A Test Motion to Exclude Expert Evidence?
May 6, 2020:
GOING FORWARD, PLEASE CONSULT OTHER UNDERLYING ANALYSIS ON THE WEBPAGE "IMPROPER EXPERT EVIDENCE" TO INFORM ANY TEST CASE.
June 2017:
A recent case of the Ontario CA reviews this topic and close study is required: Bruff-Murphy v. Gunawardena, 2017 ONCA 502 (CanLII):
(2) The Trial Judge’s Gatekeeper Role with Respect to Expert Opinion Evidence
(1) Qualification Stage
[33] Ms. Bruff-McArthur submits that the trial judge should have exercised his gatekeeper function to exclude Dr. Bail from testifying on the grounds that his methodology was unfair; he was biased; he was engaged in an exercise to destroy her credibility; and his prospective evidence would amount to a violation of the rule in Browne v. Dunn. In the alternative, she argues that the trial judge erred in not instructing the jury that they should disregard Dr. Bail’s testimony.
[34] In White Burgess, a decision released shortly before the judgment under appeal, the Supreme Court of Canada provided clarity and guidance regarding challenges to experts on the basis of bias and lack of independence. Cromwell J., writing for the court, stated at para. 19 that the basic structure for the law relating to the admissibility of expert evidence has two main components.
[35] The first component requires the court to consider the four traditional “threshold requirements” for the admissibility of the evidence established in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9: (i) relevance; (ii) necessity in assisting the trier of fact; (iii) absence of an exclusionary rule; and (iv) the need for the expert to be properly qualified.
[36] The second component is a “discretionary gatekeeping step” where “the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks”: para. 24. It is a cost-benefit analysis under which the court must determine whether the expert evidence should be admitted because its probative value outweighs its prejudicial effect.
[37] The analysis under the second component is best thought of as a specific application of the court’s general residual discretion to exclude evidence whose prejudicial effect exceeds its probative value: R. v. Bingley, 2017 SCC 12 (CanLII), 407 D.L.R. (4th) 384, at para. 16. As Charron J.A. wrote in R. v. K. (A.) (1999), 1999 CanLII 3793 (ON CA), 45 O.R. (3d) 641 (C.A.), at para. 76, application for leave quashed, [2000] S.C.C.A. No. 16: “The balancing process which lies at the core of the determination of the admissibility of this kind of evidence is not unique to expert opinion evidence. It essentially underlies all our rules of evidence.” In White Burgess, Cromwell J. referenced Mohan and made the same point at paras. 19 and 20:
Mohan also underlined the important role of trial judges in assessing whether otherwise admissible expert evidence should be excluded because its probative value was overborne by its prejudicial effect — a residual discretion to exclude evidence based on a cost-benefit analysis: p. 21.
…
The reasons in Mohan engaged in a cost-benefit analysis with respect to particular elements of the four threshold requirements, but they also noted that the cost-benefit analysis could be an aspect of exercising the overall discretion to exclude evidence whose probative value does not justify its admission in light of its potentially prejudicial effects: p. 21.
[38] Cromwell J. further explained that lack of independence or impartiality on the part of an expert witness goes to the admissibility of the witness’s testimony, not just to its weight: para. 40. Specifically, in the governing framework for admissibility, the court should consider an expert’s potential bias when determining whether the expert is properly qualified at the initial threshold inquiry: para. 53.
[39] However, he added that bias should also be considered when the court exercises its gatekeeping exclusionary discretion, writing at para. 54:
Finding that expert evidence meets the basic threshold does not end the inquiry. Consistent with the structure of the analysis developed following Mohan which I have discussed earlier, the judge must still take concerns about the expert’s independence and impartiality into account in weighing the evidence at the gatekeeping stage. At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence. At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence. [Emphasis added.]
In the overview of his discussion of the admissibility of expert opinion evidence, he instructed at para. 34 that:
[A] proposed expert’s independence and impartiality go to admissibility and not simply to weight and there is a threshold admissibility requirement in relation to this duty. Once that threshold is met, remaining concerns about the expert’s compliance with his or her duty should be considered as part of the overall cost-benefit analysis which the judge conducts to carry out his or her gatekeeping role. [Emphasis added.]
[40] In the present case, the trial judge cited White Burgess and appears to have relied upon Cromwell J.’s statement that in the threshold inquiry it would be quite rare for a proposed expert’s evidence to be ruled inadmissible. As Cromwell J. noted at para. 49, all that needs to be established at that stage is whether the expert is “able and willing to carry out his or her primary duty to the court.” The trial judge concluded that Dr. Bail met this rather low threshold requirement.
[41] That was a discretionary decision, which is entitled to deference from this court: R. v. Shafia, 2016 ONCA 812 (CanLII), 341 C.C.C. (3d) 354, at para. 248. Another judge might well have concluded that Dr. Bail failed to meet even this low threshold test. I do not need to decide whether the trial judge erred on this point, however, because he clearly erred in principle in failing to proceed to the next step of the analysis – consideration of the cost-benefit analysis in Dr. Bail’s testimony. The trial judge did not reference this second component of his discretionary gatekeeper role. To the contrary, he appears to have believed that he was obliged to qualify Dr. Bail once he concluded that the witness met the initial Mohan threshold. There is, therefore, no decision to defer to and it falls to this court to conduct the second part of the analysis.
[42] In my view, on a proper balancing, the potential risks of admitting Dr. Bail’s evidence far outweighed the potential benefit of the testimony. It was evident from a review of Dr. Bail’s report that there was a high probability that he would prove to be a troublesome expert witness, one who was intent on advocating for the defence and unwilling to properly fulfill his duties to the court.
[43] The first red flag was Dr. Bail’s methodology. There is a real risk of unfairness in engaging in a hunt for discrepancies between what a plaintiff says during a short interview and what medical records dating back several years reveal. This unfairness is exacerbated when the expert denies the plaintiff the opportunity to explain the apparent discrepancies. As anyone with the slightest experience with litigation would attest to, oftentimes what appears to be an inconsistency in witness’s evidence is not an inconsistency at all. Oftentimes all that is required is a simple explanation to resolve what appears to be a conflict in what a witness said on two different occasions. Ms. Bruff-McArthur was not given an opportunity to offer such an explanation.
