial was whether the trial judge erred in requiring that the plaintiff’s personal losses be direct: see Martin v. Goldfarb (2003), 68 O.R. (3d) 70 (C.A.). This court stated, at para. 8, that “[d]amages cannot be awarded absent evidence of a causal connection”. This court held that the trial judge was justified in dismissing the claim because the plaintiff had not established a causal connection in fact between the losses he sustained in a bankruptcy and the breach of fiduciary duty.
[88] Further, in Waxman, this court accepted that “[t]he basic rule of equitable compensation is that the injured party will be reimbursed for all losses flowing directly from the breach”: at para. 651 (emphasis added).
[89] Also, in Standard Trust Company v. Metropolitan Trust Company of Canada, 2007 ONCA 897, 232 O.A.C. 74, MacFarland J.A. confirmed, in a breach of fiduciary duty case, that the trial judge was required “on a common sense and reasonable consideration of the evidence, [to] conclude what the losses were that flowed from the breach”: at para. 49 (emphasis added).
[90] To put it succinctly, a plaintiff seeking compensation for breach of fiduciary duty must establish that the losses flowed from the breach.
[91] We add this. While legal causation is not at issue in this appeal, we note that the Supreme Court and other appellate courts have accepted that common law limiting principles may apply to limit equitable compensation in order to treat similar wrongs similarly, but only where: (1) it is necessary to achieve a just and fair result; and (2) doing so does not raise any policy concerns: Canson, at pp. 581, 586-87, per La Forest J.; Hodgkinson, at p. 443, per La Forest J.; Waxman, at para. 662; and Dhillon v. Jaffer, 2016 BCCA 119, 86 B.C.L.R. (5th) 239, at paras. 26-28.
[92] For example, in M. (K.), La Forest J. declined to award any additional compensation for a parent’s breach of fiduciary duty after concluding that the underlying policy objectives for compensation were the same as those animating the jury’s award of damages for sexual assault and battery in a case of incest: at pp. 81-82.
[93] We now turn to the trial judge’s decision in this case.
...
[106] The issue is whether there is a causal link between the breach of fiduciary duty and Mr. Stirrett’s decision to undergo the February 2005 angiogram. The fact that Mr. Stirrett would have undergone the angiogram despite the appellant’s breach of fiduciary duty breaks the chain of factual causation in the fiduciary duty claim, just as it did in the negligence claim. The result would have been the same.
[107] This is the case whether or not causation in a breach of fiduciary duty case is described as “but for” causation. That said, causation in the context of a breach of fiduciary duty is properly characterized as “but for” causation. “But for” causation is not simply a common law concept. It means that the defendant’s breach of duty was necessary to bring about the plaintiff’s loss. The defendant’s wrong need not be the sole cause of the loss, but it must be part of the cause. “But for” causation raises the counterfactual question: what would likely have happened if the defendant had discharged his or her duty? Properly understood, “but for” causation simply means causation in fact.
//
October 23, 2018:
Regarding Project (A): Submitted suggestion to the Ontario Civil Rules Committee to consider amending the Rules to ban certain expert evidence on issues of mixed law and fact. The submission included the following:
"In September 2008, Commissioner Stephen Goudge delivered his final report of theInquiry into Pediatric Forensic Pathology in Ontario, warning against “inappropriately unscientific” and “speculative evidence” among other things. The increased vigilance against flawed expert evidence since the inquiry however did not prevent another regrettable systemic error that was Motherisk which involved “inadequate and unreliable” evidence in child protection and criminal proceedings. In January 2018, Commissioner Judith Beaman delivered her final report of theMotherisk Commission which acknowledged the deep harm that the “unreliable” hair testing by the Motherisk Drug Testing Laboratory has caused Ontario families. The reliance on hair testing went on for about 20 years.
We are now writing to raise concerns that the Ontario justice system, and possibly others elsewhere in Canada, has been admitting and indeed requiring a large amount of flawed expert opinion evidence, specifically on issues of mixed law and fact. [Supreme Court of Canada authorities as summarized in Hodges and Security National Insurance Co. (FSCO Appeal P12-00029, Director’s Delegate Blackman, February 22, 2013, at p. 17): Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748, held that “questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.” Following that decision, Housen v. Nikolaisen, 2002 SCC 33 (CanLII), held that “[q]uestions of mixed fact and law involve applying a legal standard to a set of facts … On the other hand, factual findings or inferences require making a conclusion of fact based on a set of facts.” ] Such opinion evidence amounts to a judgment that is manifestly or axiomatically beyond the scope of medical expert evidence because it exceeds factual inquiry, it requires expertise in law, and it lies exclusively within the province of the trier of fact.
In our respectful submission, while R. v. Mohan affirms generally that there is no longer a rule against opinion evidence on an “ultimate” issue, Mohan does not, and can not, stand for the proposition that opinion evidence on an issue of mixed law and fact is permitted or required. In other words, judges and juries do not need any help from any expert on how to apply the law to the facts.
We have not been able to identify any caselaw by the Supreme Court of Canada authorizing opinion evidence on issues of mixed law and fact. Despite this, we have observed a pervasive practice for more than 20 years of tendering such opinion evidence by the bar under a perceived expectation or requirement by the judiciary. Many questions on issues of mixed law and fact have been put to experts for opinion evidence including:
1. What opinions do you have regarding the levels of attendant care and housekeeping [Bruff-Murphy CA, para 17 as example of housekeeping and AC needs which necessitate application of the legal test of balance of probability] the plaintiff requires since the accident, and will require in the future, as a result of the accident if any? [for certain past and future care needs in a tort claim]
2. Has the plaintiff sustained a permanent serious impairment of an important physical, mental or psychological function?[1] [the “threshold” in auto accident tort cases]
3. Has the plaintiff suffered a complete inability to carry on a normal life? [a test for non-earner benefit under the SABS]
4. Has the plaintiff suffered a substantial inability to perform the essential tasks of her employment during the first 104 weeks after the accident, and complete inability to engage in any employment for which she is reasonably suited by education, training or experience during any period longer than the first 104 weeks after the accident? [a test for income replacement benefit under the SABS]
Embedded in question 1 are several issues of mixed law and fact: (a) application of facts to the legal issue of causation as signaled by “as a result of the accident”; (b) application of the legal standard of proof of balance of probabilities with regard to past care needs; (c) application of the legal standard of proof of “reasonable chance” or “real and substantial risk” of future care needs; and (d) the standard of care a plaintiff is entitled to in tort (“optimal” in tort, as opposed to “reasonably required” under SABS, for example) as embedded in the word “requires”.
Factual and legal causation may both be treacherous even for lawyers and courts as the judicial history of the three cases before the Supreme Court illustrate, where courts below had disagreed only to be further disagreed by the Supreme Court of Canada (Athey v. Leonati. Resurfice Corp. v. Hanke. Clements v. Clements.) Opinion evidence on legal causation, and on any issue of mixed law and fact falls beyond the scope of any expert evidence which is limited to only factual evidence.
As to questions 2, 3 and 4, suffice to say that there is a significant body of caselaw that has developed over many years in interpreting the threshold, non-earner benefit, and income replacement benefit as is to be expected on any question of law and its related application. Mastery of the law itself is a challenge even for practitioners apart from the fact that the law is continually subject to further growth and interpretation. Not only such opinion evidence is unauthorized, it is inappropriately unscientific, speculative, and unreliable expert evidence."
***
Regarding Project (C): Thoughts to consider: that there be established a Chief Justice of Ontario Advisory Committee on Scientific and Expert Evidence, consisting of volunteer experts in law and if available in medicine and science to create and maintain a Summary of Judicial Findings on Scientific and Expert Evidence, with the goal of preventing flawed opinions from continuing to be admitted.
For example, in Bruff-Murphy threshold decision before the CA ordered a new trial, the trial judge noted that the defence orthopedic surgeon gave "outdated" opinions contrary to current "medical and legal findings"! Not a rare event by any means in our experience where many experts wrote in their reports many outdated opinions, although all of these outdated opinions are actually noted in an actual case, as was noted in Bruff-Murphy. Among other things, he testified that as at 2015, chronic pain is not accepted in the medical profession except by those who have vested interest in the area. This appears contradictory to a finding by the Supreme Court of Canada decision in Martin v. Nova Scotia since 11 years earlier in 2004, para. 1, that chronic pain and its sufferers are real.
The Summary is to be continually revised as new judicial findings are noted, to enable judicial notice of prior scientific findings and opinions. Parties who wish to challenge those judicial findings should have their experts directly address opinions to the contrary. This way, the outdated orthopod opinion in Bruff-Murphy on chronic pain should be challenged in a voir-dire before being heard by a jury. Unfortunately, in that case, he appeared to have been able to testify before the jury, and who knows what the effects such evidence, even outdated, would have had on the jury. But fortunately, the verdict was set aside due to issues with psychiatric evidence from Dr. Bail.
Judges are to be entitled to take judicial notice of the Summary. This way we do not inefficiently reinvent the wheel with each and every medical or scientific expert as if we are working on blank canvas. The search for truth is improved by shedding outdated evidence before judges and especially juries.
September 2018:
Why a very serious case in Texas (below) took only six days to reach a $4.8 M verdict? It appears US decisions are much shorter whereas in Ontario, it would be typically 3 or 4 times longer (see for example 65 days in the case in entry of May 2018 below).
September 2, 2018 — A Texas jury has awarded Ford Explorer driver Jose Leos-Ortiz $4.8 million even though he tested twice the legal limit of intoxication after the crash.
Leos-Ortiz was driving on a Texas highway in June 2009 when his 1999 Ford Explorer rolled over and caused his left arm to be severed. Leos-Ortiz sued Ford by claiming he lost his arm because the window glass was tempered and not laminated.
Laminated glass has plastic layers to keep broken pieces intact, and the jury was told Ford used the cheaper tempered glass that caused the plaintiff to lose his arm.
Although he was driving at twice the legal limit of intoxication, his attorney told the jury it shouldn't matter because it was Ford's use of the cheaper glass that caused it to shatter into pieces.
Leos-Ortiz says as a welder he has been unable to work since 2009, so he sued Ford in 2011 for a trial that was reset 11 times due to a backlog of cases.
The 12 jurors listened to six days of testimony about the Ford Explorer crash and deliberated four hours before reaching their verdict.
The jury ruled there was a design defect in the 1999 Ford Explorer when it was originally sold by Ford, a defect that caused the plaintiff to lose his arm. And when asked to determine how much Ford was responsible for his injuries, the jury ruled Ford held 90 percent liability.
The jury held Leos-Ortiz 10 percent liable for the crash because the Explorer had more than 306,000 miles and he hadn't kept up maintenance on the SUV even though it still had its original suspension system.
The plaintiff was awarded $3.3 million for past damages and $1.5 million for future damages.
In its defense, Ford told the judge that Leos-Ortiz was responsible for the crash which cost him his arm because of the "negligence of plaintiff, in that he failed to exercise ordinary care, caution and prudence to avoid the incident and injuries at issue.”
The 1999 Ford Explorer defective window lawsuit was filed in the U.S. District Court for the Southern District of Texas, McAllen Division - Jose Leos-Ortiz vs. Ford Motor Company.
The plaintiff is represented by the Arentz Law Group PC.
May 2018:
Court of Appeal finds trial judge needed expert evidence to determine police negligence claim$1.6 million judgment against Thunder Bay Police overturned
September 16, 2016|Written By Alex Robinson [Canadian Lawyer Magazine]
The Ontario Court of Appeal has ruled [495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656(CanLII)] a trial judge should have considered expert evidence in determining standard of care in a negligence claim against the police.
The court overturned a $1.6-million judgment against the Thunder Bay Police Services Board and officer Frank Barclay that had been awarded to Ricardo Mercuri and his business, Central Auto Parts.
Kirk Boggs said rejection of expert evidence raised the standard of care from reasonable and probable grounds to a requirement to prove guilt.Mercuri brought a negligence claim against the police after he and his business were the subject of a 1997 investigation into stolen vehicles and auto parts. Mercuri was charged, but later found not guilty after a number of charges were withdrawn.
The trial judge in Mercuri’s civil lawsuit, Justice Helen Pierce, found the Thunder Bay police did not meet the standard of care in their investigation, but the Court of Appeal ruled Pierce had erred by rejecting expert evidence in her determination.
“This was a technical, complicated investigation, and the reasons the trial judge gave for considering the police conduct to be clearly egregious are flawed,” Justice Russell Juriansz said in the decision.
The trial judge, Justice Helen Pierce, found the police had not met the standard of care in their investigation for a number of reasons, including a determination that they had “failed to understand the purpose or the scope of the Criminal Code or the case law relevant to their investigation.”
Pierce rejected opinion evidence of an expert — a witness called by the plaintiff — who testified the police had reasonable and probable grounds to arrest Mercuri, saying the evidence was unreliable.
Kirk Boggs, a lawyer with Lerners LLP who represented the police on the appeal, says Pierce’s rejection of expert evidence raised the standard of care from reasonable and probable grounds to a requirement to prove guilt.
“When you’re evaluating a case like this, where there’s an allegation of negligent investigation, the court really requires expert evidence to help understand what the standard of care is in the circumstances of this case and whether the police officers met it,” he says.
The Court of Appeal agreed and found Pierce erred in finding the police had not met the standard of care without expert evidence.
“There are two exceptions to the general rule that expert evidence is required,” Juriansz said. “Neither exception applies here.”
The court said Pierce erred by considering whether the police could prove Mercuri knew the auto parts in question were stolen rather than whether they had reasonable and probable grounds.
“This is an important distinction,” Boggs says. “The role of the police is to investigate and assess whether there are reasonable and probable grounds for an arrest based on the information available at the time. They are not required to prove the accused’s guilt in order to be acting reasonable. That is the role of the Crown and judges.”
Joanna Nairn, of Pape Barristers Professional Corporation, who was one of the lawyers representing Mercuri, says that up until this point, it has been up to trial judges to determine whether they thought expert evidence was necessary to establish standard of care.
“In this case, we don’t feel that kind of deference was given,” she says.
“I think it’s difficult going forward for trial counsel and trial judges to know how much leeway trial judges have to make those determinations and how vulnerable they will be on appeal,” she says.
Sean Dewart, of Dewart Gleason LLP, says the case is very disappointing for “anyone who feels that police accountability should be enhanced, as opposed to being reduced further.”
“The obiter concerning the need for experts decreases access to justice without adding any value to the process,” says Dewart, who was not involved in the case, but has been lead counsel in significant cases against police services.
“If the police need expert evidence to establish that they had reasonable grounds for laying charges, they did not have reasonable grounds, in at least 99 per cent of the charges that they bring to court.”
While the court set aside the $1.6 million judgment, it upheld an award of $70,000 for the loss of property improperly stored by the police.
May 2018:
"Expert witnesses need not be independent, Supreme Court rules"April 30, 2015|Written By David Dias [Canadian Lawyer Magazine http://www.canadianlawyermag.com/legalfeeds/expert-witnesses-need-not-be-independent-supreme-court-rules-6314/]
"Expert witnesses who are not independent can nonetheless provide independent testimony — so ruled the Supreme Court of Canada today in White Burgess Langille Inman v. Abbott and Haliburton, a finely crafted decision that clarifies the test for admissibility of expert testimony.
Admissibility is not about a conflict of interest — but rather, whether the conflict precludes the possibility of independent testimony, ruled the SCC.Abbott and Haliburton was one of 38 respondents, all hardware stores in Nova Scotia that had joined forced to create a buyer’s group with greater negotiating power. The appellant, WBLI, had been the group’s accounting firm.
Unsatisfied with WBLI’s work, the hardware group moved their auditing to Grant Thornton’s office in Kentville, N.S. The group then launched an action against WBLI for professional negligence, wherein they relied upon expert testimony from Susan MacMillan, an auditor in Grant Thornton’s Halifax office.
WBLI objected, arguing that MacMillan’s testimony could not be independent given her relationship to the firm, which now worked the hardware group. WBLI brought a motion for summary dismissal.
The motions judge agreed with WBLI, but was overturned on appeal. Today’s decision, written by Justice Thomas Cromwell on behalf of a unanimous court, upholds the appeal court ruling.
Cromwell begins by underscoring the importance of independent expert testimony: “The question on this appeal is whether one of these basic standards for admissibility should relate to the proposed expert’s independence and impartiality. In my view, it should.”
That being said, Cromwell goes on to explain that the basic threshold for admissibility does not hinge on whether the expert is in a conflict of interest — but rather, whether the conflict precludes the possibility of independent testimony.
“When looking at an expert’s interest or relationship with a party, the question is not whether a reasonable observer would think that the expert is not independent,” the decision states. “The question is whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance.”
A trial judge may later conclude that the expert testimony is so conflicted that it must be expunged, but it’s not a threshold criterion, and it’s not up to a motions judge to make that call.
As the decision states, “A motions judge . . . should generally not engage in the second step cost-benefit analysis. That cost-benefit analysis, in anything other than the most obvious cases of inadmissibility, inevitably involves assigning weight — or at least potential weight — to the evidence.”
Brian Murphy, who represented the hardware group before the courts, calls the decision “the definitive ruling on independence of expert evidence for admissibility in trial cases in Canada.”
“Whether you’re biased or independent or fraudulent or unqualified or a junk expert witness, whatever — the issue is whether that should be dealt with at the gatekeeper stage on admissibility, or whether it should be let in and weighed by a judge.”
Today’s decision, Murphy says, reiterates the test for admissibility laid out in 1994 in R. v. Mohan, which establishes a two-step process. The first, to be decided by a motions judge, determines whether the testimony has: (1) relevance, (2) necessity, (3) absence of an exclusionary rule, and (4) a properly qualified witness.
The second step requires the trial judge to conduct a cost-benefit analysis in order to determine whether the testimony is beneficial to the trial process overall.
The question of independence, however, was never fully answered in Mohan, says Murphy.
“I’ve gone to a number of legal seminars on expert evidence and listened to the audience. And a number of them would get up and say, ‘Can you believe that the Nova Scotia Court of Appeal is saying that you don’t have to be independent? And can you believe that that the Supreme Court of Canada is going to have to answer this question?’”
Believe it or not, the highest court in the land has indeed pronounced on the issue: independent testimony is not the exclusive domain of independent witnesses."
March 2018:
Another example where a victim does not have to call expert evidence to challenge a defendant's expert evidence, at the Ontario Court of Appeal: Tondat v. Hudson's Bay Company, 2018 ONCA 302 (March 27).
[8] As the principal safety measure the appellants relied on was the installation of what their expert said was safe tiling, the essence of the appellants’ complaint in this appeal is that the trial judge erred in the assessment of the expert evidence.
[9] First, the appellants accept that it was open to the trial judge to reject the expert evidence. As such, there is no merit to their argument that the respondent was obliged to call her own expert witness to prove the floor was inherently slippery or to contradict the evidence about the slipperiness of the flooring when wet or dry.
February 2018:
The Motherisk Commission: Why it mattersWednesday, January 31, 2018 @ 8:45 AM | By Katharina Janczaruk
The Motherisk Commission’s final report is to be delivered by Feb. 28, 2018. What might we expect?
The Motherisk Commission was established by order-in-council dated Jan. 13, 2016, with a two-year mandate to establish and lead a “Review and Resource Centre” to provide support and assistance to persons affected by Motherisk test results.
The commission was formed following the release on Dec. 15, 2015, of the Motherisk Hair Analysis Independent Review (Motherisk Review) of hair strand testing for drugs and alcohol between 2005 and 2015...