[44] A related concern is that the vast bulk of the content in Dr. Bail’s report was the recitation of perceived inconsistencies between what Ms. Bruff-McArthur said in the independent medical examination and what the medical records revealed. In conducting that analysis, Dr. Bail was not bringing to bear any medical expertise. This was work that is routinely done by trial lawyers and law students or clerks in preparation for a cross-examination. Thus, the benefit of the evidence was very low, while the potential mischief was very high, especially given that none of these inconsistencies were put to Ms. Bruff-McArthur.
[45] It was also clear from the report that Dr. Bail was coming dangerously close to usurping the role of the jury in assessing Ms. Bruff-McArthur’s credibility. In the “Summary and Conclusions” section of his report he opines:
It is my opinion that if Ms. Bruff-McArthur was being forthright, this pattern of discrepancies and inconsistencies should not exist. I am therefore of the opinion that Ms. Bruff-McArthur has not been forthright with respect to her accident related claims and her provided medical and psychological history, and that the history which she has been providing over time since the accident cannot be relied upon. It is evident that Ms. Bruff-McArthur has serious credibility issues regarding her accident related claims.
In the penultimate paragraph of his report, he states: “lack of reliability, credibility and validity are factors in this case.”
[46] Next, the whole tone of the report was a reliable predictor of Dr. Bail’s testimony. He goes out of his way to make points that are meant to damage Ms. Bruff-McArthur’s case. For example, he opines on the views of several physicians who examined Ms. Bruff-McArthur, concluding that she misled them. Dr. Bail speculates that one of her therapists may have been improperly holding herself out as a qualified psychologist. He criticizes a psychiatrist who treated Ms. Bruff-McArthur, Dr. Arora, because they discussed “personal family things, such as her daughters’ potty training and her son’s school problems” when “psychotherapy was requested and paid solely in relation to treating accident related claims.” Dr. Bail notes that Ms. Bruff-McArthur and Dr. Arora discussed the notions of karma and reincarnation. He chastises Dr. Arora for introducing personal religious beliefs in a therapy session. I note that there is no evidence that these topics reflect Dr. Arora’s personal beliefs.
[47] I could go on with further examples, but the point is that in his report Dr. Bail goes beyond a mere lack of independence and appears to have adopted the role of advocate for the defence. Given the paucity of psychiatric analysis in the report versus the high degree of potential prejudice in wrongly swaying the jury, a cost-benefit analysis would have invariably lead to the conclusion that Dr. Bail should have been excluded from testifying.
[48] To be fair to the trial judge, he attempted to ameliorate these concerns by specifically instructing the witness not to testify regarding certain issues, such as his criticism of other doctors. However, as the trial judge essentially acknowledged in his Threshold Motion ruling, had he undertaken the cost-benefit analysis he would not have permitted Dr. Bail to testify.
(2) During the Expert’s Testimony
[49] As we know, the trial judge permitted Dr. Bail to testify and determined that Dr. Bail crossed the line of acceptable expert evidence. In order to analyze his response to this situation, it is first necessary to consider whether the trial judge’s concerns regarding Dr. Bail’s testimony were well founded. Assuming that they were, the next issue is what the trial judge should have done in the circumstances.
(1) Did Dr. Bail’s Testimony Indicate Lack of Impartiality?[50] I have had the opportunity to consider in detail Dr. Bail’s evidence and I concur with the trial judge that it is most troubling. For present purposes, it is unnecessary to recount his testimony in full. Instead, I will focus on some of the more concerning aspects of his testimony.
[51] First, I repeat my concern regarding his methodology. It was fundamentally unfair to Ms. Bruff-McArthur not to give her an opportunity to explain the alleged inconsistencies in the information she provided. As mentioned above, there is a real concern that Dr. Bail was usurping the role of the trier of fact in determining the issue of Ms. Bruff-McArthur’s credibility. Despite that concern, I am willing to acknowledge that in a case such as this, where the existence and extent of the alleged injuries are not easily determined, consideration of the plaintiff’s veracity is a necessary part of an independent medical examination. However, if Dr. Bail were serious about probing this issue, he would not have adopted this methodology. He would have reviewed the inconsistencies with Ms. Bruff-McArthur.
[52] Second, and equally troubling, is that to the extent that Dr. Bail referred to the scientific testing conducted, he torqued the results so that they produced results that supported his conclusion. For example, he testified that Ms. Bruff-McArthur was administered a test where she was instructed to count backwards from 100 by 7s. He noted that she provided a few incorrect answers in her count. Dr. Bail considered this to be an inconsistency because she was able to get some of the count right but also made mistakes. For Dr. Bail, inconsistencies meant that the subject was not being truthful about her condition.
[53] Dr. Bail then testified that in cases where a subject mathematically “just doesn’t have it together,” he asks them to recite the months of the year in reverse order. Apparently, Ms. Bruff-McArthur did very well on this test, answering correctly and quickly. Dr. Bail testified that that this result was also an inconsistency because she did so well on that test and so poorly on the 7s test. So, despite the fact that Dr. Bail testified that he administers the month test as a check for those who are not mathematically inclined, he calls into question her credibility for doing well on the month test and faring poorly on the 7s test.
[54] Dr. Bail went on to administer another mathematical test, requiring her to calculate how many $1.50 magazines could be purchased with $10. Ms. Bruff-McArthur did not do well on this test and Dr. Bail considered this to be an inconsistency. The other logical conclusion, that Ms. Bruff-McArthur was consistently weak in performing math exercises, seems not to have crossed his mind.
[55] In short, the tests were deliberately interpreted to fit a theory of mendacity. Unless she got every question on every test correct, she was inconsistent and, in Dr. Bail’s opinion, inconsistency equated to an untruthful subject.