January 2018:
A Supreme Court of Canada 6-1 decision, BC (WSIB) v. Fraser Health Authority, 2016 SCC 25, consistent with Saadati below, that a decision maker may draw inferences from non-expert evidence, including merely circumstantial evidence to address the issue of causation (of breast cancer of victorious lab technicians in this case). From the head notes of the SCC decision: "The presence or absence of opinion evidence from an expert positing or refuting a causal link is not determinative of causation. Causation can be inferred — even in the face of inconclusive or contrary expert evidence — from other evidence, including merely circumstantial evidence. Subject to the applicable standard of review, the task of weighing evidence rests with the trier of fact. In the instant case, the Tribunal’s original decision cannot be said to have been patently unreasonable. While the record on which that decision was based did not include confirmatory expert evidence, the Tribunal nonetheless relied upon other evidence which, viewed reasonably, was capable of supporting its finding of a causal link between the workers’ breast cancers and workplace conditions."
An important paper on expert evidence as background:
An informative consideration of expert evidence is written in May 2015 by Justice Lauwers of the Ontario Court of Appeal. An important summary, to access the paper only for research purposes, click here.
July 2017:
From the Marshall Report 2017 on auto insurance:
"At WSIB, typical costs for a multi-discipline examination and treatment plan is much less expensive than the cost of medical examinations in the Ontario auto insurance system in two ways. It costs less than the $2,000 per opinion that is currently paid by the Ontario auto insurance system and the injured party does not have to submit to multiple separate examinations. As a point of reference the total cost of medical examinations paid by the WSIB in a year is about $26 million for a system handling 170,000 injury claims a year, compared with the approximately $350 million currently paid in the Ontario auto system for handling just 60,000 injury claims.24"
June 2017:
Saadati v. Moorhead, 2017 SCC 28: a new and critically important development just released by the SCC.
While the Supreme Court appears to get it right on the validity, or lack thereof, of evidence in psychiatric cases specifically, and injury cases generally, it was a missed opportunity (e.g. see para. 38) to consider at the same time the impact on access to justice (by costs, delay, and wrongful verdicts) by further curtailing or discrediting the practice of tendering expert evidence on "matters of credibility - questions of fact best entrusted to the good sense of triers of facts" to avoid "the abdication of judicial responsibility" (at para. 22).
[32] Resort to the DSM or ICD in the context of litigating claims for mental injury has been variously rationalized as fostering objectivity, certainty and predictability of outcomes; and as preventing “indeterminate liability” (Tame, at paras. 193-94; Healey, at para. 65; Queen of the North, at para. 68). These rationalizations, however, do not withstand scrutiny. In particular, the putative objectivity, certainty and predictability said to be furnished by the recognizable psychological illness requirement are in my view overstated. Psychiatric diagnoses —
like diagnoses of physical illness or injury — can sometimes be controversial even among treating practitioners (M. A. Jones, “Liability for Psychiatric Damage: Searching for a Path between Pragmatism and Principle”, in J. W. Neyers, E. Chamberlain and S. G. A. Pitel, eds., Emerging Issues in Tort Law (2007) 113, at p.131). ...
...
[38] Nor should any of this be taken as suggesting that expert evidence cannot assist in determining whether or not a mental injury has been shown. In assessing whether the claimant has succeeded, it will often be important to consider, for example, how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment and the nature and effect of any treatment (Mulheron, at p. 109). To the extent that claimants do not adduce relevant expert evidence to assist triers of fact in applying these and any other relevant considerations, they run a risk of being found to have fallen short. As Thomas J. observed in van Soest (at para. 103), “[c]ourts can be informed by the expert opinion of modern medical knowledge”, “without needing to address the question whether the mental suffering is a recognisable psychiatric illness or not”. To be clear, however: while relevant expert evidence will often be helpful in determining whether the claimant has proven a mental injury, it is not required as a matter of law. Where a psychiatric diagnosis is unavailable, it remains open to a trier of fact to find on other evidence adduced by the claimant that he or she has proven on a balance of
probabilities the occurrence of mental injury. And, of course, it also remains open to the defendant, in rebutting a claim, to call expert evidence establishing that the accident cannot have caused any mental injury, or at least any mental injury known to psychiatry. While, for the reasons I have given, the lack of a diagnosis cannot on its own be dispositive, it is something that the trier of fact can choose to weigh against evidence supporting the existence of a mental injury.
June 2017:
There is a pending Supreme Court of Canada decision (Saadati v. Moorhead, in reserve) involving the question of whether a trial judge may award psychological damages when there is no expert psychological evidence. If the answer is yes, and it should be, the decision should empower adjudicators and triers of fact to be more comfortable in disqualifying unnecessary medical evidence, helping to reduce wrongful civil verdicts induced by medical evidence. The IBC intervened to oppose. [Update: The answer is yes: 2017 SCC 28.]
May 2017:
The Motherisk Lab at Sick Kids appears to be another fiasco where expert evidence was not rigorously examined and challenged. Dozens of children were removed from their mothers due to potentially flawed hair-sample tests for addictions. Class action is underway. Vigilance is required, as ever.
https://www.thestar.com/news/gta/2017/04/30/years-before-motherisk-scandal-sickkids-stood-by-doctor-who-wrote-poison-pen-letters.html
April 2017: Dr. Charles Smith was exposed with his pervasive flawed evidence in child death cases. Eleven years later, his successor is criticized for incorrect evidence in another child death case: https://www.thestar.com/news/crime/2017/04/13/ontario-chief-pathologist-slammed-for-offering-incorrect-opinions-in-court.html
March 2017: http://news.nationalpost.com/news/hired-gun-in-a-lab-coat-how-medical-experts-help-car-insurers-fight-accident-claims This link summarizes some of the instances of serious concerns involving problematic expert evidence. A comment to the article, emphasis added:
"I had a lawsuit from 2010. Car accident. I had an appointment with Dr.S----. My lawyer made sure i had a witness in every appointment. I would also keep a binder with paper on me and when i finished in an appointment i would write down everything that happened. In detail. When we received Dr.S----'s report, the lies were exceptional. I remember crying after reading it thinking how am i supposed to beat lying doctors in court. Long story, short. I settled out of court. These doctors can ruin peoples lives. I dont know how they sleep at night"
Like · Reply · 41 · Jan 5, 2017 3:54pm
December, 2016: Platnick v. Bent, et. al, 2016 ONSC 7340, December 1, 2016 by S.F. Dunphy, J.: The Judge threw out a claim for libel by Dr. Platnick where it was reported that he, writing reports under the name of Sibley SLR an assessment company, was involved in altering conclusions or signing off on final reports without a neurologist first seeing and signing it to validate his opinion. It was only revealed in the latest stages possible: during a contested hearing.
October, 2016: Hoang v. Vincentini, ON CA Oct 5, 2016.
April 2016: Below is an article from Law Times, reproduced here for reference and further consideration only (as such, the views and reasons therein are not necessarily of the Centre).
[Monday, 08 February 2016 08:59 | Written By Alan Shanoff:]
The recently reported decision of Bruff-Murphy v. Gunawardena, 2016 raises important issues concerning the use of civil jury trials and the role of partisan expert witnesses.
The decision arises out of a typical personal injury action. The defendant rear-ended the plaintiff’s vehicle. The plaintiff complained of various injuries that caused “continuous severe pain.”
The action was held before a judge and jury.
Of course, the defence served the jury notice. Insurers and defence counsel know that juries raise uncertainty and the prospect of a jury trial drives down the quantum of many settlements. It is all part of the game-playing that takes place in personal injury litigation.
Following the judge’s charge to the jury, defence counsel brought a threshold motion. Under Ontario law, non-pecuniary damages are not recoverable in motor vehicle personal injury litigation unless the injured person has died or has sustained serious disfigurement or permanent serious impairment of an important physical, mental, or psychological function.
Ontario Superior Court Justice Paul Kane dismissed the motion, concluding the plaintiff’s impairments satisfied the threshold. That finding allowed the plaintiff to recover general damages for her substantial injuries. Yet the jury came back with a nominal award of $23,500 for general damages and dismissed all other claims.
How is it that a plaintiff can be found to have suffered permanent serious impairment of an important function and yet only receive a general damages award of $23,500? This plaintiff is married, in her thirties, and has three children. She has a long life expectancy.
The only reasonable explanation I can come up with after reading the judge’s reasons on the threshold motion revolves around the expert evidence introduced by the defence.
One of the defence’s two expert witnesses was an orthopedic surgeon who testified there was no medical finding to indicate physical impairment, there must be a medical reason to explain pain, pain is a perception, and it is not evidence-based medicine.
The trial judge rejected this evidence as not being of relevance. More importantly, he criticized the defence choice of a jury trial, stating, “Medical and legal thinking as reflected in jurisprudence, has moved beyond a belief that ‘unless you can see or feel an injury, there is no injury’. Such outdated hypothesis however may be one of the reasons for the current popularity by defendants as in this case to select trial by jury in the hope the jury might accept this outdated argument.”
The second defence expert witness was more problematic. This witness, a psychiatrist, testified that the plaintiff was faking and shouldn’t be believed. To put this evidence into perspective, this expert told the court he had conducted about 5,500 independent medical exams since 1989 at approximately $5,500 per assessment.
All but “a few dozen” were conducted for defendants.
He currently conducts an average of seven to 14 assessments for insurers or defendants per month. These assessments form a large part of the psychiatrist’s practice.These facts alone should have served as a red flag. In three previously reported cases, findings were made that this witness had “become an advocate for the party calling him,” had taken a “partisan approach” or “presented as a notably partisan witness.”
Yet the court felt compelled to accept the witness as an expert and did not allow the witness to be cross-examined on these prior judicial findings. The judge rejected this expert’s evidence as being not credible for purposes of the threshold motion. In doing so, he stated, the witness “failed to honour his obligation and written undertaking to be fair, objective and non-partisan” and “[T]he vast majority of his report and testimony in chief is not of a psychiatric nature but was presented under the guise of expert medical testimony.”
It seems the defence witnesses had their desired effect on the jury. How else to explain the nominal jury award in a case where the trial judge concluded,
“The evidence of the plaintiff as to her injuries, level of symptoms and limitations are corroborated by her health care providers including some of their testing for veracity. Such evidence is further corroborated by her husband and her friends. In such ways, the plaintiff’s credibility is strongly supported.”
Yes, this is but a single case of injustice. But we are left to speculate on how many deserving plaintiffs have entered into low settlements or suffered low awards due to the evidence of experts of the ilk trotted out by the defence in this case. Where do we go from here?
I have two suggestions for consideration. First, let’s reconsider the use of civil juries for personal injury litigation. Quebec and the Federal Court of Canada have abolished civil jury trials. England has long since barred the use of juries for personal injury cases. Some states and territories in Australia no longer allow civil jury trials, while others allow civil jury trials but not for motor vehicle litigation. Second, we must do a better job of eliminating partisan experts from participating at any stage of personal injury cases. Efforts to do away with hired gun experts have failed.
The trial judge in the case discussed above declared he would not qualify witnesses as experts in the future if they took a similar approach to that taken by the defence psychiatrist. That’s of small comfort to the plaintiff, Ms. Bruff-McArthur.
Update November 2015: Below is an article first published in the Lawyers Weekly on November 6, 2015, with the goal of reeling in the billion-dollar runaway expert train. [A recent SCC decision Inman v. Abbott et al, 2015 SCC 23 (April 30, 2015) applying Mohan (on admissibility component) and further exploring expert evidence, should be considered as Inman appears to refine (by largely adopting ONCA Abbey) a second component, that of cost-benefit residual discretion after admissibility has been established, to further tighten control on opinion evidence.]
"With expert witness, less may be more"
Much of current medical expert evidence in personal injury cases is superficial, speculative and unnecessary. This article briefly highlights some reasons for the growth of improper expert evidence along with two promising grounds to reel in the runaway expert train.
We are mindful of the Charles Smith saga that resulted in a grave miscarriage of criminal justice (Dr. Charles Smith testified for the Crown in more than a dozen cases and helped to wrongfully convict innocent people of killing the young children under their care). In his final report (Inquiry into Pediatric Forensic Pathology in Ontario), commissioner Stephen Goudge stated that Smith gave “inappropriately unscientific” and “speculative evidence,” among other things. He reminds us that experts “are not given free rein to discuss other matters on which they happen to have an opinion.”
To illustrate the superficial and speculative nature, let us examine some major disputes where expert evidence is invariably tendered. The focus of the inquiry here is whether or not there is a required expertise and a required expert reasoning process to underpin the expert opinions. For explanations set out below, I conclude that what we find is a plain black box with no expertise inside. Here are some typical disputes:
1. Does the plaintiff “reasonably require” 24/7 supervisory care?
2. Is the plaintiff suffering a “complete inability to carry on a normal life?”
3. Is the plaintiff suffering a “complete inability to engage in any employment for which she is reasonably suited by education, training or experience?”
4. Has the plaintiff sustained “permanent serious impairment of an important physical, mental or psychological function?”
The dispute on 24/7 supervision is typically the largest head of damages in a severe brain injury case. In a typical case, the victim makes a remarkable recovery but still suffers serious cognitive impairments at the time of trial. He is not wheelchair-dependent and can walk, talk, drive, and engage in intimate relationships. Does he reasonably need round-the-clock supervision?
It must be noted that the dispute is not about the causation of brain injuries and related cognitive impairments. Such causation is rarely in dispute. The real dispute is as framed, and the key underlying issue is whether or not the victim suffers a sufficient degree of disability to warrant the finding that 24-hour supervision is “reasonably required.”
The question directed at the experts is one of an unusual nature. It mixes facts and law. But what makes it even more unusual is that the key facts are not static but dynamic — an always moving target, largely dependent on an assessment of credibility of the victim under the total circumstances of the case.
The expert is, in essence, asked to assess three things concurrently to render an opinion: credibility, facts, and applicable law. This formula is problematic as it injects much subjectivity and confusion into the process. First, an assessment of credibility is part of the daily functions and hence the ordinary knowledge of the adjudicator. This is not a task where expert assistance is necessary. Furthermore, even if permitted, an assessment of credibility by an expert is grossly incomplete because he or she does not have access to the totality of the evidence in the case, including cross examinations at trial, before rendering a report. Second, an assessment of complex applicable legal standards with convoluted interpretations is similarly a task for adjudicators, not for medical witnesses.
Last, but not least, is the complete lack of any expert reasoning process engaged by the experts. Let me explain. A neuropsychologist, for example, testifies first as to the nature of the trauma, the location of the injuries to the brain, and the resultant types of impairments such as memory and executive functioning. Eventually, the expert leaps to support or to deny 24/7 supervision. My question is just how, precisely, does the expert leap to this opinion? If it was a negative opinion, is it because there were only two incidents over the five years preceding trial where the victim forgot to turn off the stove? What if there were five or seven incidents of risky behaviour? Would 10 incidents be sufficient? Maybe still not, but what about 50? Where is the expert reasoning process in all of this to underpin the expert opinion? In my view, the opinion is just an ordinary feeling, belief or opinion the experthappens to have. There is no expertise behind this leap but only a black box with nothing beyond the ordinary knowledge of an adjudicator.
The foregoing analysis can be similarly applied to the remaining issues listed above, and many more in injury law. Briefly, as to the verbal threshold issue 4 above, do we need a medical witness to enlighten us as to what constitutes “serious,” seriously?
In R. v. Mohan, the Supreme Court of Canada sets out the substantive requirements for admissibility of opinion evidence, namely relevance, necessity, no exclusionary rule, and properly qualified expert. In the foregoing analysis, “necessity” and “properly qualified expert” appear to be the two promising grounds to reel in the runaway billion-dollar expert train, and in the process save an untold number expert-induced miscarriages of injury justice."
Update September 2015:
In Snelgrove v. Jensen, January 27, 2015 ONSC 585 McNamara J. confirmed: [9] "It is common ground that experts are not to usurp the function of the trier of fact." But it appears however that McNamara J. did not appreciate the new culture or sea change that business can not be as usual, given the system is now severely broken as confirmed by the SCC in Hryniak, and also the caution by Lauwers J.A. above, when McNamara stated:
[7] Having said that, however, cases where the evidence of a properly qualified expert is entirely excluded are rare. That is so because, of course, there is a general requirement that parties to an action be afforded the opportunity to lead a complete claim or defence, and they are usually afforded that opportunity so long as it complies with the rules of evidence. That is the position advanced by counsel for the defendant in this case.
We believe that the costs and delay inflicted on the legal system beyond the points of broken must temper the rights of parties to lead a disproportionate claim or defence. Expert evidence ought to be more rigorously examined and excluded at the gate.
Update April 2, 2015:
CASE STUDY: The case of Elbakhiet v. Palmer appears to be a rare opportunity to scrutinize some important aspects (including expert evidence's interaction with issue of credibility) in the civil justice system as it relates to motor vehicle claims. Rare is the opportunity to review some of the reasons a jury gives for its verdict, but that was done here, as the "Verdict Sheet" was attached to the costs decision: http://www.canlii.org/en/on/onsc/doc/2012/2012onsc3666/2012onsc3666.html?searchUrlHash=AAAAAQATZWxiYWtoaWV0IHYuIHBhbG1lcgAAAAAB&resultIndex=3. This gives us rare opportunity for insight and study of how jury makes a decision in Ontario, particularly in case where post-concussion syndrome is alleged.
The trial judge's decision, a study in judicial diligence, set out numerous restrictions on a proposed's expert evidence, and not permitting the defence doctor to testify about "credibility" of the injured plaintiff. However, the jury took into consideration of the repeated references about poor credibility in the records! The trial judge decision is here: http://www.canlii.org/en/on/onsc/doc/2012/2012onsc2529/2012onsc2529.html?searchUrlHash=AAAAAQATZWxiYWtoaWV0IHYuIHBhbG1lcgAAAAAB&resultIndex=1
The third decision, this time by the Court of Appeal in July 2014, reducing costs awarded to plaintiffs from nearly $600,000 to $100,000 to give in part "more proportionality" to the trial verdict which was practically identical to the defence offer of $145,000: http://www.canlii.org/en/on/onca/doc/2014/2014onca544/2014onca544.html?searchUrlHash=AAAAAQATZWxiYWtoaWV0IHYuIHBhbG1lcgAAAAAB&resultIndex=6
The trial decisions are to be further studied on the issue of explosion in expert evidence in civil cases. All three decisions are to be further studied as to what can be improved with regard to access to justice.
Update March 26, 2015:
The Ontario Court of Appeal released its much anticipated decision in Westerhof v. Gee (March 26, 2015) clarifying "participant experts" (i.e. treating experts), and non-participant or litigation experts i.e. those retained specifically for the proceeding who did not treat. An assessment of credibility of plaintiff by experts again played a central role, in the form of "malingering". Malingering is such a subjective assessment, so susceptible to hired-gun arbitrary affiliation with the referring source that ought not be admitted as part of "expert" opinion evidence. Such subjectivity in expert opinion evidence perpetuates the hired-gun expert problems for the years and decades still to come. This ought to be kept out by judge's gate keeping function.
Westerhof attempts to clarify who has to sign the expert form under rule 53. This has taken 5 years of confusion to clarify words under the rule, ought to have known how words are intrinsically malleable. It remains to be seen if expert costs are any better (but no reasons to hope, given no empirical experience to the contrary). But the principle of proportionality in the rules of evidence before the Superior Courts was not engaged by the Court of Appeal in its discussion. Nor the opportunity to reduce subjective litigation expert evidence (such as on "malingering" was seized.) Litigation expense was not reined in.
http://www.ontariocourts.ca/decisions/2015/2015ONCA0206.pdf
[138] First, the evidence of Ms. Gross and Ms. Murray concerning Mr. Westerhof’s condition in August 2006 could have undermined the evidence and credibility of the defence expert, Dr. Cividino.
[139] As I read his evidence, Dr. Cividino testified, in effect, that as of June 2006, Mr. Westerhof was malingering. Moreover, Dr. Cividino testified in-chief that Mr. Westerhof did not complain of hip pain at the time of his examination.8
[140] On the other hand, Ms. Gross and Ms. Murray observed pain behaviours and restricted hip movement. They described no observations suggesting malingering. In my view, their evidence had the potential to undermine Dr. Cividino’s credibility and neutrality concerning whether Mr. Westerhof was malingering and concerning whether Mr. Westerhof was experiencing hip problems in the summer of 2006 – factors that may well have been important to the jury’s (and the trial judge’s) acceptance of Dr. Cividino’s evidence. [emphasis added.]
Update February 24, 2015:
From: http://www.thecourt.ca/2015/01/15/the-court-of-appeal-for-ontario-applies-the-mohan-and-abbey-tests-in-meady:
The Court of Appeal for Ontario Applies the Mohan and Abbey Tests: Meady v Greyhound Canada January 15th, 2015. This case, in dismissing the appeal, applies the Mohan and Abbey tests and clarifies the principles relating to the necessity wing of the test. This decision by Chief Justice Strathy upholding the trial judge’s decision further emphasizes the deference accorded to trial judges in conducting these inquiries. Finally, this case highlights the embedded concerns of trial efficiency and judicial resources, endorsing a position that trial judges should appropriately use their gatekeeping functions to prevent unnecessary expert evidence.
In Meady v Greyhound Canada Transportation Corp, 2015 ONCA 6, the Ontario Court of Appeal upheld a trial judge’s decision to disallow evidence from two experts. The appeal arose from a Greyhound bus accident that occurred in Northern Ontario in December 2000. The appellants in this case are passengers who chose to sue the respondents: the bus driver, Greyhound, the police officers involved, the Crown employer, and the passenger responsible for causing the crash.
Facts and Judicial History
Shaun Davis was travelling from Alberta to Nova Scotia for the holidays. While stopped in Ontario, Davis told the bus driver Albert Dolph that he thought someone had searched bags and that people were going to hurt him. The police were called and Constable Parrish arrived. He determined that no one went though Davis’ bags and observed that Davis was exhibiting symptoms of anxiety and mild paranoia. Parrish spent further time with Davis and asked him if he wanted to see a doctor.
Davis later called the police again and Parrish along with Constable Singleton arrived back to the bus station. Davis again stated that he felt people were going to hurt him. Parrish informed the bus driver that Davis was exhibiting symptoms of paranoia but that he was not a safety risk. At one point in the bus ride Davis got out of his seat, expressing the same paranoid thoughts. While Dolph told Davis to go back to his seat, he did not do so and eventually jumped into the driver’s area, grabbed the steering wheel and caused the bus to roll into a ditch.
The trial began in 2010, and focused much on the standard of care the respondents owed the appellants. The trial judge refused to admit expert evidence from neither Steven Summerville, a police officer who has knowledge of use of force principles, nor from Arthur Atkinson, a transportation safety consultant who was familiar with accident investigation and bus standards. In short, while Davis was noted in default in the action, the trial judge dismissed the claims against all the other parties. In his view, the officers exercised the proper standard of care in relation to their interaction with Davis, the bus driver exercised reasonable care and skill in operating the bus and Greyhound did not improperly train Dolph. An appeal was sought in the Court of Appeal for Ontario.
Analysis
The Trial Judges’ Decision Attracts Deference
The admissibility of expert evidence is governed by the Supreme Court of Canada’s decision in R v Mohan, [1994] 2 SCR 9 and the Ontario Court of Appeal’s decision in R v Abbey, 2009 ONCA 624. The test for admissibility contains four parts:
(a) the evidence must be relevant;
(b) it must be necessary to assist the trier of fact;
(c) it must not be subject to an exclusionary rule; and
(d) the expert must be properly qualified.
The admissibility of both experts turns on the trial judge’s decision on the second requirement of the test. As written by Chief Justice Strathy, speaking for the Court in this case: “The application of the necessity criterion asks whether the trier is able to form a correct judgment about the issue without the assistance of persons with special knowledge.”
While the standard of care for professionals is a question of law, the specific requirements of the standard are questions of fact. While expert evidence is usually used by the trier of fact, the trial judge in this case used the exception for “non technical matters or those which an ordinary person may be expected to have knowledge” to refuse to hear the evidence.
All in all, Chief Justice Strathy concludes that the trial judge’s decision requires deference as indicated by the relevant principles. For instance, judges must be astute to disallow experts that are unnecessary as this is a waste of judicial resources (see Johnson v Milton (Town), 2008 ONCA 440) and there is “no exact way to draw the line” in these sorts of inquiries (see R v DSF (1999), 43 OR (3d) 609 (CA)).
Summerville’s Expert Evidence
In the appellant’s view, Summerville’s evidence pertaining to police crisis management techniques should not have been excluded. In their view, this would have allowed the trier of fact to conclude that the officers breached their standard of care as they were deficient in their investigation and should have used crisis intervention techniques to prevent Davis from riding the bus. Chief Justice Strathy rejects this argument, holding that the trial judge properly performed his gatekeeping function. He notes that the trial judge was able to make findings of fact relating to the interactions between officers and Davis. For example, the trial judge concluded that there were no grounds to detain Davis and that based on Davis’ demeanour, the officers acted reasonably.
Atkinson’s Expert Evidence
The appellants asserted that the trial judge should have included evidence that would have allowed him to conclude that the driver, Dolph, should have slowed down when Davis was out of his seat. Again, Chief Justice Strathy upheld the trial judge’s decision. Since the trial judge concluded that the speed at which Dolph was driving was reasonable, it was not necessary for him to admit expert evidence relating to this issue.
The Standard of Care
Finally, the appellants challenged the trial judge’s articulation of the standard of care. The trial judge found that the standard of care applicable to the bus driver was that of a “reasonable bus driver in the circumstances” and “whether the bus driver used all due, proper and reasonable care and skill in the circumstances” [Day v Toronto Transportation Commission, [1940] SCR 433]. In regards to the officers, the standard was that of “the reasonable officer in like circumstances” and the officer “must live up to the accepted standards of professional conduct to the extent that it is reasonable to do so in the circumstances” [Hill v Hamilton-Wentworth Regional Police Services Board, [2007] 3 SCR 129]. Chief Justice Strathy found no issues with the trial judge’s findings.
Update February 23, 2015:
An observation: an excerpt from a paper on how R. v. Mohan applies in professional discipline cases by Neil J. Perrier March 2011:
...
In 1994, the Supreme Court of Canada, in R. v. Mohan, set out the following general criteria for the admissibility of expert opinion evidence:
1. The evidence is relevant to some issue in the case;
2. the evidence is necessary to assist the trier of fact;
3. the evidence does not violate an exclusionary rule; and
4. the witness is a properly qualified expert.
...
In 2009, a Law Society Disciplinary Panel held that expert opinion evidence in the area of real estate law met the Mohan test of necessity where the panel “…determined that estate administration is a complex, highly technical and specialized area of law. The relevant practices in this specialized area of law went beyond the knowledge and expertise of the Panel. It followed that the proposed expert evidence was necessary because it would be of assistance to the Panel in providing relevant information and appreciating the technicalities of estate administration that were outside the Panel's knowledge and experience.”9
On the criteria of necessity, the Supreme Court held that the opinion must be “necessary in the sense that it provides information which is likely to be outside the experience or knowledge of the judge or jury.” The Court explained that the expert evidence must be necessary in order to allow the fact finder: 1) to appreciate the facts due to their technical nature, or; 2) to form a correct judgment on a matter if ordinary persons are unlikely to do so without the assistance of persons with special knowledge.10
If the trier of fact is able to reach a conclusion without the assistance of experts, the opinion evidence is superfluous and thus is unnecessary.11 [emphasis added.] [[Note: The Ontario Court of Appeal stated in Hoang v. Vinciniti, October 5, 2016: [62] First, there is no longer a general rule barring opinion evidence on the ultimate issue. Instead, a court should apply the criteria of necessity and the cost-benefit-analysis more strictly on evidence dealing with the ultimate issue: Alan W. Bryant, Sidney N. Lederman and Michelle K. Fuerst, Sopinka, Lederman & Bryant- The Law of Evidence in Canada, Fourth Edition (Toronto: LexisNexis, 2014), § 12.152. In the present case, both the appellants and Vicentini adduced expert evidence on the issue of the cause of the accident. The appellants led evidence from Hrycay as to whether Vicentini could have avoided the collision, the same issue they now contend the trial judge should not have allowed Green to address. The appellants’ position is inconsistent and, therefore, not tenable.]]
[9 LSUC v. Anderson, 2009 L.S.D.D. No. 3, at para. 38.
10 Sopinka, The Law of Evidence in Canada, 2nd Ed., © 1999 Lexis Nexis Canada Inc., at p. 620.
11 Ibid.]
It must be demonstrated that the expert possesses special or peculiar knowledge in the area beyond the triers of fact, acquired by academic study or by practical experience, to be able to assist the Court.12
Whether or not the Mohan criteria are as strictly applicable in the administrative context, it is important to bear in mind those criteria in ensuring that a Discipline Panel is not deprived of relevant expert evidence but also in ensuring that the Panel retains a “gate-keeping” function in ensuring that irrelevant expert evidence is not admitted. For example, in cases of an allegation that a professional member has failed to maintain the standard of practice of the profession, I would suggest that prosecuting counsel as a general rule seek to introduce expert evidence regarding what standard the member must maintain or run the risk of having failed to prove an element of the allegation. As another example, in cases of defending professionals before their regulatory body, I would suggest carefully scrutinizing the referring documentation and allegations against a member in considering the admissibility of expert opinion evidence with a view to determining precisely what facts are in issue in a hearing and thereby determining the relevance (if any) of the expert opinion. Justice Galligan, in Golomb v. College of Physicians and Surgeons of Ontario, states:
It follows from the requirement that the charge must be particularized to that extent that an accused must not be tried on a charge of which he has not been notified. It also follows that evidence ought to be confined to the charge against him. Evidence relating to other suggestions of misconduct should not be presented because it could have a very serious prejudicial effect upon the tribunal and it is evidence relating to conduct which he is not prepared to defend.13
In circumstances where the allegation of professional misconduct referred is that the member failed to apply applicable statutes, regulations and codes, should an opinion that the member failed to maintain the standard of practice of the profession be admissible? I suggest not. [...Perrier]
Update February 2015:
The Ontario Court of Appeal in Moore v. Getahun (January 29, 2015) provided these observations on expert evidence:
[33] Expert evidence is a significant and controversial feature of modern civil litigation. It constitutes an exception to the rule that witnesses may only testify as to facts, not opinions, and that it is the exclusive prerogative of the trier of fact to draw inferences from proven facts. The expert evidence exception operates where specialized knowledge is required to determine the implications of the bare facts and where the trier of fact is not competent to draw the necessary inferences unaided: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at p. 23; R. v. Abbey, 2009 ONCA 624 (CanLII), 246 C.C.C. (3d) 301, at para. 94.
[34] Expert evidence has become more significant with the explosion of scientific knowledge and technical innovation. Many cases have been described as a “battle of experts”. Medical negligence cases are a prime example. The trier of fact requires the assistance of expert witnesses to decide issues pertaining to the standard of care, causation and prognosis.
[35] The use of expert evidence poses difficult issues that have been the focus of consideration in civil justice reform. How do we control the added costs associated with the explosion of expert witnesses? How do we ensure that a party has a fair opportunity to challenge an adverse expert witness? How do we ensure that expert witnesses offer an unbiased scientific or technical opinion based upon their training and expertise, rather than act as “hired guns” who present unbalanced opinions unduly favouring the party that retains them?
In the Centre's view, the "explosion" of expert evidence is on "scientific knowledge and technical innovation", not on an issue such as disability which requires an assessment of credibility. The Court of Appeal did not endorse the notion that expert evidence may include expert opinions on credibility. Since credibility is a central issue in many soft-tissue injury cases, expert evidence on issues that require an assessment of credibility should not be permitted. This will save costs, improve access to injury justice for an overwhelming number of soft-tissue, chronic-pain injury victims.
Unfortunately, in Ontario, the regulation on the threshold issue actually requires "expert" evidence on disability, thereby appears to legalize and entrench the existence of experts on credibility. Improvements in the area of expert evidence in vast number of auto injury cases in Ontario will require legislative amendment, in addition to new jurisprudence.
Update June 2014:
To start, why standard jury charges by trial judges across Canada can not include the findings by the Supreme Court of Canada above in regard to chronic pain sufferers? Why must trial judges continue to allow defence medical experts waste trial time with their continuing opinions that without objective evidence of injury there is no disability, contradicting the Supreme Court of Canada findings?
Why would judges allow medical experts to give opinion evidence on the underlying issue of credibility of a victim, when (1) no one is an expert in credibility; and (2) credibility is or should be exclusively for the triers of fact? The Supreme Court decision in R. vs. Mohan (circa 1996) was recently followed by the Alberta Court of Appeal in R. vs. Jacobs (May 2014) to overturn a conviction by excluding expert evidence which went beyond his expertise. Countless experts in Ontario auto injury cases differ in opposing opinions primarily because they differ on the underlying credibility of the injured plaintiffs. Such expert evidence ought to be excluded, saving hundreds of millions in costs to all participants, reduce chances of flawed civil verdicts (Charles Smith saga, below), improving the access to justice.
***
One important observation by many observers is that in personal injury cases, many medical-legal experts do not fairly conduct medical assessments and their expert reports are tainted or deeply flawed. Some "rogue" experts continue to obfuscate injury justice by misleading arbitrators and judges, in addition to otherwise defrauding the system of its limited resources, driving up the financial and emotional toll for all involved.
The Centre observes a lengthy history of decades where adverse comments on experts have been reported in case law. If the law continues to admit expert evidence that depends on an assessment of credibility, then biased and rogue expert problems will continue unabated. These problems might be present in other areas of law including family, estates, other civil areas, and criminal law.
Systemic Challenges:
How can we reduce financial ruins or desperation, to sustain hope and survival for families in perilous proceedings?
How can we reduce wrongful civil verdicts?
Current Considerations:
(1) Review to propose a ban on opinion evidence on issues of mixed law and fact.
This proposal was submitted to the Secretary of the Ontario Civil Rules Committee in 2018 (click here to see October 23, 2018 submission, and click here to see April 22, 2021 follow up).
(2) Review to consider to propose banning opinion evidence which depends on an assessment of credibility.
In Bruff-Murphy 2017 ONCA 502 (CanLII) decision, the CA noted at para 15: The trial judge then proceeded to rule that Dr. Bail could not testify on certain sections of his report. The relevant sections were primarily where Dr. Bail was critical of the reliability of the conclusions reached by other doctors examining Ms. Bruff-McArthur. The trial judge also made clear that he did not want Dr. Bail testifying about Ms. Bluff-McArthur’s credibility. [Underlining added.]
Noting Dr. Bail was found to have nearly usurped jury function of assessing credibility of Bruff-Murphy, but experts do it all the time without stating as obviously partisan as Dr. Bail. Dr. Bail was criticized because he wrote too much and let us see the black box behind expert opinion - that there is not much expertise in that box but a lot of predictable bias. Had he written much less, as many other experts had, he would likely have been fine and escaped adverse scrutiny. Experts routinely provide only a "paucity" of expert analysis: CA on Bail in Bruff-Murphy; or commonly provide few reasons despite being required by the Rules to provide fulsome reasons: Wilson J. in Peller v. Ogilvie-Harris, 2018 motion);
This paucity is again, unsurprisingly, reported in Pucci v. Wawanesa 2020 ONCA 265 below, where the paucity could only be challenged and undermined during cross-examination at the time of trial, a point in time where over 99% (per informal and anecdotal statistics, and no known reported statistics to the contrary) of injury cases never reached because they had been settled without undermining this paucity - or "black box" - which contained improper underlying evidence.
It appears possible, if not likely, that once the Rules are amended to ban medical evidence on questions of law and mixed law and fact, the playground which generates improper evidence for medical experts in the legal arena will be drastically altered and restricted. This drastic reduction appears likely to entail a drastic loss in the improper opportunities for medical experts to opine on credibility on their way to their improper legal opinions. It is therefore possible that a ban under (1) above indirectly curtails the problem under (2) above.
Background from Supreme Court of Canada jurisprudence:
Victims of invisible injury, including those suffering from mental, psychological or psychiatric impairments, as well as chronic pain resulting from soft tissue injuries continue to face substantial hurdles in achieving fair settlements or verdicts. Employers, officials, and even physicians have subjected bona fide victims of pervasive chronic pain without objective evidence of injury to persistent suspicions of malingering (Martin vs. Nova Scotia (Workers' Compensation Board, [2003] 2 S.C.R. 504).
"Where, therefore, genuine factual uncertainty arises regarding the worthiness of a claim, this can and should be addressed by robust application of those elements by a trier of fact, rather than by tipping the scales via arbitrary mechanisms (R. Stevens, Torts and Rights (2007), at p. 56). Certainly, concerns about “subjective” symptoms or about feigned or exaggerated claims of mental injury are — like most
matters of credibility — questions of fact best entrusted to the good sense of triers of fact, upon whose credibility determinations of liability and even of liberty often rest. In short, such concerns should be resolved by “a vigorous search for the truth, not the abdication of judicial responsibility" (Linden and Feldthusen, at p. 449; see also Toronto Railway Co. v. Toms (1911), 44 S.C.R. 268, at p. 276; Stevens, at p. 56).": Saadati v. Moorhead, 2017 SCC 28, para. 22, emphasis added.
Running Observations and Discussion:
December 12, 2021
We started to research on CanLii text using Mohan & "ultimate issue", and randomly reviewed the first listed, highest court decision in Saskatchewan: Saskatchewan v. Kotyk 2013 SKCA 140 CanLII. The Court cited another text where the authors appeared to opine that experts are allowed to provide opinion evidence even on "legal analysis". The authors misapprehended Mohan in our respectful view. The Court of Appeal appeared to accept the erroneous text but in our view ultimately came to the right result but by way of unnecessary and wrong reasons. The reasons however illustrate as to why the correct reading of Mohan is that experts cannot opine on any legal analysis because legal analysis is within the knowledge of the judge, or in other words, correctly understanding Mohan, legal analysis is outside the expertise of ordinary factual experts. This case is an example which the Supreme Court of Canada should review as a reason to revisit Mohan to clarify that "ultimate issue" evidence as discussed in Mohan is presumed to be factual evidence ONLY.
(iv) Expert Evidence
[41] The Director submits the Chambers judge erred either by overlooking or rejecting Lise Gray’s opinion that the money was either an instrument of, or proceeds of, unlawful activity.
[42] As previously noted, the Chambers judge qualified Lise Gray as an expert “with respect to illicit drug activities and practices” and relied on her evidence to show that the “denominations and packaging are consistent with denominations commonly used in the drug trade.” The Chambers judge did not, however, mention her opinion regarding the likely source or intended use of the money. She said this of the matter at para. 88 of her affidavit:
Based on the information reviewed, as indicated above, and my training and experience, it is my opinion that the $13,500.00 in bundled currency was derived directly or indirectly from the trafficking of illicit drugs and is thus proceeds of unlawful activity or is an instrument of unlawful activity in that it is likely to be used to engage in unlawful activity that, in turn, would be likely to or is intended to result in the acquisition or production of other property. [Appeal Book at p. 20]
[43] Since the Chambers judge made no mention of this, it may be inferred that he either overlooked it or rejected it. However, since the expert’s opinion expresses a conclusion on the ultimate issue before the Chambers judge, it is important to review the state of the law on this issue.