[56] A third concern relates to a subtle point that demonstrates Dr. Bail’s fundamental misconception of his role. He questioned Ms. Bruff-McArthur regarding her physical limitations. It is, of course, perfectly appropriate for a psychiatrist conducting an independent medical examination to ask questions about a subject’s physical injuries and resultant limitations. That information could provide useful context for the examination. However, Dr. Bail was quite open about the fact that he asked the questions for an entirely different purpose. He testified that he asked about physical limitations so that he could compare those answers to any future surveillance evidence he may receive. This is consistent with how Dr. Bail regarded the purpose of his review of the medical records. There is a troubling pattern that suggests that he understands his primary role to be to expose inconsistencies and not to provide a truly independent assessment of Ms. Bruff-McArthur’s psychiatric condition.
[57] Fourth, when Dr. Bail was cross-examined about his emphasis on perceived inconsistencies, he denied ignoring those parts of the medial records that did not fit his diagnosis. He explained their absence from his report on the basis that “you can’t put everything in your report.” Later in his cross-examination, Dr. Bail stated, “I’m interested in the things that don’t corroborate, not the things that do corroborate.” Again, this testimony makes plain Dr. Bail’s lack of awareness of the need to be impartial as an expert witness.
[58] Before turning to what the trial judge should have done in face of this testimony, I wish to correct one of his findings. The trial judge stated in his reasons on the Threshold Motion that Dr. Bail did not have any notes of his examination of Ms. Bruff-McArthur. Based on this observation, he concluded that Dr. Bail was making his testimony up as he went along to support his position.
[59] That is not accurate. Dr. Bail did have notes. Indeed, the trial judge ruled that he could refer to them as he testified. It is not a fair conclusion that Dr. Bail was making up his testimony. Having reviewed his evidence carefully, I am of the view that there is no basis to conclude that Dr. Bail was anything but truthful in his testimony. I have concerns regarding Dr. Bail’s independence and his methodology; I do not have any concerns about his veracity.
(2) What Should the Trial Judge Have Done in this Case?[60] Under the White Burgess framework, and in most other leading cases on the admissibility of expert evidence, the issue of admissibility is decided at the time the evidence is proffered and the expert witness’s qualification is requested by a party. To the extent that this is possible, it should be the norm: R. v. J.-L.J., 2000 SCC 51 (CanLII), [2000] 2 S.C.R. 600, at para. 28.
[61] In the present case, however, the trial judge appears to have assumed that, once Dr. Bail was qualified as an expert, his gatekeeper role was at an end. The trial judge erred in law in reaching that conclusion.
[62] A trial judge in a civil jury case qualifying an expert has a difficult task. She must make a decision based on an expert report that will, in most cases, never be seen by the jury. While the report provides a roadmap of the anticipated testimony and specific limits may be placed on certain areas of testimony, the trial judge obviously cannot predict with certainty the nature or content of the expert’s testimony.
[63] Where, as here, the expert’s eventual testimony removes any doubt about her independence, the trial judge must not act as if she were functus. The trial judge must continue to exercise her gatekeeper function. After all, the concerns about the impact of a non-independent expert witness on the jury have not been eliminated. To the contrary, they have come to fruition. At that stage, when the trial judge recognizes the acute risk to trial fairness, she must take action.
[64] Charron J.A. made this point in K. (A.), writing as follows at para. 73:
In some cases it may be possible to rule on the admissibility of the proposed evidence on the basis of counsel’s submissions alone. However it may at times prove necessary to hold a voir dire in order to properly consider all relevant factors. Where the trial is before a jury and the question of admissibility cannot be clearly determined in a summary fashion, it may indeed be prudent to scrutinize the evidence during the course of a voir dire before admitting it. While in some cases the ruling can be made early in the proceedings, in other cases, it may be only later in the trial that the value of the proposed evidence can be properly assessed. For example, in this case, it was only after the main Crown witnesses had testified and the defence strategy became apparent that the determination of the admissibility of the expert evidence could properly be made. [Emphasis added and footnote omitted.]
And in a later decision in R. v. Ranger (2003), 2003 CanLII 32900 (ON CA), 67 O.R. (3d) 1 (C.A.), at para. 63, Charron J.A. stated:
[The dangers of expert opinion evidence] must be considered in the balancing process that forms part of the test for admissibility. Further, the trial judge’s gatekeeper function does not end with the ruling on admissibility. The expert evidence must be carefully constrained in its presentation with a view to minimizing the associated dangers so that, in the end result, the judge is still satisfied that the probative value of the evidence exceeds its prejudicial effect and is properly admissible. [Emphasis added.]
[65] As mentioned above, the cost-benefit analysis under the second component of the framework for admitting expert evidence is a specific application of the court’s general residual discretion to exclude evidence whose prejudicial effect is greater than its probative value. This general residual discretion is always available to the court, not just when determining whether to admit an item of evidence, but after the admission stage if the evidence’s prejudicial effect is only revealed in the course of its presentation to the trier of fact.
[66] An instructive discussion is found in R. v. White, 2011 SCC 13 (CanLII), [2011] 1 S.C.R. 433, a case that dealt with the admissibility of post-offence conduct in criminal matters. A majority of the Supreme Court stated at para. 50:
Otherwise admissible evidence may still be removed from consideration by the jury on the basis that it is more prejudicial than probative. This may be achieved by refusing to admit the evidence at trial. It can also happen that the disproportionately prejudicial nature of a certain item of evidence only becomes apparent in light of the evidence as a whole. The trial judge may then instruct the jury in his charge that they may not consider a certain item of evidence in their deliberations. [Emphasis added.]
The discussion from White makes clear that the court’s residual discretion to exclude prejudicial evidence is an ongoing one that continues throughout a trial. It may be invoked if prejudice manifests after initially admitting the evidence. Thus, because the second component of the framework for admitting expert evidence is an application of this residual discretion, the court has residual discretion to exclude expert evidence even after admitting it, if later in the trial prejudice emerges that was not apparent at the time of admission.
[67] Given this ongoing gatekeeper discretion, the question remains of what, as a practical matter, the trial judge could or should have done in this case. His first option would have been to advise counsel that he was going to give either a mid-trial or final instruction that Dr. Bail’s testimony would be excluded in whole or in part from the evidence. Had he taken that route, he would have received submissions from counsel in the absence of the jury and proceeded as he saw fit. Alternately, he could have asked for submissions from counsel on a mistrial, again in the absence of the jury, and ruled accordingly. In the event that he had to interrupt Dr. Bail’s testimony mid-trial, he would have had to consider carefully how best to minimize the potential prejudicial effect of the interruption from the respondent’s perspective.
[68] The point is that the trial judge was not powerless and should have taken action. The dangers of admitting expert evidence suggest a need for a trial judge to exercise prudence in excluding the testimony of an expert who lacks impartiality before those dangers manifest.
[69] I am mindful that counsel for Ms. Bruff-McArthur did not seek an instruction regarding Dr. Bail’s evidence. The law is generally that the failure to object to a civil jury charge is fatal to a request for a re-trial on appeal based on misdirection or non-direction. However, this rule is subject to the exception that where the misdirection or non-direction resulted in a substantial wrong or miscarriage of justice, it may warrant a new trial: Pietkewicz v. Sault Ste. Marie District Roman Catholic Separate School Board (2004), 71 O.R. (3d) 83 (C.A.), at paras. 22-28; and Briscoe Estate v. Canadian Premiere Life Insurance Co., 2012 ONCA 854 (CanLII), 113 O.R. (3d) 161, at paras. 70-71. In my view, the admission of Dr. Bail’s testimony resulted in a miscarriage of justice.
[70] I would go further and state that, given the importance of a trial judge’s on-going gatekeeper role, the absence of an objection or the lack of a request for a specific instruction does not impair a trial judge’s ability to exercise her residual discretion to exclude evidence whose probative value is outweighed by its prejudicial effect.
[71] The respondent submits that even if this court concludes that Dr. Bail’s testimony should have been excluded, there is no basis to order a new trial because he was just one of many witnesses and his testimony likely did not have a significant impact on the jury’s verdict.
[72] It is impossible to gauge with any certainty the impact of Dr. Bail’s testimony. The fact that he was one of only two witnesses to testify for the defence suggests that his testimony may well have been an important factor in the jury’s analysis of the case. In any event, a focus on the inability to measure the precise prejudice caused by the testimony misses the point entirely, which is that there has been a miscarriage of justice in this case. This court has a responsibility to protect the integrity of the justice system. This is not a “no harm, no foul” situation. No doubt, another trial will be costly and time consuming, but it is necessary because the defence proffered the evidence of a wholly unsuitable expert witness.
June 2017:
A challenge under LAT Rules may be brought as a motion, on notice, returnable at the hearing or an earlier date with at least 10 days notice and materials are set out under the Rules. An example of notice given in a Case Conference Summary Form might be as follows:
List of expert witnesses to provide opinion evidence and the issue each expert will address:
1. Dr. A. B., insurer examiner, orthopaedic surgeon, to be cross-examined. The claimant intends to challenge, under Rule 10.4 of the LAT Rules, the admissibility of his expert evidence and reports. The reasons are, subject to further advice by counsel or as permitted by the Tribunal:
(a) he did not have any reasonable apprehension of the essential tasks involved in the occupation of the claimant;
(b) he has no proper education, training or experience in the assessment of how impairments may become requisite disability for the claimant;
(c) he has no proper education, training or experience on the aspects of law that are involved on the issue of legal causation inherent in the question of mixed law and fact, namely of whether or not the claimant meets the test of disability as a result of the accident;
(The issue of legal causation continues to be unsettled and convoluted even for the legal profession, as evidenced by relatively frequent Supreme Court pronouncements.[1] How and when is a physician trained in the relevant law including legal causation and the meaning of the civil standard of proof of balance of probabilities – as opposed to medical or scientific certainty?)
(d) to the extent that his evidence relies on an assessment of credibility of the claimant, such assessment of credibility and all related evidence which is based on such credibility assessment be excluded, because the assessment of credibility is within the ordinary knowledge or ability of the trier of fact. His assessment of credibility is therefore not necessary to assist the trier of fact.
[1] Athey v. Leonati, [1996] 3 S.C.R. 458; Resurfice Corp. v. Hanke, 2007 SCC 7; Clements v. Clements, 2012 SCC 32.
May 2017:
In a test motion, some hurdles to be considered:
First, certain expert evidence seems to be legislated with regard to the verbal threshold for pain and suffering in auto cases.
Second, the SABS schedule incorporates numerous assessments by certain medical personnel, and in practice, these assessments are accepted without challenge as expert evidence.
One possible path to disqualify such expert evidence is the concept of administrative vs. adjudicative (further research to examine whether this concept may or may not relate or contradict these labels in Supreme Court jurisprudence on jurisdiction and control of administrative vs. adjudicative tribunals).
The function of a doctor's note to postpone a school test or exam should attract a lower standard of vigilance, given proportionality and practical goals or concerns (abuse, simplicity, speed, and ultimately fairness on a dime). The functions of an insurer examination under the SABS serves similarly to doctors' notes, but before they may enter adjudication of serious disputes in injury cases which may impact the lives of victims and their families in a serious way, they must be re-examined for proper admissibility.
March 2017:
A reminder from the Supreme Court of Canada, as cited in Hoang v. Vicentini, 2012 ONSC 1066 CanLII by Wilson J.:
[12] In recent times, judges have been cautioned about their role as a gatekeeper at trials. Justice Stephen Goudge in his report “Inquiry into Pediatric Pathology in Ontario” [the “Goudge Report”][3] emphasized the need for trial judges to be vigilant when admitting expert testimony, to scrutinize the necessity and validity of a proposed expert’s testimony before determining if it ought to be admitted. This is not a new concept as it has always been the function of the trial judge to determine the admissibility of evidence. The Supreme Court of Canada has said[4], “…The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties can go at the end of the day to weight rather than admissibility…”
[4] R. v. J.-L.J. 2000 SCC 51 (CanLII), [2000] 2 S.C.R. 600
March 2017:
Reference should be had to the discussion under the "improper expert evidence" webpage of this site for some related aspects to this test case webpage.