[44] The leading case on expert evidence in Canada is R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. In that case, Sopinka J., for the unanimous Supreme Court of Canada, set out four factors for the admission of expert evidence: (1) relevance; (2) necessity in assisting the trier of fact; (3) the absence of any exclusionary rule; and (4) a properly qualified expert. Regarding the second point (the necessity criterion), Sopinka J. wrote at pp. 24-25:
As in the case of relevance, discussed above, the need for the evidence is assessed in light of its potential to distort the fact-finding process. As stated by Lawton L.J. in R. v. Turner, [1975] Q.B. 834, at p. 841, and approved by Lord Wilberforce in Director of Public Prosecutions v. Jordan, [1977] A.C. 699, at p. 718:
"An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. In such a case if it is given dressed up in scientific jargon it may make judgment more difficult. The fact that an expert witness has impressive scientific qualifications does not by that fact alone make his opinion on matters of human nature and behaviour within the limits of normality any more helpful than that of the jurors themselves; but there is a danger that they may think it does."
The possibility that evidence will overwhelm the jury and distract them from their task can often be offset by proper instructions.
There is also a concern inherent in the application of this criterion that experts not be permitted to usurp the functions of the trier of fact. Too liberal an approach could result in a trial's becoming nothing more than a contest of experts with the trier of fact acting as referee in deciding which expert to accept.
These concerns were the basis of the rule which excluded expert evidence in respect of the ultimate issue. Although the rule is no longer of general application, the concerns underlying it remain. In light of these concerns, the criteria of relevance and necessity are applied strictly, on occasion, to exclude expert evidence as to an ultimate issue. Expert evidence as to credibility or oath-helping has been excluded on this basis. [emphasis added]
In summarizing the four principles to be applied, the Court stated at p. 25:
[I]t appears from the foregoing that expert evidence which advances a novel scientific theory or technique is subjected to special scrutiny to determine whether it meets a basic threshold of reliability and whether it is essential in the sense that the trier of fact will be unable to come to a satisfactory conclusion without the assistance of the expert. The closer the evidence approaches an opinion on an ultimate issue, the stricter the application of this principle. [emphasis added]
[45] “Ultimate issue” concerns have thus been subsumed into the general Mohan analysis of the admissibility of expert evidence.
[46] Alan W. Bryant, Sidney N. Lederman and Michelle K. Fuerst, the authors of The Law of Evidence in Canada, 3rd ed. (Markham: LexisNexis, 2009), after a review of the treatment of this rule, summarize the current state of the law as follows at pp. 833-84:
In the final analysis, the closer the experts’ testimony approaches an opinion on the ultimate issue, the stricter the courts will apply the requirements of reliability and necessity before admitting such evidence. This is so because the evidence then begins to overlap not only the fact-finding function of the court but the legal analysis that must be applied to the facts in rendering the ultimate decision.
It is now generally said that if expert testimony is rejected it is excluded not because of any “ultimate issue” doctrine, but because such evidence is superfluous and the court can just as readily draw the necessary inference without any assistance from an expert or alternatively, the trial judge may give an appropriate instruction to the jury. However, trial judges as gatekeepers must be alert to the extent of the expert’s influence over juries, especially if the opinion deals with a fundamental issue that is within the province of the jury. [emphasis added]
[47] Mindful of this, we cannot know on what basis the Chambers judge either ignored or rejected the opinion evidence of Lise Gray regarding the likely source or intended use of the money. We do know, however, that he was not necessarily bound to accept her opinion in this regard and that, as a matter of principle, it was open to him to have rejected it on the footings it was superfluous and related to a matter in respect of which he did not need her assistance in drawing proper inferences from the facts as a whole. Indeed, much of Lise Gray’s reasoning in this regard is based on common sense and did not relate to the drawing of inferences relative to a matter beyond the experience of the Chambers judge. For instance, the Chambers judge did not need expert evidence to help him understand the implications of the strange and changing and conflicting stories told by the two men while under criminal investigation. Nor did he need expert evidence to assist him in understanding the general implications of the possession by the two men of a huge amount of hidden and strangely assembled cash for the purported purpose of legitimate commercial transactions of the kind and magnitude they said they had in mind. And on it goes. It might be noted that Lise Gray’s reasoning in relation to the likely source and intended use of the money, when viewed in the context of the whole of the facts of the case, is essentially the same as the reasoning employed by the Director in his submission to the Chambers judge. The issue reduced to what inferences of fact the Chambers judge might properly have drawn in relation to the ultimate issue he was called upon to decide.
[48] The point is threefold. First, it is difficult in the circumstances to say the Chambers judge erred in principle in either ignoring or rejecting the opinion evidence of Lise Gray regarding the ultimate issue he was called upon to decide. Second, it was for the Chambers judge to decide the ultimate issue having regard for what inferences of fact in this regard could reasonably be drawn from the established facts, bearing in mind the standard of proof applicable to the case. Third, the opinion evidence of Lise Gray in respect to the matter under consideration was not of such quality as to carry much, if any, weight in the assessment of an experienced Chambers judge. In sum, the appeal is not destined to succeed or fail on this ground.
December 7, 2021
Flawed expert evidence induces miscarriages of justice. In catastrophic injury cases, such flawed evidence may effectively impose wrongful life sentences of avoidable pain and suffering.
Read a proposed change to the Ontario Rules of Civil Procedure to exclude expert opinion evidence which goes beyond questions of fact and into questions of mixed law and fact: click to read letter to the Rules Committee, October 23, 2018, and letter to Rules Committee April 22, 2021. However, this proposal has been again rejected by the research arm of the Committee on December 1, 2021 for the reason that it is beyond the scope and function of the Committee. We respectfully do not agree. The Rules have been used to codify and to reverse the common law, and therefore the scope and function of the Committee does not preclude its codification of the correct common law on expert opinion evidence. There are other examples, we believe, but here we cite one additional example, namely the deemed undertaking rule. This rule came about as a result of a reasoned preference by Morden A.C.J.O. in Goodman v. Rossi (1995), 1995 CanLII 1888 (ON CA), 24 O.R. (3d) 359 (C.A.) where he wrote:
It is relevant to an examination of the question before us to consider whether the law on this subject may more properly be legislated by the Civil Rules Committee in the form of additions to the Rules of Civil Procedure rather than declared by the courts as cases arise. O'Leary J. was of the view that "if the time comes when it appears that a rule may be necessary to protect privacy infringed by the discovery process that rule should be framed by the Rules Committee, not the court".
I think that it is preferable that the rule we are considering be set forth as part of the discovery rules in the Rules of Civil Procedure rather than in the case-law. This does not mean, however, that I think that the responsible course to take now would be to hold that there is no implied undertaking rule and that there will not be one until the Civil Rules Committee has acted. I say this because, as I have said, the recognition of the implied undertaking rule in Ontario is properly supported on the basis of precedent and policy. Further, as I have noted, it has been steadily recognized in this jurisdiction for the last ten years. Recognition of the rule by the courts does not, of course, preclude the Civil Rules Committee from legislating on the subject as it sees fit.
The advantage of incorporating the law on this subject into the Rules of Civil Procedure is that the rules can deal with the subject completely and comprehensively, something that is not really possible or proper within the confines of a single case -- and it even can be difficult in a series of cases. A properly drawn rule could meet possible concerns about legislation stultifying the development of the law as new circumstances arise. It could give clear guidance on the nature and scope of the obligation not to make improper use of material obtained on discovery and the exceptions to the rule in the form of relief granted by the court, by conferring discretion on the court, where appropriate, to be exercised having regard to stated factors: see, for example, rule 31.11(7). Further, any identified shortcomings in the rules can be amended more quickly than those in judicial decisions if the field were left to be entirely occupied by case-law. [Underlining added.]
As the option of amending the Rules to prevent expert-induced miscarriages of justice appears to be repeatedly closed (per the research arm of the Committee, although not by the A.C.J.O. or the C.J.O., yet), we are alternatively considering intervening on an appropriate case before the Ontario Court of Appeal or preferably the Supreme Court of Canada before its leave to appeal is decided, seeking first for leave and ultimately for a restatement that expert opinion evidence, as discussed in the R. v. Mohan Supreme Court decision, is to be restricted to only factual opinion evidence, not evidence on anything else but facts alone, and hence not evidence on issues of mixed law and fact.
In Mohan, the late legal giant Sopinka J. appeared to have not thought that it was necessary to clearly state this obvious, axiomatic restriction on expert opinion evidence as the first criterion, although he did refer to the implied context of the "fact-finding" process, and assistance for the trier of "fact". (Sadly, he passed prematurely on November 24, 1997, not long after Mohan had been released in November 1994.) This restriction is much more clearly set out in the seminal textbook on evidence bearing his name as to leave no reasonable doubt that common law expert opinion evidence can not be on any issue but fact alone (see Sopinka, Lederman, Bryant: The Law of Evidence in Canada, LexisNexis Butterworths, 2nd Ed. 1997, Chapter 12, commencing para. 12.25). Unfortunately, however, when the less-than-direct references to this restriction on expert evidence are overwhelmed by his direct restatement in Mohan that there is no longer a general prohibition against expert opinion evidence on an "ultimate issue", an inevitable result follows, namely that the restriction is overlooked, hence wrongly lifted, by many legal professionals and lawmakers inadvertently.
This oversight has contributed to subsequent jurisprudence where experts are routinely permitted to opine on the very legal disputes (overwhelmingly of mixed law and fact in nature) being adjudicated by triers of fact (juries and judges) and statutory decision makers at various tribunals. Some of such jurisprudence has been discussed in our submission to the Rules Committee above. Since our above submission, we also uncovered similar jurisprudence, for example, at the Ontario Municipal Board, and the Local Planning Appeal Tribunal (LPAT) which are continued in 2021 as the Ontario Land Tribunal. There, experts have practically become statutory adjudicators before this Tribunal, without of course having been delegated statutory authority to do so by the Ontario Legislature. Experts there are routinely permitted to opine even as to what is in "the public interest"! (See for example, Canadian Rental Development Services Inc. v. Ottawa (City), 2021 CanLII 770 (ON LPAT), para. 44.) What is in the public interest has always been a complex matrix of law and fact, often further intertwined with policy, discretion and assessment of credibility of witnesses which are exclusively vested in judges, juries, or statutory decision makers. Such opinions on the public interest ought never be permitted from opinionated experts, as such opinions, more accurately described as judgments, ought never be covered by or sold for an expert fee.
In observing the misapplication of Mohan in the analysis of other jurisprudence by various statutory tribunals, where a large number of adjudicators or decision makers are not legally trained and where they readily and summarily concluded that they needed "experts" to assist them to decide legal disputes that only they are exclusively authorized to do, amending the Rules of Civil Procedure does not go far enough and is not the best option, although one of the good steps.
Another possible step is to discuss, debate and persuade the authors Fuerst, Lederman, and Bryant on their treatment of the subject in The Law of Evidence in Canada, 3rd ed. (Markham: LexisNexis, 2009), citing Saskatchewan v. Kotak SKCA 2013 CanLII in December 12, 2021 entry above.
December 2, 2021:
Noting an older SCC decision, R. v. Marquard, [1993] 4 S.C.R. 223, where experts were barred from offering opinion evidence on credibility (cited in R v. Mohan - and this, in our view, raises the question of why do we permit participant (not treating) medical experts to provide opinion evidence which relies on their underlying assessment of credibility?)
"It is a fundamental axiom of our trial process that the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert opinion. This Court affirmed that proposition in R. v. Béland, supra, at p. 408, in rejecting the use of polygraph examinations as a tool to determine the credibility of witnesses:
From the foregoing comments, it will be seen that the rule against oath‑helping, that is, adducing evidence solely for the purpose of bolstering a witness's credibility, is well grounded in authority.
A judge or jury who simply accepts an expert's opinion on the credibility of a witness would be abandoning its duty to itself determine the credibility of the witness. Credibility must always be the product of the judge or jury's view of the diverse ingredients it has perceived at trial, combined with experience, logic and an intuitive sense of the matter: see R. v. B. (G.) (1988), 65 Sask. R. 134 (C.A.), at p. 149, per Wakeling J.A., affirmed [1990] 2 S.C.R. 3. Credibility is a matter within the competence of lay people. Ordinary people draw conclusions about whether someone is lying or telling the truth on a daily basis. The expert who testifies on credibility is not sworn to the heavy duty of a judge or juror. Moreover, the expert's opinion may be founded on factors which are not in the evidence upon which the judge and juror are duty‑bound to render a true verdict. Finally, credibility is a notoriously difficult problem, and the expert's opinion may be all too readily accepted by a frustrated jury as a convenient basis upon which to resolve its difficulties. All these considerations have contributed to the wise policy of the law in rejecting expert evidence on the truthfulness of witnesses."
August 24, 2021:
One apparently possible way to reduce the potential impact of wrongful reliance on expert evidence in the civil system is to consider an application of the framework in the criminal system as required by the SCC in R. v. W.(D)., cited in the recent Aug. 19, Ontario CA decision below, R. v. K.J., 2021 ONCA 570 (CanLII):
[16] The appellant raises several grounds of appeal. To dispose of this appeal, it is necessary to address only the ground that the trial judge erred in her assessment of the expert evidence concerning the cause of N.T.’s head injury.
[17] As I shall explain, the trial judge’s approach to assessing the expert evidence on causation was flawed. She first chose which expert she preferred and then viewed the other expert’s evidence and the rest of the trial evidence through that lens. This was an error. The trial judge should have considered the expert evidence, along with all the other evidence at trial, through the analytical framework prescribed by the Supreme Court in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, to determine whether the Crown had met its heavy burden of proving the appellant’s guilt beyond a reasonable doubt.
[18] In the case of conflicting expert evidence that is crucial to understanding the material issues to be decided, it is tempting for a trier of fact merely to choose one expert over another, and to allow an expert witness’s evidence to distort the fact-finding process and overtake the task of objectively assessing the totality of the evidence at trial: R. v. Parnell (1983), 1983 CanLII 3602 (ON CA), 9 C.C.C. (3d) 353 (Ont. C.A.), at p. 364, leave to appeal refused, [1984] S.C.C.A. No. 333; R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at p. 21. It is common ground that such an approach constitutes legal error. Unfortunately, that is what occurred in this case.
[19] A trier of fact must be careful to consider all of the evidence through the W.(D.) analytical framework. Specifically, to convict an accused, a trier of fact must be satisfied beyond a reasonable doubt, based on the totality of the evidence, that all the elements of the charged offence have been proven. This means that the evidence of each witness has to be assessed in the light of the totality of the evidence without any presumptions except the general and over-riding presumption of an accused person’s innocence: R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230, at para. 32. Expert evidence is only a part of the evidence that a trier of fact is required to assess in order to determine if the Crown has proven an accused’s guilt beyond a reasonable doubt: see R. v. Wade (1994), 1994 CanLII 10562 (ON CA), 18 O.R. (3d) 33 (C.A.), at p. 43, rev’d in part, 1995 CanLII 100 (SCC), [1995] 2 S.C.R. 737; R. c. Blackburn, 1999 CanLII 13509 (Que. C.A.), at p. 23; and R. v. Smith (2001), 2001 CanLII 20968 (ON CA), 161 C.C.C. (3d) 1 (Ont. C.A.), at para. 117, leave to appeal refused, [2002] S.C.C.A. No. 156.
July 24, 2021:
By a random review out of general curiosity on recent caselaw reported in the Ontario Reports, another decision of the Ontario Court of Appeal again illustrates the pervasive incidence of expert opinion evidence on questions of mixed law and fact. The Court in Parliament (Litigation Guardian of) v. Conley, 2021 ONCA 261, reported, for example, that "Dr. Ahuja opined that Dr. Park fell below the standard of care because..." [para. 22], and "Dr. Bruce opined that both Dr. Conley and Dr. Park met the standard of care." [para. 23]
The problem, in our view, is that it appears to us that the standard of care necessarily involves a legal construct, a legal test, or a legal threshold. The practice as reported in Parliament appears to contradict the bar against such expert evidence in Pucci, a recent Ontario Court of Appeal decision (discussed below in February 2021 entry).
This pervasive practice appears similar to a tax evasion case against an accused where both sides called accountants to opine whether or not the accused was committing tax evasion! If the courts permit accountants to do so, why would they not be hired by diligent lawyers and get paid to do that. Fortunately, current practice does not suggest that this has occurred in the above criminal law practice, but in medical malpractice and personal injury cases, and likely family law as well as land use and development law, it has. Family law practice was earlier alluded to below. In land use and development law, it is routine that both sides (the municipality and the land developer) call expert evidence to opine on whether or not a proposed development is consistent with provincial legislation, policies and guidelines, as to constitutes "good planning" - which all involve issues or questions of law, or at least questions of mixed law and fact.
April 12, 2021:
Further review is required to consider whether the Ontario Court of Appeal decisions of Beaudoin Estate (below in this entry), and Pucci v. Wawanesa (below in February 2021 entry) are partly inconsistent with the Supreme Court in Clements v. Clements (cited and copied in part in this entry).
The Supreme Court appears to imply that causation issue is a factual inquiry that involves pure questions of fact, and without any underlying or mixed legal question. But Pucci demonstrates that causation involves legal question (hence not a pure question of fact) and rejects the medical opinion admitted at trial.
(What are questions of law, fact, and mixed law and fact? A definition by the Supreme Court of Canada is cited in our submission to the Ontario Civil Rules Committee which is attached at the link above near the beginning of this webpage.)
Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57 (MacPherson, Zarnett and Jamal JJ.A.):
[37] But causation involves a factual inquiry: Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 13; Ediger v. Johnston, 2013 SCC 18, [2013] 2 S.C.R. 98, at para. 29; and Campbell v. Bruce (County), 2016 ONCA 371, 349 O.A.C. 302, at para. 55, leave to appeal refused, [2016] S.C.C.A. No. 325. Such a factual issue should generally not be determined on a motion to determine a question of law under r. 21.01(1)(a).
In Clements, the Supreme Court wrote:
[13] To recap, the basic rule of recovery for negligence is that the plaintiff must establish on a balance of probabilities that the defendant caused the plaintiff’s injury on the “but for” test. This is a factual determination. Exceptionally, however, courts have accepted that a plaintiff may be able to recover on the basis of “material contribution to risk of injury”, without showing factual “but for” causation. As will be discussed in more detail below, this can occur in cases where it is impossible to determine which of a number of negligent acts by multiple actors in fact caused the injury, but it is established that one or more of them did in fact cause it. In these cases, the goals of tort law and the underlying theory of corrective justice require that the defendant not be permitted to escape liability by pointing the finger at another wrongdoer. Courts have therefore held the defendant liable on the basis that he materially contributed to the risk of the injury.
[14] “But for” causation and liability on the basis of material contribution to risk are two different beasts. “But for” causation is a factual inquiry into what likely happened. The material contribution to risk test removes the requirement of “but for” causation and substitutes proof of material contribution to risk. As set out by Smith J.A. in MacDonald v. Goertz, 2009 BCCA 358, 275 B.C.A.C. 68, at para. 17:
. . . “material contribution” does not signify a test of causation at all; rather it is a policy-driven rule of law designed to permit plaintiffs to recover in such cases despite their failure to prove causation. In such cases, plaintiffs are permitted to “jump the evidentiary gap”: see “Lords a’leaping evidentiary gaps” (2002), Torts Law Journal 276, and “Cause-in-Fact and the Scope of Liability for Consequences” (2003), 119 L.Q.R. 388, both by Professor Jane Stapleton. That is because to deny liability “would offend basic notions of fairness and justice”: Hanke v. Resurfice Corp., para. 25.
[15] While the cases and scholars have sometimes spoken of “material contribution to the injury” instead of “material contribution to risk”, the latter is the more accurate formulation. As will become clearer when we discuss the cases, “material contribution” as a substitute for the usual requirement of “but for” causation only applies where it is impossible to say that a particular defendant’s negligent act in fact caused the injury. It imposes liability not because the evidence establishes that the defendant’s act caused the injury, but because the act contributed to the risk that injury would occur. Thus, this Court in Snell and Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, raised the possibility of a material contribution to risk approach. The English law takes the same approach, as discussed below.