It appears that the License Appeal Tribunal may be a better forum to test this motion for reasons which may include the fact that it is a different tribunal than Courts and is not bound to follow all the reasons and practices of a complex civil system. Its home statute and enabling goals should include drastic expediency which by definition sacrifices some "safeguards" that have become untenable due to costs and delay. In other words, its admission of expert evidence should be arguably distinguishable from Hoang above. Furthermore, LAT rules in fact allow for advance notice of challenging admissibility of expert evidence. LAT therefore may be a better vehicle, embedded in a tribunal created expressly for expediency for accident benefits disputes, to conduct this test case - rather than to test it in the ultra conservative [see e.g. Hryniak ONCA that insisted on full trials and had to be reversed later by the SCC] and unduly complex and excessively expensive forum of the Ontario Superior Court.
Update March 2016:
Inaccessibility of civil and family justice in Canada has been recognized as one of the greatest challenges to the Candian justice systems today (Hryniak, SCC). But the excesses from unbridled complexity and costs associated with expert evidence continue to grow, unabated despite recent rule amendments in Ontario, with little prospects to control them in the coming years.
It may take a landmark test case initiated by a plaintiff injury lawyer which successfully challenges admissibility of expert evidence on key aspects of injury law evidence, discussed below, to help reel in the expert train. An motion before trial may be necessary in order to know the parameters to prepare for trial. If you are considering to go in the arena on this issue, we hope our thoughts below may be of service.
Below is an article first published in the Lawyers Weekly on November 6, 2015. [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 April 2016: A sad tale to tell, although we must refrain from commenting about whether justice was done in the following case, after the fact. What is sad is the logic in the procedures of our courts does not appear to be sufficiently nimble or responsive to the on-going problems at hand. Among other things, there is hardly anyone leading on the issue in the legal profession bar and bench included, there is no leading institution with "the buck stops here" accountability for prevention and excellence.
Following a denial to permit cross examination of Dr. Bail on his prior adverse comments in Bruff-Murphy v. Gunawardena, 2016 ONSC 7, the sitting trial judge might have had second thoughts about his decision, for the future, as it appears from paragraph 125 that he "will not qualify witnesses as experts in the future whose reports present an approach similar to that of Dr. Bail in this case." In this case, the plaintiff lost the case.
In the injury bar in Ontario at least, Dr. Bail is well-known for reasons which related to Riverfront a medical assessment outfit which had adverse history in the jurisprudence. The problems fairly said are on both sides of the aisle. Dr. Bail here is allowed to ventured into credibility of witnesses, and as such, at last, a never ending fountain of disputes, and of medical-legal work, let alone expert-induced wrongful civil verdicts.
Dr. M. Bail
Qualifications As Expert Witness
[53] Unlike Dr. Maistrelli and numerous medical doctors and experts called by the plaintiff, Dr. Bail is of the belief that the plaintiff is faking and is not credible in her description of her injuries and incapacity as a result of the MVA.
[54] The plaintiff during the trial sought to prevent Dr. Bail from testifying as an expert on the basis of bias as evidenced in his expert’s report and several reported decisions which held that Dr. Bail had:
(a) Become an advocate for the party calling him as a witness which is not the role of an expert: Morrison v. Greig, 2007 CarswellOnt 343; [2007] O.J. No. 225 (ONSC) paras. 47-48.
(b) Appropriated the role of advocate of the insurer rather than an impartial witness. His partisan approach and focus on inconsistencies are troubling, seriously weaken his credibility and weight of his testimony which should be disregarded: Gabremichael v. Zurich Insurance Co., [1999] O.F.S.C.I.D. No. 198, paras. 31-33.
(c) Presented as a notably partisan witness: Sohi v. ING Insurance Co. of Canada, [2004] O.F.S.C.D. No. 106, para. 38.
[55] On the authority of R. v. Karaibrahimovic, 2002 ABCA 102 (CanLII) paras. 7-8; R. v. Ghorvei (1999), 1999 CanLII 19941 (ON CA), 46 O.R. (3d) 63 (ONCA), para. 31 and Desbiens v. Mordini, 2004 CanLII 41166 (ON SC), [2004] O.J. No. 4735, paras. 273-274, I ruled Dr. Bail could not be cross-examined as to these prior court determinations rejecting his testimony and role as an expert witness in those cases.
...
[120] Dr. Bail includes reference in his report to the plaintiff reporting back pain in July 2008, as showing she had the same prior complaint and not admitting that to him in regards to this MVA. He admitted in cross-examination that this reference omits her doctor’s then notation that it was “diagnosis of pregnancy related back pain”, which is obviously different from post-MVA, non-pregnancy related back pain.
[121] Dr. Bail in his report refers to a clinical notation on July 12, 2008 of “complains of intermittent back pain.” He admitted in cross-examination that the plaintiff at that time was in labor. That added detail is not mentioned in his report.
[122] Dr. Bail was not a credible witness. He failed to honor his obligation and written undertaking to be fair, objective and non-partisan pursuant to R. 4.1.01. He did not meet the requirements under R. 53.03. The 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 and the common initial presumption that a member of the medical profession will be objective and tell the truth.
[123] The vast majority of Dr. Bail’s testimony to the jury amounted to nothing other than the following:
(a) The plaintiff did not tell me the truth in my interview;
(b) Here are all the instances I found in my 10 to 12 hour review of her medical records which prove that she did not tell me the truth;
(c) If I as a psychiatrist cannot believe her; how can you?
[124] The primary purpose of R. 4.1.01 is to prohibit and prevent such testimony in the guise of an expert. Dr. Bail undertook and thereby promised to not do what he did in front of this jury.
[125] I will not qualify witnesses as experts in the future whose reports present an approach similar to that of Dr. Bail in this case.