[16] Elimination of proof of causation as an element of negligence is a “radical step that goes against the fundamental principle stated by Diplock, L.J., in Browning v. War Office, [1962] 3 All E.R. 1089 (C.A.), at 1094-95: ‘. . . A defendant in an action in negligence is not a wrongdoer at large: he is a wrongdoer only in respect of the damage which he actually causes to the plaintiff’”: Mooney v. British Columbia (Attorney General), 2004 BCCA 402, 202 B.C.A.C. 74, at para. 157, per Smith J.A., concurring in the result. For that reason, recourse to a material contribution to risk approach is necessarily rare, and justified only where it is required by fairness and conforms to the principles that ground recovery in tort.
April 9, 2021:
US Supreme Court decision Google v. Oracle (click here for decision) - fair use in copyright cases is a mixed question of fact and law, and its jury is not vested with the power on deciding a question of law.
In this copyright infringement case, the Supreme Court held that Google could avail itself of the fair use defence to overcome Oracle's claim that Google's copying some 11,500 lines of Java computer program code belonging to Oracle was a copyright infringement. The jury found in favour of Google, but its verdict was set aside on first appeal. The Supreme Court then overturned the appellate court, and found in favour of Google.
Regarding a question of mixed law and fact, we note from the headnotes of the decision:
"The fair use question is a mixed question of fact and law. Reviewing courts should appropriately defer to the jury’s findings of underlying facts, but the ultimate question whether those facts amount to a fair use is a legal question for judges to decide de novo. This approach does not violate the Seventh Amendment’s prohibition on courts reexamining facts tried by a jury, because the ultimate question here is one of law, not fact. The “right of trial by jury” does not include the right to have a jury resolve a fair use defense. Pp. 18–21." [Emphasis added.]
For our purpose, the decision should warrant a closer review to determine if it would shine a different light into our practices in Ontario. The headnotes appear consistent with defence's practice in Ontario of putting the questions of not only threshold, but also of legal causation to the trial judge as preliminary issues to potentially take the quantification of damages away from the jury - given that without legal causation, damages determination might be moot. We observed that legal causation had recently been put to the trial judge by defence counsel in at least one apparently reported decision within the past couple of years or so.
For our purpose, furthermore, if a jury does not have power to decide what is ultimately a legal question such as legal causation, then it suggests that medical expert opinion evidence on legal causation, and on all questions of mixed fact and law, appear to be perplexing or problematic and ought to be reviewed, on the foregoing discussion alone and apart from any other possible grounds.
March 2021 - a tragic case:
Brown v. Kagan, 2018 ONSC 564 CanLII: medical expert opinion on issues of mixed law and fact in family law cases
A tragic case from the family justice area in which, after court decisions and dozens of court orders, death of a four year old child occurred together with death of the parent who was caring for her at the time.
We want to focus here from a limited angle of some issues arising out some expert evidence in the court decision Brown v. Kagan, 2018 ONSC 564 CanLII, and in particular the expert of evidence of Dr. P. S., a psychiatrist with 30 years' experience in Ontario. He spent about 230 hours on this case, and his normal range in a normal case is about 140-200 hours (commencing at para. 51). His report is 220 pages long, and it cost a startling $80,000. His average report of about 170 hours would therefore cost about $60,000. Why so much, and how much proper use of it was needed in court, one wonders. Is it another symptom of a broken system, not just in cases involving injury justice, but this time in the area of family justice? It seems yes to us.
Let's look at the purpose of the report, noting that it was made pursuant to s. 30 the Ontario Children's Law Reform Act, which appears to read in part:
Assessment of needs of child
30 (1) The court before which an application is brought for a parenting order or contact order with respect to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child. R.S.O. 1990, c. C.12, s. 30 (1); 2020, c. 25, Sched. 1, s. 8 (1).
While we are not experts in family law, we only cite here some quick observations which are of concern to us, in our pursuit of screening improper expert evidence. It may in fact be positive that we are not experts in family law, because we may perhaps observe from a more detached and unvested perspective.
1. Why did Dr. S need to become effectively a trial judge before the actual trial, and determine whether many facts occurred including for example whether or not the alleged assault incident involving shoving a dead mouse into the mouth of a party actually occurred?
Was Dr. S. delegated by the Court to perform factual assessment of the potentially numerous incidents in any case regarding credibility, i.e. lies, truths and those in between?
If the assessment of "the ability and willingness of the parties ... to satisfy the needs of the child" involves an assessment of credibility, has the Court abdicated its jurisdiction on the matter, and furthermore, has the expert exceeded his jurisdiction under the Act? The expert evidence appears extraneous and improper. A judge needs help to assess credibility? No. Is the legal system outsourcing its ordinary fact determination role to a cottage industry of ordinary fact checkers under the guise of the exceptional expert opinion evidence? Through inadvertence, facilitated by a crushing workload upon the judges, it appears so to us.
2. Dr. S was noted to have consulted "many experts and others during his assessment" and the lawyer argued that his report "should be given considerable weight." (Para. 87)
Why would an expert need to access another expert in his assessment? Was Dr. S. conducting a trial before the Court trial? So what exactly is Dr. S.'s expertise?
If we cannot define the scope of assessment precisely, little wonder it seems to us that Dr. S. had become a judge of a trial before the actual trial. This naturally leads to open-ended assessments and run-away expert costs.
3. How much of the 220 pages long and $80,000 report by Dr. S. constitute proper and necessary evidence for the trial judge?
We would boldly assert that a proper report that does not venture into many issues of mixed law and fact would cut down the costs and length of such a report to less than 25% of its current costs and length. Duration and costs of trial in custody and access cases could be cut down by at least 50% as a result of the reduction of dubious expert evidence, once the practicing bar fully appreciates that extraneous evidence will be met with effective adverse sanctions. (In the event that the reader is interested in our further reasons, facts, and analysis as to why we boldly stated the above projected costs savings, please do not hesitate to email us at ideas@injurylawcentre.ca. We would be both obliged and privileged to discuss.) Below is our scrutiny of expert evidence in the case, particularly Dr. S.'s expert evidence.
Dr. S.'s evidence included opinion evidence on numerous issues including but not limited to:
(a) the scheduling of custody and access;
(b) overnight access;
(c) the ability of a parent to care for a child;
(d) past conduct of a parent on how it may impact ability to parent;
(e) whether credibility of a certain type or lack thereof on the part of a parent would impact ability to parent; and
(f) best interests of the child.
The serious problem is that all of the above listed issues are issues of mixed law and fact, and they are not issues of fact alone or expert inferences of facts from facts alone. Dr. S. ought to have been kept squarely within a well defined and proper expert role. We do not think that it could have been intended by the legislature for Dr. S. to venture into providing evidence which requires a full understanding of the complex family law jurisprudence which informs and dictates the determination of the above issues.
From reviewing the above decision, the issue of overnight access is impacted by and hence governed by caselaw. Such law was cited, see for example para. 176, to guide decisions of the judges. So when Dr. S. makes a recommendation on overnight access, what is he guided by when he had not been professionally trained. Even if he were legally trained, are our trial judges not qualified to perform their jobs of applying law to facts such that they needed someone to help them how to do it? No, that is their job, and their job alone without help from any expert, as mandated by the role of the judiciary under fundamental constitutional principles.
Similarly, the "maximum contact principle" is law and may be judicially modified where appropriate in the caselaw (see para. 181). This principle underlies decisions on a co-parenting schedule. This is another issue of mixed law and fact and as such is beyond the scope of evidence or recommendation by Dr. S.
"Ability to parent" is another issue of mixed law and fact, as affirmed by past judicial treatment, see for example para. 177.
As to "past conduct", there were indeed some statutory provisions cited to govern the relevance of such conduct (see para. 149), making a determination of any relevance of past conduct an exercise on issues of mixed law and fact. The provisions cited include:
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child.
Same
(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.
Similarly for "best interests of child" at para. 149:
24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
Finally, as to credibility and whether some lies may impact ability to parent, the judge explained at length various judicial treatments, and directions or instructions on the subject, including whether or not unusual/startling sexual activities of a parent impacts the ability to parent. Suffice to say that there is no role for Dr. S. to attempt to parse and understand the evolving law in order to apply his judgment, even in the extremely unlikely event that he was trained and versed in the legal issues, given that the application of facts to the law to make a decision on custody and access is that for the trial judge alone.
An article in Toronto Life magazine by Rachel Heinrichs (November 2020) covered the above tragic case, and observed in regards to assessments such as Dr. S.'s, that:
Parenting assessments have proliferated in lockstep with high-conflict cases over the last decade, and assessors are controversial in the world of family law because they aren’t necessarily experts in custody issues or family abuse and they have no central regulating body. An assessor simply needs to be a mental health professional—a social worker, psychologist or psychiatrist—who will visit the family, interview relatives and draw on psychological testing of the parents. Together, they comprise a cottage industry of professionals who can charge up to $400 an hour. Assessors are hotly debated in online forums by aggrieved parents who have strong opinions about their opinions: many of them gain a reputation for favouring fathers over mothers and vice versa, and lawyers advise their clients to choose accordingly. The College of Psychologists of Ontario has reported that 25 per cent of formal complaints made against its members relate to custody and child protection.
We would submit that when experts opine on issues of mixed law and fact - for which they are not qualified - their opinions are prone to be opinions one merely "happens to have". Over time, such opinions tend to align with the interests of the side which retains and pays for them, as inevitably reported in the article. This is the same experience going on for decades in personal injury law for the same apparent problem of improper expert evidence. We hope that there will be meaningful opportunities, however sad and belated, to examine the apparent improper role of current opinion evidence and its massive related costs which contribute to the continuing utter despair and financial ruins frequently seen in family justice.
A cheaper, quicker system - merely as a result of a much better-defined, and responsive scope of expert evidence - promises to critically save people's finances with related self-worth, acrimony, hopelessness, and even tragic ends.
February 2021:
Pucci v. Wawanesa, 2020 ONCA 265: opinion on causation was a legal opinion and hence improper.
It is noted that in April 2020, the Court of Appeal observed that improper medical expert evidence had been admitted by the trial court in Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265. The Court of Appeal held that Dr. Ozersky's opinion on causation was in fact a legal opinion, and based, unsurprisingly, on a wrong understanding of legal concepts. Those paragraphs (67-71) are reproduced below for ease of reference.
Takeaway: We note that the legal opinion by Dr. Ozersky, offered and accepted below as medical opinion, is very routinely commissioned and tendered below because no one has reportedly challenged such practice at trial level (see paras. 11-14 below where the trial judge did not note any objection by any party or by the Court). A lawyer might even face a negligent lawsuit for proceeding to trial without such legal opinion because they would appear to depart from, and fall below, the expected practice or standard of care. In short, no injury lawyer would risk challenging the practice at trial, and therefore the runaway expert costs and continuing risks of flawed civil verdicts continue unabated. The most promising, prompt and effective prevention of such flawed expert evidence appears to be an immediate change to the Rules of Civil Procedure.
[11] Dr. Ozersky, Wawanesa’s expert, opined that Ms. Pucci’s symptomatology reflected her underlying psychiatric problems and were not the product of injury caused by the accident. In his report, Dr. Ozersky acknowledged the significant deterioration in Ms. Pucci’s condition post-accident, but said:
"I find it hard to imagine that an accident of this nature could be responsible for this woman’s psychological regression, neither do I believe there is any head injury involved of any significance."
[12] Nowhere in the report does Dr. Ozersky explain what he meant when he said the accident was not “responsible” for Ms. Pucci’s psychiatric condition. In his testimony, he explained his understanding of causation:
"My test is on the balance of probabilities, was the accident responsible for her conversion disorder? And my answer would be no, it was not responsible. Her pre-existing history of sexual assault, drug abuse, depressions that’s what, working, those factors working together created the circumstance for a conversion disorder. The accident may have been the a trigger but in itself it would not be sufficient to cause a conversion disorder." [Emphasis added.]
[13] As I understand Dr. Ozersky’s evidence, he believed the accident was not “responsible” for Mr. Pucci’s subsequent psychiatric disorders for two reasons. First, he believed Ms. Pucci’s pre-accident condition put her on the edge of total emotional disintegration such that the slightest event could push her into the psychiatric disorders she developed post-accident. Consequently, because she was so close to disintegration, the accident could not be said to be “responsible” for her condition, even though it triggered the development of that condition. Second, Dr. Ozersky explained that the accident was not “responsible” for Ms. Pucci’s condition because the accident alone could not have caused that condition.
[14] The trial judge, after reviewing the evidence of the two experts, accepted Dr. Feinstein’s opinion that Ms. Pucci’s conversion disorder was triggered by the motor vehicle accident. The trial judge, at para. 83, referred to the accident as “the tipping point in the plaintiff’s ability to function on a day-to-day basis”. She said, at para. 84:
"I conclude that, but for the collision, Ms. Pucci would not have suffered the conversion disorder described by her physicians. This disorder catastrophically impairs her ability to function from a mental or behavioural perspective."
. . .
[67] The steps an insurer must take to fulfil its good faith obligations will depend on the specific circumstances. Here, Wawanesa knew that Dr. Ozersky’s causation opinion contradicted the position Wawanesa had taken for two years. Wawanesa also knew that Dr. Ozersky’s opinion stood alone. Finally, Wawanesa appreciated Ms. Pucci’s vulnerability. She was catastrophically impaired and very much in need of the household and attendant care services she claimed. She could not fund those services on her own. These facts dictated that Wawanesa take a long careful look at Dr. Ozersky’s causation opinion before relying on it to deny benefits.
[68] There is merit in Ms. Pucci’s submission that Dr. Ozersky’s opinion on causation would not have withstood a critical analysis by Wawanesa. As counsel points out, Dr. Ozersky’s concession in cross-examination, that the car accident “triggered” Ms. Pucci’s condition seems entirely inconsistent with the assertion that the car accident did not cause her condition. The trial judge specifically referred to Dr. Ozersky’s concession in cross-examination in finding that the accident was the immediate cause of Ms. Pucci’s condition.
[69] There is an additional problem with Dr. Ozersky’s opinion, that may also assist in determining whether Wawanesa acted reasonably in relying on that opinion. In his report, Dr. Ozersky indicated that the accident was “not responsible” for Ms. Pucci’s condition. He provided little, if any, insight into the analysis that led to that conclusion.
[70] In his testimony, particularly his cross-examination, Dr. Ozersky elaborated on what he meant when he opined in his report that the accident was “not responsible” for Ms. Pucci’s condition. I have reviewed Dr. Ozersky’s evidence relating to causation earlier in these reasons (see paras. 11-13). As summarized, he offered two reasons for his opinion that the accident was “not responsible” for Ms. Pucci’s condition. After acknowledging that the accident triggered the condition, he went on to assert that the accident, while a trigger, was not a cause because the accident, on its own, would not have caused the conversion disorder. Second, Dr. Ozersky testified that the accident was “not responsible” for Ms. Pucci’s condition because, given her tenuous psychiatric state, had the accident not triggered her condition, some other event, even a minor one, would have triggered the condition.
[71] It appears to me that the two explanations offered by Dr. Ozersky for his conclusion that the accident was not “responsible” for the condition are not medical opinions but are, instead, legal opinions about the meaning of causation under s. 3(1) of the SABS-2010. Dr. Ozersky was, of course, not qualified to advance legal opinions. Additionally, his evidence suggests an understanding of causation that is at odds with the meaning given to causation under s. 3(1) in a series of decisions from this court: Greenhalgh v. ING Halifax Insurance Company (2014), 2004 CanLII 21045 (ON CA), 243 D.L.R. (4th) 635, at paras. 10-12, 36; Martin v. 2064324 Ontario Inc. (Freeze Night Club), 2013 ONCA 19, 113 O.R. (3d) 561 at para. 37; Chisholm v. Liberty Mutual (2002), 2002 CanLII 45020 (ON CA), 217 D.L.R. (4th) 145, at paras. 24-31. Nothing in those cases supports the proposition that the proverbial “thin skulled” driver, who has an accident that precipitates or triggers consequences that are particularly dire because of the driver’s prior medical vulnerability, is not covered under her motor vehicle insurance policy. [Emphasis added.]
August 2020:
Further support in relation to the treacherous "causation" issue as explained in our October 23, 2018 submission below: the Divisional Court (Sabadash v. State Farm et. al., 2019 ONSC 1121 (CanLII) found that the Arbitrator erred on applying the correct causation test, and that on appeal, the Director's Delegate correctly set aside the Arbitrator's decision. However, the Court found that the Delegate himself also erred on causation. The Court ordered a new hearing having found both levels below erred on causation. Question: how can we then expect medical experts to understand and apply the causation legal test? It is a question of mixed law and fact, and we ought not allow medical experts to do something where courts after courts, adjudicators after adjudicators - who are trained in the law - have themselves erred. Has anyone verified or challenged medical witnesses on their understanding of the law, the way the Divisional Court examined the decisions below in Sabadash? No, it is unheard of, nor, as we submit, should it be.
May 6, 2020:
The Ontario Court of Appeal today cautioned against confounding causation in fact and legal causation (causation in law) in Stirrett v. Cheema, 2020 ONCA 288. This appeared to have caused significant confusion in the profession. The distinction is quite relevant in the review to exclude expert opinion evidence on "causation". It appears opinion on causation in fact (as it is solely a question of fact) may be permitted, but not where a legal test is required to be applied (hence a question of mixed law and fact). The distinction is explained in Stirrett as follows:
[67] Before turning to an analysis of the trial judge’s reasons, it is first necessary to review the law on causation in the fiduciary context.
(1) Compensation for breach of fiduciary duty[68] Compensation for breach of fiduciary duty is typically determined according to restitutionary principles, where the plaintiff is entitled to be put in as good a position as he or she would have been in had the breach not occurred: Hodgkinson, at p. 440, per La Forest J. In M. (K.) v. M. (H.), [1992] 3 S.C.R. 6, La Forest J., writing for the majority, pointed out that in equity there is no capacity to award damages and that the distinction between damages and compensation is often slight, with the courts tending to merge the principles of law and equity when necessary to achieve a just remedy: at pp. 80-81. Over time, courts have used the term “damages” to denote monetary compensation for breach of fiduciary duty. Remedies in cases of breach of fiduciary duty (such as disgorgement of profits and exemplary compensation) can also have a prophylactic or deterrent purpose: Strother v. 3464920 Canada Inc., 2007 SCC 24, [2007] 2 S.C.R. 177, at paras. 74-77. Irrespective of the purpose, there must be a causal link between the breach of fiduciary duty and the compensation sought.
[69] As we will explain, when considering equitable compensation, or damages, the fiduciary breach must have been the cause in fact – the effective cause – of the loss in respect of which compensation is sought. There is of course a difference between the right to a remedy, and the assessment of damages. Causation in fact is relevant to the first issue. Legal causation, which incorporates limiting factors such as remoteness, proximity, foreseeability, and intervening act, is part of the second issue.
[70] We acknowledge that a source of confusion over the role of causation is in the use of the word “causation” in some of the cases both to describe causation in fact and as part of the test for applying common law limiting factors to limit the extent of a damages claim. These two uses should not be confounded.
[71] In the tort context, Philip H. Osborne cautions that causation in fact, which focuses on the factual issue of the sufficiency of the connection between the defendant’s wrongful act and the plaintiff’s loss, should not be confused with the “control device” of remoteness of damages, sometimes known as proximate cause, which may excuse a defendant from liability for loss caused to the plaintiff on the ground of fairness: Philip. H. Osborne, The Law of Torts, 5th ed. (Toronto: Irwin Law, 2015), at p. 54.