...
Credibility[144] 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.
Jury Verdict[145] I reach the above conclusions notwithstanding the decisions made by the jury in this trial.
[146] The jury awarded nominal general damages to the plaintiff of $23,500 and dismissed all of the other claims.
[147] I cannot speculate on what basis the jury reached their decisions. The jury’s assessment of the testimony of Dr. Bail and Dr. Maistrelli is and will remain unknown.
Conclusion[148] For the above reasons, I conclude the plaintiff’s claim for general damages met these requirements under the Insurance Act. The defendant’s threshold motion is therefore dismissed. [Kane J. Jan 5 2016]
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December 2016: Dr. Platnick v. Bent, 2016 ONSC 7340 CanLII where the underlying cause for libel action by Dr. Platnik relates to how he conducted his defence medical assessments and reports, and how he has lost much of his medical legal assessment business. The courts' reliance on expert evidence should be examined and this time in civil cases, as previously done in criminal context.
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January 2017: Hamilton v. Bluewater Recycling Association, 2016 ONCA 805, November 3, 2016. The CA continues to permit expert evidence on the ultimate issue, citing among other things, Mohan SCC. But Mohan was decided in 1996 and which has increased the scope of expert evidence, without regard to the issue of costs (or associated delay with expert evidence) in the trial process. It was in criminal context, application to tort context may not be automatic but it is (Hoang v. Vinciniti ONCA). The runaway expert train can be stopped in a similar way as the SCC stopped the ONCA reliance on the appreciation of a "full-trial" in Hryniak (2014 SCC) where access to justice has become so inaccessible that the SCC brought in a summary judgment regime that reduces reliance on the full trial. Therefore, the SCC should reconsider, at least in the civil context (though the criminal context has given to inordinate delay as illustrated by Jordan SCC 2016) the ban on experts being permitted to wage their black magic credentials to unsuspected juries, and opine on the ultimate issue, and to be judge jury and executioner at once. "Have opinions, will travel" is the modus operandi of current day experts:
Other grounds of appeal
[19] The appellants submit that opinion evidence was improperly adduced by defence counsel during cross-examination of the appellants’ two expert witnesses, Travis Fricker, an accident reconstruction expert, and Dr. Christina Rudin-Brown, a human factors expert. The appellants say that these witnesses answered questions concerning their opinion as to the cause of the accident that were unrelated to their expertise and went directly to the ultimate issue for the jury. The appellants submit that there is a risk that the jury was “overwhelmed” by inadmissible opinion evidence.
[20] We disagree.
[21] First, there is no longer a general prohibition on the admission of expert evidence concerning the ultimate issue: see R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at p. 24; R. v. Lucas, 2014 ONCA 561 (CanLII), 121 O.R. (3d) 303, leave to appeal refused, [2014] S.C.C.A. No. 460, at para. 271; Hoang v. Vicentini, 2016 ONCA 723 (CanLII), at para. 62 [below].
[22] The appellants point to Fricker’s concessions on cross-examination that in an “ideal world” Hamilton would have waited, and that it would be more prudent to stop for any potential thing that could happen. But Fricker made clear that he was not in a position to judge what the average driver would do. Fricker’s evidence was tentative at best, and cannot be said to have been outside his expertise.
[23] Dr. Rudin-Brown assessed “human factors”, including the conspicuity of the left turn signal on the recycling truck and motorcyclist inexperience. She opined – based on the facts of the case and on her knowledge of human factors issues and road safety – that Hamilton reacted to the unfolding situation in a manner that was appropriate for the conditions that were present at the time and that his behaviour was entirely reasonable.
[24] Dr. Rudin-Brown had testified that the other flashing lights on the recycling truck might reasonably have contributed to any misinterpretation by Hamilton of the left turn signal. In cross-examination, defence counsel probed the assumptions underlying Dr. Rudin-Brown’s opinion that Hamilton reacted in a manner that was appropriate, leading to one of the answers with which the appellant takes issue:
Q. What if there was a left turn signal, because you know it’s a very significant issue in this case. If the left turn signal was activated and [Hamilton] made that move within a few car lengths of the intersection with the [Roth van] to the left, basically at the edge of the asphalt and a very large recycling truck with a left turn signal, you would agree that that would have been completely inappropriate behaviour?
A. It was appropriate.
Q: It was?
A: It was appropriate to Mr. Hamilton.
Q. Even with a left-turn signal?
A: If he saw the left turn signal and understood what it indicated, yes, that would be.
[25] Although the answer to the last question is ambiguous, this line of questions follows on from Dr. Rudin-Brown’s opinion and cannot be said to be unrelated to her expertise.
[26] The appellants also complain about an exchange in which Dr. Rudin-Brown appears to agree with defence counsel’s suggestion that Hamilton’s actions were those of an inexperienced motorcycle driver. (Although Hamilton was an experienced car driver, he had only been riding a motorcycle for a few weeks at the time of the accident.) Dr. Rudin-Brown assessed Hamilton’s motorcycle experience in arriving at her opinion. Her answer that his actions “could be interpreted that way” cannot be said to have been outside her expertise and, in any event, was ambiguous.
[27] Finally, the appellants challenge Dr. Rudin-Brown’s agreement with defence counsel’s suggestion that it would be prudent for a driver to keep even farther back than usual from a very large truck with many lights.
[28] This appears to be a common sense proposition that does not necessarily require expert evidence. However, no objection was taken to this line of questioning at trial.
//
Hoang v. Vicentini ONCA decision reads in part:
III. OPINION EVIDENCE ON THE "ULTIMATE ISSUE"
A. Statement of the issue
[58] At trial, Vicentini called Dr. Marc Green as a human factors expert who gave opinion evidence on Vicentini’s perception-reaction time – i.e., how long it would take Vicentini to perceive Christopher as a hazard and react to the hazard by braking or steering. The appellants did not oppose Green’s qualification as an expert entitled to express an opinion in the area of human factors.