[72] Similarly, Sir Andrew Tipping, in “Causation at Law and in Equity: Do We Have Fusion?” (2000) 7:3 Canterbury L. Rev. 433, at p. 433, emphasizes the conceptual difference between the need to demonstrate a causal relationship that is “separate from and precedes the further controls provided by the concepts of foreseeability and remoteness”.
[73] Writing on fiduciary law, Leonard I. Rotman distinguishes between legal and factual causation: Leonard I. Rotman, Fiduciary Law, (Toronto: Thomson Reuters Canada Limited, 2005). At p. 634, he writes:
Both the common law and Equity require that there be some connection between the harm or loss caused and the actions of the person who is alleged to be liable for it.
…
Each starts with the idea of “but for”, “cause-in-fact”, or “sine qua non” causation. This generally satisfies Equity, but the common law requires more; it demands a finding of materiality or substantial cause to link the impugned activity with the harm to the plaintiff. Further, the common law imports ideas of foreseeability (or reasonable contemplation) and remoteness into its assessment of causality. Mitigation of losses is another relevant consideration under the common law’s assessment of damages for harm or loss, as is contributory negligence. These other considerations do not readily enter into Equity’s assessment of fiduciary accountability. [Footnotes omitted.]
[74] As this passage suggests, and as we will discuss below with reference to the case law, cause in fact is required in the fiduciary context. This case turns on the cause in fact requirement: did the respondent prove that the appellant’s breach of fiduciary duty caused the loss in respect of which compensation is sought? That loss is Mr. Stirrett’s death from the February 2005 angiogram. Because damages were agreed, it is unnecessary to go further and consider the extent of recoverable losses or whether a different measure should apply where the claim is for breach of fiduciary duty rather than negligence.
[75] We turn now to the case law on causation.
(2) Factual causation[76] While the appropriate approach to the assessment – that is, the measure and extent – of damages for breach of fiduciary duty was the subject of debate and discussion in the Supreme Court during the 1990s, namely in Canson Enterprises Ltd. v. Boughton & Co., [1991] 3 S.C.R. 534, and Hodgkinson, the Supreme Court was unanimous that whether dealing with a common law cause of action, or a claim sounding in equity, the plaintiff must establish that the defendant’s wrong was the cause in fact of some injury or loss.
[77] Canson involved a claim against a solicitor who handled a real estate transaction and who failed to disclose to his clients, the purchasers, a secret profit made by a third party. It was claimed that the solicitor was not only liable for the secret profit but also for the losses flowing from the negligence of engineers and pile-drivers who performed work on the purchased property.
[78] All eight justices who heard the case agreed that the defendant solicitor should be liable for the secret profit but not for the construction losses that were caused by the engineers. And, while the justices expressed differing opinions on whether and when the common law limiting factors would apply to compensation for breach of fiduciary duty, importantly, they agreed that, in order to award compensation for breach of a fiduciary duty, there must be a loss or injury that “flows from” or “results from” the breach.
[79] La Forest J., writing for the majority, stated, at pp. 578-79, that “[i]n the case of a mere breach of duty [by contrast to a breach of trust], the concern of equity is to ascertain the loss resulting from the breach of the particular duty”, and that it was imperative “to ascertain the loss resulting from the breach of the relevant equitable duty” (emphasis added).
[80] While generally agreeing with La Forest J., Stevenson J. wrote brief separate reasons in which he noted that the “losses [were] too remote, not in the sense of failing the ‘but for’ test, but in being so unrelated and independent that they should not, in fairness, be attributed to the defendant’s breach of duty”: at p. 590 (emphasis added).
[81] McLachlin J., writing for herself, Lamer C.J., and L’Heureux-Dubé J., agreed that the court was engaged in determining the loss resulting from the breach of the relevant equitable duty: at p. 551. She distinguished causation in fact from legal causation, stating, at p. 552, that “[t]he requirement that the loss must result from the breach of the relevant equitable duty does not negate the fact that ‘causality’ in the legal sense as limited by foreseeability at the time of the breach does not apply in equity” (emphasis added). Similarly, she stated that “while the loss must flow from the breach of fiduciary duty, it need not be reasonably foreseeable at the time of the breach”: at p. 552 (emphasis added).
[82] The Supreme Court next addressed compensation for breach of fiduciary duty in Hodgkinson, a case involving alleged breaches of fiduciary duty and contract in the performance of a contract for investment advice and other tax-related financial services.
[83] La Forest J., writing for the majority, found that Mr. Simms, an investment advisor, owed, and had breached, a fiduciary duty to Mr. Hodgkinson. He found that the damages owed for breach of fiduciary duty were the same as for breach of contract, taking into account the impact of market fluctuations that occurred after the breach.
[84] La Forest J. referred to the task of determining the damages “flowing from” the breach of fiduciary duty. The investment advisor induced Mr. Hodgkinson to make investments that he would not have otherwise made by deliberately concealing his own financial interest, thus “initiat[ing] the chain of events leading to the investor’s loss”: at p. 443.
[85] In summary, in Canson and Hodgkinson there was a causal link between the breach of fiduciary duty of the defendant and the harm to the plaintiff. The plaintiffs in Canson would not have entered into the transaction if the defendant solicitor had disclosed the secret profit. And, in Hodgkinson, the plaintiff would not have made the investments if he had known of the true relationship between the defendant and the developers. The point of contention in these cases was not whether a loss was caused by the breach, but the extent to which compensation for consequential losses could be recovered.
[86] The need for cause in fact to be established before compensation or damages are awarded for breach of fiduciary duty has also been consistently recognized by this court.
[87] For example, in Martin v. Goldfarb (1997), 31 B.L.R. (2d) 265 (Ont. Gen. Div.), the plaintiff claimed damages as a result of losses suffered in commercial dealings with a disbarred lawyer who had been convicted of fraud. Following a first trial awarding $5.95 million in damages to the plaintiff, a successful appeal by the defendant, and a new trial which resulted in the dismissal of his claim, the plaintiff appealed. The issue on the appeal of the new trial was whether the trial judge erred in requiring that the plaintiff’s personal losses be direct: see Martin v. Goldfarb (2003), 68 O.R. (3d) 70 (C.A.). This court stated, at para. 8, that “[d]amages cannot be awarded absent evidence of a causal connection”. This court held that the trial judge was justified in dismissing the claim because the plaintiff had not established a causal connection in fact between the losses he sustained in a bankruptcy and the breach of fiduciary duty.
[88] Further, in Waxman, this court accepted that “[t]he basic rule of equitable compensation is that the injured party will be reimbursed for all losses flowing directly from the breach”: at para. 651 (emphasis added).
[89] Also, in Standard Trust Company v. Metropolitan Trust Company of Canada, 2007 ONCA 897, 232 O.A.C. 74, MacFarland J.A. confirmed, in a breach of fiduciary duty case, that the trial judge was required “on a common sense and reasonable consideration of the evidence, [to] conclude what the losses were that flowed from the breach”: at para. 49 (emphasis added).
[90] To put it succinctly, a plaintiff seeking compensation for breach of fiduciary duty must establish that the losses flowed from the breach.
[91] We add this. While legal causation is not at issue in this appeal, we note that the Supreme Court and other appellate courts have accepted that common law limiting principles may apply to limit equitable compensation in order to treat similar wrongs similarly, but only where: (1) it is necessary to achieve a just and fair result; and (2) doing so does not raise any policy concerns: Canson, at pp. 581, 586-87, per La Forest J.; Hodgkinson, at p. 443, per La Forest J.; Waxman, at para. 662; and Dhillon v. Jaffer, 2016 BCCA 119, 86 B.C.L.R. (5th) 239, at paras. 26-28.
[92] For example, in M. (K.), La Forest J. declined to award any additional compensation for a parent’s breach of fiduciary duty after concluding that the underlying policy objectives for compensation were the same as those animating the jury’s award of damages for sexual assault and battery in a case of incest: at pp. 81-82.
[93] We now turn to the trial judge’s decision in this case.
...
[106] The issue is whether there is a causal link between the breach of fiduciary duty and Mr. Stirrett’s decision to undergo the February 2005 angiogram. The fact that Mr. Stirrett would have undergone the angiogram despite the appellant’s breach of fiduciary duty breaks the chain of factual causation in the fiduciary duty claim, just as it did in the negligence claim. The result would have been the same.
[107] This is the case whether or not causation in a breach of fiduciary duty case is described as “but for” causation. That said, causation in the context of a breach of fiduciary duty is properly characterized as “but for” causation. “But for” causation is not simply a common law concept. It means that the defendant’s breach of duty was necessary to bring about the plaintiff’s loss. The defendant’s wrong need not be the sole cause of the loss, but it must be part of the cause. “But for” causation raises the counterfactual question: what would likely have happened if the defendant had discharged his or her duty? Properly understood, “but for” causation simply means causation in fact.
//
October 23, 2018:
Regarding Project (A): Submitted suggestion to the Ontario Civil Rules Committee to consider amending the Rules to ban certain expert evidence on issues of mixed law and fact. The submission included the following:
"In September 2008, Commissioner Stephen Goudge delivered his final report of theInquiry into Pediatric Forensic Pathology in Ontario, warning against “inappropriately unscientific” and “speculative evidence” among other things. The increased vigilance against flawed expert evidence since the inquiry however did not prevent another regrettable systemic error that was Motherisk which involved “inadequate and unreliable” evidence in child protection and criminal proceedings. In January 2018, Commissioner Judith Beaman delivered her final report of theMotherisk Commission which acknowledged the deep harm that the “unreliable” hair testing by the Motherisk Drug Testing Laboratory has caused Ontario families. The reliance on hair testing went on for about 20 years.
We are now writing to raise concerns that the Ontario justice system, and possibly others elsewhere in Canada, has been admitting and indeed requiring a large amount of flawed expert opinion evidence, specifically on issues of mixed law and fact. [Supreme Court of Canada authorities as summarized in Hodges and Security National Insurance Co. (FSCO Appeal P12-00029, Director’s Delegate Blackman, February 22, 2013, at p. 17): Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748, held that “questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.” Following that decision, Housen v. Nikolaisen, 2002 SCC 33 (CanLII), held that “[q]uestions of mixed fact and law involve applying a legal standard to a set of facts … On the other hand, factual findings or inferences require making a conclusion of fact based on a set of facts.” ] Such opinion evidence amounts to a judgment that is manifestly or axiomatically beyond the scope of medical expert evidence because it exceeds factual inquiry, it requires expertise in law, and it lies exclusively within the province of the trier of fact.
In our respectful submission, while R. v. Mohan affirms generally that there is no longer a rule against opinion evidence on an “ultimate” issue, Mohan does not, and can not, stand for the proposition that opinion evidence on an issue of mixed law and fact is permitted or required. In other words, judges and juries do not need any help from any expert on how to apply the law to the facts.
We have not been able to identify any caselaw by the Supreme Court of Canada authorizing opinion evidence on issues of mixed law and fact. Despite this, we have observed a pervasive practice for more than 20 years of tendering such opinion evidence by the bar under a perceived expectation or requirement by the judiciary. Many questions on issues of mixed law and fact have been put to experts for opinion evidence including:
1. What opinions do you have regarding the levels of attendant care and housekeeping [Bruff-Murphy CA, para 17 as example of housekeeping and AC needs which necessitate application of the legal test of balance of probability] the plaintiff requires since the accident, and will require in the future, as a result of the accident if any? [for certain past and future care needs in a tort claim]
2. Has the plaintiff sustained a permanent serious impairment of an important physical, mental or psychological function?[1] [the “threshold” in auto accident tort cases]
3. Has the plaintiff suffered a complete inability to carry on a normal life? [a test for non-earner benefit under the SABS]
4. Has the plaintiff suffered a substantial inability to perform the essential tasks of her employment during the first 104 weeks after the accident, and complete inability to engage in any employment for which she is reasonably suited by education, training or experience during any period longer than the first 104 weeks after the accident? [a test for income replacement benefit under the SABS]
Embedded in question 1 are several issues of mixed law and fact: (a) application of facts to the legal issue of causation as signaled by “as a result of the accident”; (b) application of the legal standard of proof of balance of probabilities with regard to past care needs; (c) application of the legal standard of proof of “reasonable chance” or “real and substantial risk” of future care needs; and (d) the standard of care a plaintiff is entitled to in tort (“optimal” in tort, as opposed to “reasonably required” under SABS, for example) as embedded in the word “requires”.
Factual and legal causation may both be treacherous even for lawyers and courts as the judicial history of the three cases before the Supreme Court illustrate, where courts below had disagreed only to be further disagreed by the Supreme Court of Canada (Athey v. Leonati. Resurfice Corp. v. Hanke. Clements v. Clements.) Opinion evidence on legal causation, and on any issue of mixed law and fact falls beyond the scope of any expert evidence which is limited to only factual evidence.
As to questions 2, 3 and 4, suffice to say that there is a significant body of caselaw that has developed over many years in interpreting the threshold, non-earner benefit, and income replacement benefit as is to be expected on any question of law and its related application. Mastery of the law itself is a challenge even for practitioners apart from the fact that the law is continually subject to further growth and interpretation. Not only such opinion evidence is unauthorized, it is inappropriately unscientific, speculative, and unreliable expert evidence."
***
Regarding Project (C): Thoughts to consider: that there be established a Chief Justice of Ontario Advisory Committee on Scientific and Expert Evidence, consisting of volunteer experts in law and if available in medicine and science to create and maintain a Summary of Judicial Findings on Scientific and Expert Evidence, with the goal of preventing flawed opinions from continuing to be admitted.
For example, in Bruff-Murphy threshold decision before the CA ordered a new trial, the trial judge noted that the defence orthopedic surgeon gave "outdated" opinions contrary to current "medical and legal findings"! Not a rare event by any means in our experience where many experts wrote in their reports many outdated opinions, although all of these outdated opinions are actually noted in an actual case, as was noted in Bruff-Murphy. Among other things, he testified that as at 2015, chronic pain is not accepted in the medical profession except by those who have vested interest in the area. This appears contradictory to a finding by the Supreme Court of Canada decision in Martin v. Nova Scotia since 11 years earlier in 2004, para. 1, that chronic pain and its sufferers are real.
The Summary is to be continually revised as new judicial findings are noted, to enable judicial notice of prior scientific findings and opinions. Parties who wish to challenge those judicial findings should have their experts directly address opinions to the contrary. This way, the outdated orthopod opinion in Bruff-Murphy on chronic pain should be challenged in a voir-dire before being heard by a jury. Unfortunately, in that case, he appeared to have been able to testify before the jury, and who knows what the effects such evidence, even outdated, would have had on the jury. But fortunately, the verdict was set aside due to issues with psychiatric evidence from Dr. Bail.
Judges are to be entitled to take judicial notice of the Summary. This way we do not inefficiently reinvent the wheel with each and every medical or scientific expert as if we are working on blank canvas. The search for truth is improved by shedding outdated evidence before judges and especially juries.
September 2018:
Why a very serious case in Texas (below) took only six days to reach a $4.8 M verdict? It appears US decisions are much shorter whereas in Ontario, it would be typically 3 or 4 times longer (see for example 65 days in the case in entry of May 2018 below).
September 2, 2018 — A Texas jury has awarded Ford Explorer driver Jose Leos-Ortiz $4.8 million even though he tested twice the legal limit of intoxication after the crash.
Leos-Ortiz was driving on a Texas highway in June 2009 when his 1999 Ford Explorer rolled over and caused his left arm to be severed. Leos-Ortiz sued Ford by claiming he lost his arm because the window glass was tempered and not laminated.
Laminated glass has plastic layers to keep broken pieces intact, and the jury was told Ford used the cheaper tempered glass that caused the plaintiff to lose his arm.
Although he was driving at twice the legal limit of intoxication, his attorney told the jury it shouldn't matter because it was Ford's use of the cheaper glass that caused it to shatter into pieces.
Leos-Ortiz says as a welder he has been unable to work since 2009, so he sued Ford in 2011 for a trial that was reset 11 times due to a backlog of cases.
The 12 jurors listened to six days of testimony about the Ford Explorer crash and deliberated four hours before reaching their verdict.
The jury ruled there was a design defect in the 1999 Ford Explorer when it was originally sold by Ford, a defect that caused the plaintiff to lose his arm. And when asked to determine how much Ford was responsible for his injuries, the jury ruled Ford held 90 percent liability.
The jury held Leos-Ortiz 10 percent liable for the crash because the Explorer had more than 306,000 miles and he hadn't kept up maintenance on the SUV even though it still had its original suspension system.
The plaintiff was awarded $3.3 million for past damages and $1.5 million for future damages.
In its defense, Ford told the judge that Leos-Ortiz was responsible for the crash which cost him his arm because of the "negligence of plaintiff, in that he failed to exercise ordinary care, caution and prudence to avoid the incident and injuries at issue.”
The 1999 Ford Explorer defective window lawsuit was filed in the U.S. District Court for the Southern District of Texas, McAllen Division - Jose Leos-Ortiz vs. Ford Motor Company.
The plaintiff is represented by the Arentz Law Group PC.
May 2018:
Court of Appeal finds trial judge needed expert evidence to determine police negligence claim$1.6 million judgment against Thunder Bay Police overturned
September 16, 2016|Written By Alex Robinson [Canadian Lawyer Magazine]
The Ontario Court of Appeal has ruled [495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656(CanLII)] a trial judge should have considered expert evidence in determining standard of care in a negligence claim against the police.
The court overturned a $1.6-million judgment against the Thunder Bay Police Services Board and officer Frank Barclay that had been awarded to Ricardo Mercuri and his business, Central Auto Parts.
Kirk Boggs said rejection of expert evidence raised the standard of care from reasonable and probable grounds to a requirement to prove guilt.Mercuri brought a negligence claim against the police after he and his business were the subject of a 1997 investigation into stolen vehicles and auto parts. Mercuri was charged, but later found not guilty after a number of charges were withdrawn.
The trial judge in Mercuri’s civil lawsuit, Justice Helen Pierce, found the Thunder Bay police did not meet the standard of care in their investigation, but the Court of Appeal ruled Pierce had erred by rejecting expert evidence in her determination.
“This was a technical, complicated investigation, and the reasons the trial judge gave for considering the police conduct to be clearly egregious are flawed,” Justice Russell Juriansz said in the decision.
The trial judge, Justice Helen Pierce, found the police had not met the standard of care in their investigation for a number of reasons, including a determination that they had “failed to understand the purpose or the scope of the Criminal Code or the case law relevant to their investigation.”
Pierce rejected opinion evidence of an expert — a witness called by the plaintiff — who testified the police had reasonable and probable grounds to arrest Mercuri, saying the evidence was unreliable.
Kirk Boggs, a lawyer with Lerners LLP who represented the police on the appeal, says Pierce’s rejection of expert evidence raised the standard of care from reasonable and probable grounds to a requirement to prove guilt.
“When you’re evaluating a case like this, where there’s an allegation of negligent investigation, the court really requires expert evidence to help understand what the standard of care is in the circumstances of this case and whether the police officers met it,” he says.
The Court of Appeal agreed and found Pierce erred in finding the police had not met the standard of care without expert evidence.
“There are two exceptions to the general rule that expert evidence is required,” Juriansz said. “Neither exception applies here.”
The court said Pierce erred by considering whether the police could prove Mercuri knew the auto parts in question were stolen rather than whether they had reasonable and probable grounds.
“This is an important distinction,” Boggs says. “The role of the police is to investigate and assess whether there are reasonable and probable grounds for an arrest based on the information available at the time. They are not required to prove the accused’s guilt in order to be acting reasonable. That is the role of the Crown and judges.”
Joanna Nairn, of Pape Barristers Professional Corporation, who was one of the lawyers representing Mercuri, says that up until this point, it has been up to trial judges to determine whether they thought expert evidence was necessary to establish standard of care.
“In this case, we don’t feel that kind of deference was given,” she says.
“I think it’s difficult going forward for trial counsel and trial judges to know how much leeway trial judges have to make those determinations and how vulnerable they will be on appeal,” she says.
Sean Dewart, of Dewart Gleason LLP, says the case is very disappointing for “anyone who feels that police accountability should be enhanced, as opposed to being reduced further.”
“The obiter concerning the need for experts decreases access to justice without adding any value to the process,” says Dewart, who was not involved in the case, but has been lead counsel in significant cases against police services.
“If the police need expert evidence to establish that they had reasonable grounds for laying charges, they did not have reasonable grounds, in at least 99 per cent of the charges that they bring to court.”
While the court set aside the $1.6 million judgment, it upheld an award of $70,000 for the loss of property improperly stored by the police.
May 2018:
"Expert witnesses need not be independent, Supreme Court rules"April 30, 2015|Written By David Dias [Canadian Lawyer Magazine http://www.canadianlawyermag.com/legalfeeds/expert-witnesses-need-not-be-independent-supreme-court-rules-6314/]
"Expert witnesses who are not independent can nonetheless provide independent testimony — so ruled the Supreme Court of Canada today in White Burgess Langille Inman v. Abbott and Haliburton, a finely crafted decision that clarifies the test for admissibility of expert testimony.
Admissibility is not about a conflict of interest — but rather, whether the conflict precludes the possibility of independent testimony, ruled the SCC.Abbott and Haliburton was one of 38 respondents, all hardware stores in Nova Scotia that had joined forced to create a buyer’s group with greater negotiating power. The appellant, WBLI, had been the group’s accounting firm.
Unsatisfied with WBLI’s work, the hardware group moved their auditing to Grant Thornton’s office in Kentville, N.S. The group then launched an action against WBLI for professional negligence, wherein they relied upon expert testimony from Susan MacMillan, an auditor in Grant Thornton’s Halifax office.
WBLI objected, arguing that MacMillan’s testimony could not be independent given her relationship to the firm, which now worked the hardware group. WBLI brought a motion for summary dismissal.
The motions judge agreed with WBLI, but was overturned on appeal. Today’s decision, written by Justice Thomas Cromwell on behalf of a unanimous court, upholds the appeal court ruling.
Cromwell begins by underscoring the importance of independent expert testimony: “The question on this appeal is whether one of these basic standards for admissibility should relate to the proposed expert’s independence and impartiality. In my view, it should.”
That being said, Cromwell goes on to explain that the basic threshold for admissibility does not hinge on whether the expert is in a conflict of interest — but rather, whether the conflict precludes the possibility of independent testimony.
“When looking at an expert’s interest or relationship with a party, the question is not whether a reasonable observer would think that the expert is not independent,” the decision states. “The question is whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance.”
A trial judge may later conclude that the expert testimony is so conflicted that it must be expunged, but it’s not a threshold criterion, and it’s not up to a motions judge to make that call.
As the decision states, “A motions judge . . . should generally not engage in the second step cost-benefit analysis. That cost-benefit analysis, in anything other than the most obvious cases of inadmissibility, inevitably involves assigning weight — or at least potential weight — to the evidence.”
Brian Murphy, who represented the hardware group before the courts, calls the decision “the definitive ruling on independence of expert evidence for admissibility in trial cases in Canada.”
“Whether you’re biased or independent or fraudulent or unqualified or a junk expert witness, whatever — the issue is whether that should be dealt with at the gatekeeper stage on admissibility, or whether it should be let in and weighed by a judge.”
Today’s decision, Murphy says, reiterates the test for admissibility laid out in 1994 in R. v. Mohan, which establishes a two-step process. The first, to be decided by a motions judge, determines whether the testimony has: (1) relevance, (2) necessity, (3) absence of an exclusionary rule, and (4) a properly qualified witness.
The second step requires the trial judge to conduct a cost-benefit analysis in order to determine whether the testimony is beneficial to the trial process overall.
The question of independence, however, was never fully answered in Mohan, says Murphy.
“I’ve gone to a number of legal seminars on expert evidence and listened to the audience. And a number of them would get up and say, ‘Can you believe that the Nova Scotia Court of Appeal is saying that you don’t have to be independent? And can you believe that that the Supreme Court of Canada is going to have to answer this question?’”
Believe it or not, the highest court in the land has indeed pronounced on the issue: independent testimony is not the exclusive domain of independent witnesses."
March 2018:
Another example where a victim does not have to call expert evidence to challenge a defendant's expert evidence, at the Ontario Court of Appeal: Tondat v. Hudson's Bay Company, 2018 ONCA 302 (March 27).
[8] As the principal safety measure the appellants relied on was the installation of what their expert said was safe tiling, the essence of the appellants’ complaint in this appeal is that the trial judge erred in the assessment of the expert evidence.
[9] First, the appellants accept that it was open to the trial judge to reject the expert evidence. As such, there is no merit to their argument that the respondent was obliged to call her own expert witness to prove the floor was inherently slippery or to contradict the evidence about the slipperiness of the flooring when wet or dry.
February 2018:
The Motherisk Commission: Why it mattersWednesday, January 31, 2018 @ 8:45 AM | By Katharina Janczaruk
The Motherisk Commission’s final report is to be delivered by Feb. 28, 2018. What might we expect?
The Motherisk Commission was established by order-in-council dated Jan. 13, 2016, with a two-year mandate to establish and lead a “Review and Resource Centre” to provide support and assistance to persons affected by Motherisk test results.
The commission was formed following the release on Dec. 15, 2015, of the Motherisk Hair Analysis Independent Review (Motherisk Review) of hair strand testing for drugs and alcohol between 2005 and 2015...
January 2018:
A Supreme Court of Canada 6-1 decision, BC (WSIB) v. Fraser Health Authority, 2016 SCC 25, consistent with Saadati below, that a decision maker may draw inferences from non-expert evidence, including merely circumstantial evidence to address the issue of causation (of breast cancer of victorious lab technicians in this case). From the head notes of the SCC decision: "The presence or absence of opinion evidence from an expert positing or refuting a causal link is not determinative of causation. Causation can be inferred — even in the face of inconclusive or contrary expert evidence — from other evidence, including merely circumstantial evidence. Subject to the applicable standard of review, the task of weighing evidence rests with the trier of fact. In the instant case, the Tribunal’s original decision cannot be said to have been patently unreasonable. While the record on which that decision was based did not include confirmatory expert evidence, the Tribunal nonetheless relied upon other evidence which, viewed reasonably, was capable of supporting its finding of a causal link between the workers’ breast cancers and workplace conditions."
An important paper on expert evidence as background:
An informative consideration of expert evidence is written in May 2015 by Justice Lauwers of the Ontario Court of Appeal. An important summary, to access the paper only for research purposes, click here.
July 2017:
From the Marshall Report 2017 on auto insurance:
"At WSIB, typical costs for a multi-discipline examination and treatment plan is much less expensive than the cost of medical examinations in the Ontario auto insurance system in two ways. It costs less than the $2,000 per opinion that is currently paid by the Ontario auto insurance system and the injured party does not have to submit to multiple separate examinations. As a point of reference the total cost of medical examinations paid by the WSIB in a year is about $26 million for a system handling 170,000 injury claims a year, compared with the approximately $350 million currently paid in the Ontario auto system for handling just 60,000 injury claims.24"
June 2017:
Saadati v. Moorhead, 2017 SCC 28: a new and critically important development just released by the SCC.
While the Supreme Court appears to get it right on the validity, or lack thereof, of evidence in psychiatric cases specifically, and injury cases generally, it was a missed opportunity (e.g. see para. 38) to consider at the same time the impact on access to justice (by costs, delay, and wrongful verdicts) by further curtailing or discrediting the practice of tendering expert evidence on "matters of credibility - questions of fact best entrusted to the good sense of triers of facts" to avoid "the abdication of judicial responsibility" (at para. 22).
[32] Resort to the DSM or ICD in the context of litigating claims for mental injury has been variously rationalized as fostering objectivity, certainty and predictability of outcomes; and as preventing “indeterminate liability” (Tame, at paras. 193-94; Healey, at para. 65; Queen of the North, at para. 68). These rationalizations, however, do not withstand scrutiny. In particular, the putative objectivity, certainty and predictability said to be furnished by the recognizable psychological illness requirement are in my view overstated. Psychiatric diagnoses —
like diagnoses of physical illness or injury — can sometimes be controversial even among treating practitioners (M. A. Jones, “Liability for Psychiatric Damage: Searching for a Path between Pragmatism and Principle”, in J. W. Neyers, E. Chamberlain and S. G. A. Pitel, eds., Emerging Issues in Tort Law (2007) 113, at p.131). ...
...
[38] Nor should any of this be taken as suggesting that expert evidence cannot assist in determining whether or not a mental injury has been shown. In assessing whether the claimant has succeeded, it will often be important to consider, for example, how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment and the nature and effect of any treatment (Mulheron, at p. 109). To the extent that claimants do not adduce relevant expert evidence to assist triers of fact in applying these and any other relevant considerations, they run a risk of being found to have fallen short. As Thomas J. observed in van Soest (at para. 103), “[c]ourts can be informed by the expert opinion of modern medical knowledge”, “without needing to address the question whether the mental suffering is a recognisable psychiatric illness or not”. To be clear, however: while relevant expert evidence will often be helpful in determining whether the claimant has proven a mental injury, it is not required as a matter of law. Where a psychiatric diagnosis is unavailable, it remains open to a trier of fact to find on other evidence adduced by the claimant that he or she has proven on a balance of
probabilities the occurrence of mental injury. And, of course, it also remains open to the defendant, in rebutting a claim, to call expert evidence establishing that the accident cannot have caused any mental injury, or at least any mental injury known to psychiatry. While, for the reasons I have given, the lack of a diagnosis cannot on its own be dispositive, it is something that the trier of fact can choose to weigh against evidence supporting the existence of a mental injury.
June 2017:
There is a pending Supreme Court of Canada decision (Saadati v. Moorhead, in reserve) involving the question of whether a trial judge may award psychological damages when there is no expert psychological evidence. If the answer is yes, and it should be, the decision should empower adjudicators and triers of fact to be more comfortable in disqualifying unnecessary medical evidence, helping to reduce wrongful civil verdicts induced by medical evidence. The IBC intervened to oppose. [Update: The answer is yes: 2017 SCC 28.]
May 2017:
The Motherisk Lab at Sick Kids appears to be another fiasco where expert evidence was not rigorously examined and challenged. Dozens of children were removed from their mothers due to potentially flawed hair-sample tests for addictions. Class action is underway. Vigilance is required, as ever.
https://www.thestar.com/news/gta/2017/04/30/years-before-motherisk-scandal-sickkids-stood-by-doctor-who-wrote-poison-pen-letters.html
April 2017: Dr. Charles Smith was exposed with his pervasive flawed evidence in child death cases. Eleven years later, his successor is criticized for incorrect evidence in another child death case: https://www.thestar.com/news/crime/2017/04/13/ontario-chief-pathologist-slammed-for-offering-incorrect-opinions-in-court.html
March 2017: http://news.nationalpost.com/news/hired-gun-in-a-lab-coat-how-medical-experts-help-car-insurers-fight-accident-claims This link summarizes some of the instances of serious concerns involving problematic expert evidence. A comment to the article, emphasis added:
"I had a lawsuit from 2010. Car accident. I had an appointment with Dr.S----. My lawyer made sure i had a witness in every appointment. I would also keep a binder with paper on me and when i finished in an appointment i would write down everything that happened. In detail. When we received Dr.S----'s report, the lies were exceptional. I remember crying after reading it thinking how am i supposed to beat lying doctors in court. Long story, short. I settled out of court. These doctors can ruin peoples lives. I dont know how they sleep at night"
Like · Reply · 41 · Jan 5, 2017 3:54pm
December, 2016: Platnick v. Bent, et. al, 2016 ONSC 7340, December 1, 2016 by S.F. Dunphy, J.: The Judge threw out a claim for libel by Dr. Platnick where it was reported that he, writing reports under the name of Sibley SLR an assessment company, was involved in altering conclusions or signing off on final reports without a neurologist first seeing and signing it to validate his opinion. It was only revealed in the latest stages possible: during a contested hearing.
October, 2016: Hoang v. Vincentini, ON CA Oct 5, 2016.
April 2016: Below is an article from Law Times, reproduced here for reference and further consideration only (as such, the views and reasons therein are not necessarily of the Centre).
[Monday, 08 February 2016 08:59 | Written By Alan Shanoff:]
The recently reported decision of Bruff-Murphy v. Gunawardena, 2016 raises important issues concerning the use of civil jury trials and the role of partisan expert witnesses.
The decision arises out of a typical personal injury action. The defendant rear-ended the plaintiff’s vehicle. The plaintiff complained of various injuries that caused “continuous severe pain.”
The action was held before a judge and jury.
Of course, the defence served the jury notice. Insurers and defence counsel know that juries raise uncertainty and the prospect of a jury trial drives down the quantum of many settlements. It is all part of the game-playing that takes place in personal injury litigation.
Following the judge’s charge to the jury, defence counsel brought a threshold motion. Under Ontario law, non-pecuniary damages are not recoverable in motor vehicle personal injury litigation unless the injured person has died or has sustained serious disfigurement or permanent serious impairment of an important physical, mental, or psychological function.
Ontario Superior Court Justice Paul Kane dismissed the motion, concluding the plaintiff’s impairments satisfied the threshold. That finding allowed the plaintiff to recover general damages for her substantial injuries. Yet the jury came back with a nominal award of $23,500 for general damages and dismissed all other claims.
How is it that a plaintiff can be found to have suffered permanent serious impairment of an important function and yet only receive a general damages award of $23,500? This plaintiff is married, in her thirties, and has three children. She has a long life expectancy.
The only reasonable explanation I can come up with after reading the judge’s reasons on the threshold motion revolves around the expert evidence introduced by the defence.
One of the defence’s two expert witnesses was an orthopedic surgeon who testified there was no medical finding to indicate physical impairment, there must be a medical reason to explain pain, pain is a perception, and it is not evidence-based medicine.
The trial judge rejected this evidence as not being of relevance. More importantly, he criticized the defence choice of a jury trial, stating, “Medical and legal thinking as reflected in jurisprudence, has moved beyond a belief that ‘unless you can see or feel an injury, there is no injury’. Such outdated hypothesis however may be one of the reasons for the current popularity by defendants as in this case to select trial by jury in the hope the jury might accept this outdated argument.”
The second defence expert witness was more problematic. This witness, a psychiatrist, testified that the plaintiff was faking and shouldn’t be believed. To put this evidence into perspective, this expert told the court he had conducted about 5,500 independent medical exams since 1989 at approximately $5,500 per assessment.
All but “a few dozen” were conducted for defendants.
He currently conducts an average of seven to 14 assessments for insurers or defendants per month. These assessments form a large part of the psychiatrist’s practice.These facts alone should have served as a red flag. In three previously reported cases, findings were made that this witness had “become an advocate for the party calling him,” had taken a “partisan approach” or “presented as a notably partisan witness.”
Yet the court felt compelled to accept the witness as an expert and did not allow the witness to be cross-examined on these prior judicial findings. The judge rejected this expert’s evidence as being not credible for purposes of the threshold motion. In doing so, he stated, the witness “failed to honour his obligation and written undertaking to be fair, objective and non-partisan” and “[T]he vast majority of his report and testimony in chief is not of a psychiatric nature but was presented under the guise of expert medical testimony.”
It seems the defence witnesses had their desired effect on the jury. How else to explain the nominal jury award in a case where the trial judge concluded,
“The evidence of the plaintiff as to her injuries, level of symptoms and limitations are corroborated by her health care providers including some of their testing for veracity. Such evidence is further corroborated by her husband and her friends. In such ways, the plaintiff’s credibility is strongly supported.”
Yes, this is but a single case of injustice. But we are left to speculate on how many deserving plaintiffs have entered into low settlements or suffered low awards due to the evidence of experts of the ilk trotted out by the defence in this case. Where do we go from here?
I have two suggestions for consideration. First, let’s reconsider the use of civil juries for personal injury litigation. Quebec and the Federal Court of Canada have abolished civil jury trials. England has long since barred the use of juries for personal injury cases. Some states and territories in Australia no longer allow civil jury trials, while others allow civil jury trials but not for motor vehicle litigation. Second, we must do a better job of eliminating partisan experts from participating at any stage of personal injury cases. Efforts to do away with hired gun experts have failed.
The trial judge in the case discussed above declared he would not qualify witnesses as experts in the future if they took a similar approach to that taken by the defence psychiatrist. That’s of small comfort to the plaintiff, Ms. Bruff-McArthur.
Update November 2015: Below is an article first published in the Lawyers Weekly on November 6, 2015, with the goal of reeling in the billion-dollar runaway expert train. [A recent SCC decision Inman v. Abbott et al, 2015 SCC 23 (April 30, 2015) applying Mohan (on admissibility component) and further exploring expert evidence, should be considered as Inman appears to refine (by largely adopting ONCA Abbey) a second component, that of cost-benefit residual discretion after admissibility has been established, to further tighten control on opinion evidence.]
"With expert witness, less may be more"
Much of current medical expert evidence in personal injury cases is superficial, speculative and unnecessary. This article briefly highlights some reasons for the growth of improper expert evidence along with two promising grounds to reel in the runaway expert train.
We are mindful of the Charles Smith saga that resulted in a grave miscarriage of criminal justice (Dr. Charles Smith testified for the Crown in more than a dozen cases and helped to wrongfully convict innocent people of killing the young children under their care). In his final report (Inquiry into Pediatric Forensic Pathology in Ontario), commissioner Stephen Goudge stated that Smith gave “inappropriately unscientific” and “speculative evidence,” among other things. He reminds us that experts “are not given free rein to discuss other matters on which they happen to have an opinion.”
To illustrate the superficial and speculative nature, let us examine some major disputes where expert evidence is invariably tendered. The focus of the inquiry here is whether or not there is a required expertise and a required expert reasoning process to underpin the expert opinions. For explanations set out below, I conclude that what we find is a plain black box with no expertise inside. Here are some typical disputes:
1. Does the plaintiff “reasonably require” 24/7 supervisory care?
2. Is the plaintiff suffering a “complete inability to carry on a normal life?”
3. Is the plaintiff suffering a “complete inability to engage in any employment for which she is reasonably suited by education, training or experience?”
4. Has the plaintiff sustained “permanent serious impairment of an important physical, mental or psychological function?”
The dispute on 24/7 supervision is typically the largest head of damages in a severe brain injury case. In a typical case, the victim makes a remarkable recovery but still suffers serious cognitive impairments at the time of trial. He is not wheelchair-dependent and can walk, talk, drive, and engage in intimate relationships. Does he reasonably need round-the-clock supervision?
It must be noted that the dispute is not about the causation of brain injuries and related cognitive impairments. Such causation is rarely in dispute. The real dispute is as framed, and the key underlying issue is whether or not the victim suffers a sufficient degree of disability to warrant the finding that 24-hour supervision is “reasonably required.”
The question directed at the experts is one of an unusual nature. It mixes facts and law. But what makes it even more unusual is that the key facts are not static but dynamic — an always moving target, largely dependent on an assessment of credibility of the victim under the total circumstances of the case.
The expert is, in essence, asked to assess three things concurrently to render an opinion: credibility, facts, and applicable law. This formula is problematic as it injects much subjectivity and confusion into the process. First, an assessment of credibility is part of the daily functions and hence the ordinary knowledge of the adjudicator. This is not a task where expert assistance is necessary. Furthermore, even if permitted, an assessment of credibility by an expert is grossly incomplete because he or she does not have access to the totality of the evidence in the case, including cross examinations at trial, before rendering a report. Second, an assessment of complex applicable legal standards with convoluted interpretations is similarly a task for adjudicators, not for medical witnesses.