[59] On this appeal, the appellants submit the trial judge erred by permitting Vicentini to lead evidence from Green that (i) the cause of the accident was Christopher darting out into traffic, and (ii) Vicentini had no chance to avoid the collision. The appellants argue such opinion evidence went beyond the area in which Green was qualified to testify and, as well, amounted to impermissible opinions on the ultimate issue the jury was required to decide.
[60] Vicentini submits the trial judge made no error because (i) the appellants had elicited similar evidence from their own accident reconstruction expert, Hrycay, and (ii) appellants’ trial counsel raised no objection to Green’s evidence.
B. Analysis
[61] I would accept Vicentini’s submissions.
[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.
[63] Second, an appellant cannot ask for a new civil trial as of right on the ground of the inadmissibility of evidence when no objection was made in respect of the matter at trial and no substantial wrong or miscarriage was occasioned: G.K. v. D.K. (1999), 1999 CanLII 935 (ON CA), 122 O.A.C. 36 (C.A.), at para. 17. In the present case, the appellants did not object at trial to the evidence from Green they now contend was inadmissible and, as noted, they elicited from their own expert evidence about whether the accident was avoidable. Moreover, in her charge to the jury, the trial judge summarized the competing opinions of Green and Hrycay on the cause of the accident, and her reference to that evidence did not prompt an objection by appellants’ trial counsel. The trial judge also properly instructed the jury on the use they could make of the expert evidence. Accordingly, in those circumstances, I would not give effect to this ground of appeal.
[Question: how do trial lawyers and trial judges know which question and which answer is common sense and which is not, when, even here, the CA can't even be sure: "This appears to be"? This is an intractable problem because even the routine legal issue of what is the proper standard of review on appeal is still unsettled after these decades at the SCC: see for example Ledcor SCC 2016 having to modify Sattva SCC of only 2 years prior 2014]
May 6, 2020:
GOING FORWARD, PLEASE CONSULT OTHER UNDERLYING ANALYSIS ON THE WEBPAGE "IMPROPER EXPERT EVIDENCE" TO INFORM ANY TEST CASE.
June 2017:
A recent case of the Ontario CA reviews this topic and close study is required: Bruff-Murphy v. Gunawardena, 2017 ONCA 502 (CanLII):
(2) The Trial Judge’s Gatekeeper Role with Respect to Expert Opinion Evidence
(1) Qualification Stage
[33] Ms. Bruff-McArthur submits that the trial judge should have exercised his gatekeeper function to exclude Dr. Bail from testifying on the grounds that his methodology was unfair; he was biased; he was engaged in an exercise to destroy her credibility; and his prospective evidence would amount to a violation of the rule in Browne v. Dunn. In the alternative, she argues that the trial judge erred in not instructing the jury that they should disregard Dr. Bail’s testimony.
[34] In White Burgess, a decision released shortly before the judgment under appeal, the Supreme Court of Canada provided clarity and guidance regarding challenges to experts on the basis of bias and lack of independence. Cromwell J., writing for the court, stated at para. 19 that the basic structure for the law relating to the admissibility of expert evidence has two main components.
[35] The first component requires the court to consider the four traditional “threshold requirements” for the admissibility of the evidence established in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9: (i) relevance; (ii) necessity in assisting the trier of fact; (iii) absence of an exclusionary rule; and (iv) the need for the expert to be properly qualified.
[36] The second component is a “discretionary gatekeeping step” where “the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks”: para. 24. It is a cost-benefit analysis under which the court must determine whether the expert evidence should be admitted because its probative value outweighs its prejudicial effect.
[37] The analysis under the second component is best thought of as a specific application of the court’s general residual discretion to exclude evidence whose prejudicial effect exceeds its probative value: R. v. Bingley, 2017 SCC 12 (CanLII), 407 D.L.R. (4th) 384, at para. 16. As Charron J.A. wrote in R. v. K. (A.) (1999), 1999 CanLII 3793 (ON CA), 45 O.R. (3d) 641 (C.A.), at para. 76, application for leave quashed, [2000] S.C.C.A. No. 16: “The balancing process which lies at the core of the determination of the admissibility of this kind of evidence is not unique to expert opinion evidence. It essentially underlies all our rules of evidence.” In White Burgess, Cromwell J. referenced Mohan and made the same point at paras. 19 and 20:
Mohan also underlined the important role of trial judges in assessing whether otherwise admissible expert evidence should be excluded because its probative value was overborne by its prejudicial effect — a residual discretion to exclude evidence based on a cost-benefit analysis: p. 21.
…
The reasons in Mohan engaged in a cost-benefit analysis with respect to particular elements of the four threshold requirements, but they also noted that the cost-benefit analysis could be an aspect of exercising the overall discretion to exclude evidence whose probative value does not justify its admission in light of its potentially prejudicial effects: p. 21.
[38] Cromwell J. further explained that lack of independence or impartiality on the part of an expert witness goes to the admissibility of the witness’s testimony, not just to its weight: para. 40. Specifically, in the governing framework for admissibility, the court should consider an expert’s potential bias when determining whether the expert is properly qualified at the initial threshold inquiry: para. 53.
[39] However, he added that bias should also be considered when the court exercises its gatekeeping exclusionary discretion, writing at para. 54:
Finding that expert evidence meets the basic threshold does not end the inquiry. Consistent with the structure of the analysis developed following Mohan which I have discussed earlier, the judge must still take concerns about the expert’s independence and impartiality into account in weighing the evidence at the gatekeeping stage. At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence. At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence. [Emphasis added.]
In the overview of his discussion of the admissibility of expert opinion evidence, he instructed at para. 34 that:
[A] proposed expert’s independence and impartiality go to admissibility and not simply to weight and there is a threshold admissibility requirement in relation to this duty. Once that threshold is met, remaining concerns about the expert’s compliance with his or her duty should be considered as part of the overall cost-benefit analysis which the judge conducts to carry out his or her gatekeeping role. [Emphasis added.]