Last, but not least, is the complete lack of any expert reasoning process engaged by the experts. Let me explain. A neuropsychologist, for example, testifies first as to the nature of the trauma, the location of the injuries to the brain, and the resultant types of impairments such as memory and executive functioning. Eventually, the expert leaps to support or to deny 24/7 supervision. My question is just how, precisely, does the expert leap to this opinion? If it was a negative opinion, is it because there were only two incidents over the five years preceding trial where the victim forgot to turn off the stove? What if there were five or seven incidents of risky behaviour? Would 10 incidents be sufficient? Maybe still not, but what about 50? Where is the expert reasoning process in all of this to underpin the expert opinion? In my view, the opinion is just an ordinary feeling, belief or opinion the experthappens to have. There is no expertise behind this leap but only a black box with nothing beyond the ordinary knowledge of an adjudicator.
The foregoing analysis can be similarly applied to the remaining issues listed above, and many more in injury law. Briefly, as to the verbal threshold issue 4 above, do we need a medical witness to enlighten us as to what constitutes “serious,” seriously?
In R. v. Mohan, the Supreme Court of Canada sets out the substantive requirements for admissibility of opinion evidence, namely relevance, necessity, no exclusionary rule, and properly qualified expert. In the foregoing analysis, “necessity” and “properly qualified expert” appear to be the two promising grounds to reel in the runaway billion-dollar expert train, and in the process save an untold number expert-induced miscarriages of injury justice."
Update September 2015:
In Snelgrove v. Jensen, January 27, 2015 ONSC 585 McNamara J. confirmed: [9] "It is common ground that experts are not to usurp the function of the trier of fact." But it appears however that McNamara J. did not appreciate the new culture or sea change that business can not be as usual, given the system is now severely broken as confirmed by the SCC in Hryniak, and also the caution by Lauwers J.A. above, when McNamara stated:
[7] Having said that, however, cases where the evidence of a properly qualified expert is entirely excluded are rare. That is so because, of course, there is a general requirement that parties to an action be afforded the opportunity to lead a complete claim or defence, and they are usually afforded that opportunity so long as it complies with the rules of evidence. That is the position advanced by counsel for the defendant in this case.
We believe that the costs and delay inflicted on the legal system beyond the points of broken must temper the rights of parties to lead a disproportionate claim or defence. Expert evidence ought to be more rigorously examined and excluded at the gate.
Update April 2, 2015:
CASE STUDY: The case of Elbakhiet v. Palmer appears to be a rare opportunity to scrutinize some important aspects (including expert evidence's interaction with issue of credibility) in the civil justice system as it relates to motor vehicle claims. Rare is the opportunity to review some of the reasons a jury gives for its verdict, but that was done here, as the "Verdict Sheet" was attached to the costs decision: http://www.canlii.org/en/on/onsc/doc/2012/2012onsc3666/2012onsc3666.html?searchUrlHash=AAAAAQATZWxiYWtoaWV0IHYuIHBhbG1lcgAAAAAB&resultIndex=3. This gives us rare opportunity for insight and study of how jury makes a decision in Ontario, particularly in case where post-concussion syndrome is alleged.
The trial judge's decision, a study in judicial diligence, set out numerous restrictions on a proposed's expert evidence, and not permitting the defence doctor to testify about "credibility" of the injured plaintiff. However, the jury took into consideration of the repeated references about poor credibility in the records! The trial judge decision is here: http://www.canlii.org/en/on/onsc/doc/2012/2012onsc2529/2012onsc2529.html?searchUrlHash=AAAAAQATZWxiYWtoaWV0IHYuIHBhbG1lcgAAAAAB&resultIndex=1
The third decision, this time by the Court of Appeal in July 2014, reducing costs awarded to plaintiffs from nearly $600,000 to $100,000 to give in part "more proportionality" to the trial verdict which was practically identical to the defence offer of $145,000: http://www.canlii.org/en/on/onca/doc/2014/2014onca544/2014onca544.html?searchUrlHash=AAAAAQATZWxiYWtoaWV0IHYuIHBhbG1lcgAAAAAB&resultIndex=6
The trial decisions are to be further studied on the issue of explosion in expert evidence in civil cases. All three decisions are to be further studied as to what can be improved with regard to access to justice.
Update March 26, 2015:
The Ontario Court of Appeal released its much anticipated decision in Westerhof v. Gee (March 26, 2015) clarifying "participant experts" (i.e. treating experts), and non-participant or litigation experts i.e. those retained specifically for the proceeding who did not treat. An assessment of credibility of plaintiff by experts again played a central role, in the form of "malingering". Malingering is such a subjective assessment, so susceptible to hired-gun arbitrary affiliation with the referring source that ought not be admitted as part of "expert" opinion evidence. Such subjectivity in expert opinion evidence perpetuates the hired-gun expert problems for the years and decades still to come. This ought to be kept out by judge's gate keeping function.
Westerhof attempts to clarify who has to sign the expert form under rule 53. This has taken 5 years of confusion to clarify words under the rule, ought to have known how words are intrinsically malleable. It remains to be seen if expert costs are any better (but no reasons to hope, given no empirical experience to the contrary). But the principle of proportionality in the rules of evidence before the Superior Courts was not engaged by the Court of Appeal in its discussion. Nor the opportunity to reduce subjective litigation expert evidence (such as on "malingering" was seized.) Litigation expense was not reined in.
http://www.ontariocourts.ca/decisions/2015/2015ONCA0206.pdf
[138] First, the evidence of Ms. Gross and Ms. Murray concerning Mr. Westerhof’s condition in August 2006 could have undermined the evidence and credibility of the defence expert, Dr. Cividino.
[139] As I read his evidence, Dr. Cividino testified, in effect, that as of June 2006, Mr. Westerhof was malingering. Moreover, Dr. Cividino testified in-chief that Mr. Westerhof did not complain of hip pain at the time of his examination.8
[140] On the other hand, Ms. Gross and Ms. Murray observed pain behaviours and restricted hip movement. They described no observations suggesting malingering. In my view, their evidence had the potential to undermine Dr. Cividino’s credibility and neutrality concerning whether Mr. Westerhof was malingering and concerning whether Mr. Westerhof was experiencing hip problems in the summer of 2006 – factors that may well have been important to the jury’s (and the trial judge’s) acceptance of Dr. Cividino’s evidence. [emphasis added.]
Update February 24, 2015:
From: http://www.thecourt.ca/2015/01/15/the-court-of-appeal-for-ontario-applies-the-mohan-and-abbey-tests-in-meady:
The Court of Appeal for Ontario Applies the Mohan and Abbey Tests: Meady v Greyhound Canada January 15th, 2015. This case, in dismissing the appeal, applies the Mohan and Abbey tests and clarifies the principles relating to the necessity wing of the test. This decision by Chief Justice Strathy upholding the trial judge’s decision further emphasizes the deference accorded to trial judges in conducting these inquiries. Finally, this case highlights the embedded concerns of trial efficiency and judicial resources, endorsing a position that trial judges should appropriately use their gatekeeping functions to prevent unnecessary expert evidence.
In Meady v Greyhound Canada Transportation Corp, 2015 ONCA 6, the Ontario Court of Appeal upheld a trial judge’s decision to disallow evidence from two experts. The appeal arose from a Greyhound bus accident that occurred in Northern Ontario in December 2000. The appellants in this case are passengers who chose to sue the respondents: the bus driver, Greyhound, the police officers involved, the Crown employer, and the passenger responsible for causing the crash.
Facts and Judicial History
Shaun Davis was travelling from Alberta to Nova Scotia for the holidays. While stopped in Ontario, Davis told the bus driver Albert Dolph that he thought someone had searched bags and that people were going to hurt him. The police were called and Constable Parrish arrived. He determined that no one went though Davis’ bags and observed that Davis was exhibiting symptoms of anxiety and mild paranoia. Parrish spent further time with Davis and asked him if he wanted to see a doctor.
Davis later called the police again and Parrish along with Constable Singleton arrived back to the bus station. Davis again stated that he felt people were going to hurt him. Parrish informed the bus driver that Davis was exhibiting symptoms of paranoia but that he was not a safety risk. At one point in the bus ride Davis got out of his seat, expressing the same paranoid thoughts. While Dolph told Davis to go back to his seat, he did not do so and eventually jumped into the driver’s area, grabbed the steering wheel and caused the bus to roll into a ditch.
The trial began in 2010, and focused much on the standard of care the respondents owed the appellants. The trial judge refused to admit expert evidence from neither Steven Summerville, a police officer who has knowledge of use of force principles, nor from Arthur Atkinson, a transportation safety consultant who was familiar with accident investigation and bus standards. In short, while Davis was noted in default in the action, the trial judge dismissed the claims against all the other parties. In his view, the officers exercised the proper standard of care in relation to their interaction with Davis, the bus driver exercised reasonable care and skill in operating the bus and Greyhound did not improperly train Dolph. An appeal was sought in the Court of Appeal for Ontario.
Analysis
The Trial Judges’ Decision Attracts Deference
The admissibility of expert evidence is governed by the Supreme Court of Canada’s decision in R v Mohan, [1994] 2 SCR 9 and the Ontario Court of Appeal’s decision in R v Abbey, 2009 ONCA 624. The test for admissibility contains four parts:
(a) the evidence must be relevant;
(b) it must be necessary to assist the trier of fact;
(c) it must not be subject to an exclusionary rule; and
(d) the expert must be properly qualified.
The admissibility of both experts turns on the trial judge’s decision on the second requirement of the test. As written by Chief Justice Strathy, speaking for the Court in this case: “The application of the necessity criterion asks whether the trier is able to form a correct judgment about the issue without the assistance of persons with special knowledge.”
While the standard of care for professionals is a question of law, the specific requirements of the standard are questions of fact. While expert evidence is usually used by the trier of fact, the trial judge in this case used the exception for “non technical matters or those which an ordinary person may be expected to have knowledge” to refuse to hear the evidence.
All in all, Chief Justice Strathy concludes that the trial judge’s decision requires deference as indicated by the relevant principles. For instance, judges must be astute to disallow experts that are unnecessary as this is a waste of judicial resources (see Johnson v Milton (Town), 2008 ONCA 440) and there is “no exact way to draw the line” in these sorts of inquiries (see R v DSF (1999), 43 OR (3d) 609 (CA)).
Summerville’s Expert Evidence
In the appellant’s view, Summerville’s evidence pertaining to police crisis management techniques should not have been excluded. In their view, this would have allowed the trier of fact to conclude that the officers breached their standard of care as they were deficient in their investigation and should have used crisis intervention techniques to prevent Davis from riding the bus. Chief Justice Strathy rejects this argument, holding that the trial judge properly performed his gatekeeping function. He notes that the trial judge was able to make findings of fact relating to the interactions between officers and Davis. For example, the trial judge concluded that there were no grounds to detain Davis and that based on Davis’ demeanour, the officers acted reasonably.
Atkinson’s Expert Evidence
The appellants asserted that the trial judge should have included evidence that would have allowed him to conclude that the driver, Dolph, should have slowed down when Davis was out of his seat. Again, Chief Justice Strathy upheld the trial judge’s decision. Since the trial judge concluded that the speed at which Dolph was driving was reasonable, it was not necessary for him to admit expert evidence relating to this issue.
The Standard of Care
Finally, the appellants challenged the trial judge’s articulation of the standard of care. The trial judge found that the standard of care applicable to the bus driver was that of a “reasonable bus driver in the circumstances” and “whether the bus driver used all due, proper and reasonable care and skill in the circumstances” [Day v Toronto Transportation Commission, [1940] SCR 433]. In regards to the officers, the standard was that of “the reasonable officer in like circumstances” and the officer “must live up to the accepted standards of professional conduct to the extent that it is reasonable to do so in the circumstances” [Hill v Hamilton-Wentworth Regional Police Services Board, [2007] 3 SCR 129]. Chief Justice Strathy found no issues with the trial judge’s findings.
Update February 23, 2015:
An observation: an excerpt from a paper on how R. v. Mohan applies in professional discipline cases by Neil J. Perrier March 2011:
...
In 1994, the Supreme Court of Canada, in R. v. Mohan, set out the following general criteria for the admissibility of expert opinion evidence:
1. The evidence is relevant to some issue in the case;
2. the evidence is necessary to assist the trier of fact;
3. the evidence does not violate an exclusionary rule; and
4. the witness is a properly qualified expert.
...
In 2009, a Law Society Disciplinary Panel held that expert opinion evidence in the area of real estate law met the Mohan test of necessity where the panel “…determined that estate administration is a complex, highly technical and specialized area of law. The relevant practices in this specialized area of law went beyond the knowledge and expertise of the Panel. It followed that the proposed expert evidence was necessary because it would be of assistance to the Panel in providing relevant information and appreciating the technicalities of estate administration that were outside the Panel's knowledge and experience.”9
On the criteria of necessity, the Supreme Court held that the opinion must be “necessary in the sense that it provides information which is likely to be outside the experience or knowledge of the judge or jury.” The Court explained that the expert evidence must be necessary in order to allow the fact finder: 1) to appreciate the facts due to their technical nature, or; 2) to form a correct judgment on a matter if ordinary persons are unlikely to do so without the assistance of persons with special knowledge.10
If the trier of fact is able to reach a conclusion without the assistance of experts, the opinion evidence is superfluous and thus is unnecessary.11 [emphasis added.] [[Note: The Ontario Court of Appeal stated in Hoang v. Vinciniti, October 5, 2016: [62] First, there is no longer a general rule barring opinion evidence on the ultimate issue. Instead, a court should apply the criteria of necessity and the cost-benefit-analysis more strictly on evidence dealing with the ultimate issue: Alan W. Bryant, Sidney N. Lederman and Michelle K. Fuerst, Sopinka, Lederman & Bryant- The Law of Evidence in Canada, Fourth Edition (Toronto: LexisNexis, 2014), § 12.152. In the present case, both the appellants and Vicentini adduced expert evidence on the issue of the cause of the accident. The appellants led evidence from Hrycay as to whether Vicentini could have avoided the collision, the same issue they now contend the trial judge should not have allowed Green to address. The appellants’ position is inconsistent and, therefore, not tenable.]]
[9 LSUC v. Anderson, 2009 L.S.D.D. No. 3, at para. 38.
10 Sopinka, The Law of Evidence in Canada, 2nd Ed., © 1999 Lexis Nexis Canada Inc., at p. 620.
11 Ibid.]
It must be demonstrated that the expert possesses special or peculiar knowledge in the area beyond the triers of fact, acquired by academic study or by practical experience, to be able to assist the Court.12
Whether or not the Mohan criteria are as strictly applicable in the administrative context, it is important to bear in mind those criteria in ensuring that a Discipline Panel is not deprived of relevant expert evidence but also in ensuring that the Panel retains a “gate-keeping” function in ensuring that irrelevant expert evidence is not admitted. For example, in cases of an allegation that a professional member has failed to maintain the standard of practice of the profession, I would suggest that prosecuting counsel as a general rule seek to introduce expert evidence regarding what standard the member must maintain or run the risk of having failed to prove an element of the allegation. As another example, in cases of defending professionals before their regulatory body, I would suggest carefully scrutinizing the referring documentation and allegations against a member in considering the admissibility of expert opinion evidence with a view to determining precisely what facts are in issue in a hearing and thereby determining the relevance (if any) of the expert opinion. Justice Galligan, in Golomb v. College of Physicians and Surgeons of Ontario, states:
It follows from the requirement that the charge must be particularized to that extent that an accused must not be tried on a charge of which he has not been notified. It also follows that evidence ought to be confined to the charge against him. Evidence relating to other suggestions of misconduct should not be presented because it could have a very serious prejudicial effect upon the tribunal and it is evidence relating to conduct which he is not prepared to defend.13
In circumstances where the allegation of professional misconduct referred is that the member failed to apply applicable statutes, regulations and codes, should an opinion that the member failed to maintain the standard of practice of the profession be admissible? I suggest not. [...Perrier]
Update February 2015:
The Ontario Court of Appeal in Moore v. Getahun (January 29, 2015) provided these observations on expert evidence:
[33] Expert evidence is a significant and controversial feature of modern civil litigation. It constitutes an exception to the rule that witnesses may only testify as to facts, not opinions, and that it is the exclusive prerogative of the trier of fact to draw inferences from proven facts. The expert evidence exception operates where specialized knowledge is required to determine the implications of the bare facts and where the trier of fact is not competent to draw the necessary inferences unaided: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at p. 23; R. v. Abbey, 2009 ONCA 624 (CanLII), 246 C.C.C. (3d) 301, at para. 94.
[34] Expert evidence has become more significant with the explosion of scientific knowledge and technical innovation. Many cases have been described as a “battle of experts”. Medical negligence cases are a prime example. The trier of fact requires the assistance of expert witnesses to decide issues pertaining to the standard of care, causation and prognosis.
[35] The use of expert evidence poses difficult issues that have been the focus of consideration in civil justice reform. How do we control the added costs associated with the explosion of expert witnesses? How do we ensure that a party has a fair opportunity to challenge an adverse expert witness? How do we ensure that expert witnesses offer an unbiased scientific or technical opinion based upon their training and expertise, rather than act as “hired guns” who present unbalanced opinions unduly favouring the party that retains them?
In the Centre's view, the "explosion" of expert evidence is on "scientific knowledge and technical innovation", not on an issue such as disability which requires an assessment of credibility. The Court of Appeal did not endorse the notion that expert evidence may include expert opinions on credibility. Since credibility is a central issue in many soft-tissue injury cases, expert evidence on issues that require an assessment of credibility should not be permitted. This will save costs, improve access to injury justice for an overwhelming number of soft-tissue, chronic-pain injury victims.
Unfortunately, in Ontario, the regulation on the threshold issue actually requires "expert" evidence on disability, thereby appears to legalize and entrench the existence of experts on credibility. Improvements in the area of expert evidence in vast number of auto injury cases in Ontario will require legislative amendment, in addition to new jurisprudence.
Update June 2014:
To start, why standard jury charges by trial judges across Canada can not include the findings by the Supreme Court of Canada above in regard to chronic pain sufferers? Why must trial judges continue to allow defence medical experts waste trial time with their continuing opinions that without objective evidence of injury there is no disability, contradicting the Supreme Court of Canada findings?
Why would judges allow medical experts to give opinion evidence on the underlying issue of credibility of a victim, when (1) no one is an expert in credibility; and (2) credibility is or should be exclusively for the triers of fact? The Supreme Court decision in R. vs. Mohan (circa 1996) was recently followed by the Alberta Court of Appeal in R. vs. Jacobs (May 2014) to overturn a conviction by excluding expert evidence which went beyond his expertise. Countless experts in Ontario auto injury cases differ in opposing opinions primarily because they differ on the underlying credibility of the injured plaintiffs. Such expert evidence ought to be excluded, saving hundreds of millions in costs to all participants, reduce chances of flawed civil verdicts (Charles Smith saga, below), improving the access to justice.
***
One important observation by many observers is that in personal injury cases, many medical-legal experts do not fairly conduct medical assessments and their expert reports are tainted or deeply flawed. Some "rogue" experts continue to obfuscate injury justice by misleading arbitrators and judges, in addition to otherwise defrauding the system of its limited resources, driving up the financial and emotional toll for all involved.
The Centre observes a lengthy history of decades where adverse comments on experts have been reported in case law. If the law continues to admit expert evidence that depends on an assessment of credibility, then biased and rogue expert problems will continue unabated. These problems might be present in other areas of law including family, estates, other civil areas, and criminal law.
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