[40] In the present case, the trial judge cited White Burgess and appears to have relied upon Cromwell J.’s statement that in the threshold inquiry it would be quite rare for a proposed expert’s evidence to be ruled inadmissible. As Cromwell J. noted at para. 49, all that needs to be established at that stage is whether the expert is “able and willing to carry out his or her primary duty to the court.” The trial judge concluded that Dr. Bail met this rather low threshold requirement.
[41] That was a discretionary decision, which is entitled to deference from this court: R. v. Shafia, 2016 ONCA 812 (CanLII), 341 C.C.C. (3d) 354, at para. 248. Another judge might well have concluded that Dr. Bail failed to meet even this low threshold test. I do not need to decide whether the trial judge erred on this point, however, because he clearly erred in principle in failing to proceed to the next step of the analysis – consideration of the cost-benefit analysis in Dr. Bail’s testimony. The trial judge did not reference this second component of his discretionary gatekeeper role. To the contrary, he appears to have believed that he was obliged to qualify Dr. Bail once he concluded that the witness met the initial Mohan threshold. There is, therefore, no decision to defer to and it falls to this court to conduct the second part of the analysis.
[42] In my view, on a proper balancing, the potential risks of admitting Dr. Bail’s evidence far outweighed the potential benefit of the testimony. It was evident from a review of Dr. Bail’s report that there was a high probability that he would prove to be a troublesome expert witness, one who was intent on advocating for the defence and unwilling to properly fulfill his duties to the court.
[43] The first red flag was Dr. Bail’s methodology. There is a real risk of unfairness in engaging in a hunt for discrepancies between what a plaintiff says during a short interview and what medical records dating back several years reveal. This unfairness is exacerbated when the expert denies the plaintiff the opportunity to explain the apparent discrepancies. As anyone with the slightest experience with litigation would attest to, oftentimes what appears to be an inconsistency in witness’s evidence is not an inconsistency at all. Oftentimes all that is required is a simple explanation to resolve what appears to be a conflict in what a witness said on two different occasions. Ms. Bruff-McArthur was not given an opportunity to offer such an explanation.
[44] A related concern is that the vast bulk of the content in Dr. Bail’s report was the recitation of perceived inconsistencies between what Ms. Bruff-McArthur said in the independent medical examination and what the medical records revealed. In conducting that analysis, Dr. Bail was not bringing to bear any medical expertise. This was work that is routinely done by trial lawyers and law students or clerks in preparation for a cross-examination. Thus, the benefit of the evidence was very low, while the potential mischief was very high, especially given that none of these inconsistencies were put to Ms. Bruff-McArthur.
[45] It was also clear from the report that Dr. Bail was coming dangerously close to usurping the role of the jury in assessing Ms. Bruff-McArthur’s credibility. In the “Summary and Conclusions” section of his report he opines:
It is my opinion that if Ms. Bruff-McArthur was being forthright, this pattern of discrepancies and inconsistencies should not exist. I am therefore of the opinion that Ms. Bruff-McArthur has not been forthright with respect to her accident related claims and her provided medical and psychological history, and that the history which she has been providing over time since the accident cannot be relied upon. It is evident that Ms. Bruff-McArthur has serious credibility issues regarding her accident related claims.
In the penultimate paragraph of his report, he states: “lack of reliability, credibility and validity are factors in this case.”
[46] Next, the whole tone of the report was a reliable predictor of Dr. Bail’s testimony. He goes out of his way to make points that are meant to damage Ms. Bruff-McArthur’s case. For example, he opines on the views of several physicians who examined Ms. Bruff-McArthur, concluding that she misled them. Dr. Bail speculates that one of her therapists may have been improperly holding herself out as a qualified psychologist. He criticizes a psychiatrist who treated Ms. Bruff-McArthur, Dr. Arora, because they discussed “personal family things, such as her daughters’ potty training and her son’s school problems” when “psychotherapy was requested and paid solely in relation to treating accident related claims.” Dr. Bail notes that Ms. Bruff-McArthur and Dr. Arora discussed the notions of karma and reincarnation. He chastises Dr. Arora for introducing personal religious beliefs in a therapy session. I note that there is no evidence that these topics reflect Dr. Arora’s personal beliefs.
[47] I could go on with further examples, but the point is that in his report Dr. Bail goes beyond a mere lack of independence and appears to have adopted the role of advocate for the defence. Given the paucity of psychiatric analysis in the report versus the high degree of potential prejudice in wrongly swaying the jury, a cost-benefit analysis would have invariably lead to the conclusion that Dr. Bail should have been excluded from testifying.
[48] To be fair to the trial judge, he attempted to ameliorate these concerns by specifically instructing the witness not to testify regarding certain issues, such as his criticism of other doctors. However, as the trial judge essentially acknowledged in his Threshold Motion ruling, had he undertaken the cost-benefit analysis he would not have permitted Dr. Bail to testify.
(2) During the Expert’s Testimony
[49] As we know, the trial judge permitted Dr. Bail to testify and determined that Dr. Bail crossed the line of acceptable expert evidence. In order to analyze his response to this situation, it is first necessary to consider whether the trial judge’s concerns regarding Dr. Bail’s testimony were well founded. Assuming that they were, the next issue is what the trial judge should have done in the circumstances.
(1) Did Dr. Bail’s Testimony Indicate Lack of Impartiality?[50] I have had the opportunity to consider in detail Dr. Bail’s evidence and I concur with the trial judge that it is most troubling. For present purposes, it is unnecessary to recount his testimony in full. Instead, I will focus on some of the more concerning aspects of his testimony.
[51] First, I repeat my concern regarding his methodology. It was fundamentally unfair to Ms. Bruff-McArthur not to give her an opportunity to explain the alleged inconsistencies in the information she provided. As mentioned above, there is a real concern that Dr. Bail was usurping the role of the trier of fact in determining the issue of Ms. Bruff-McArthur’s credibility. Despite that concern, I am willing to acknowledge that in a case such as this, where the existence and extent of the alleged injuries are not easily determined, consideration of the plaintiff’s veracity is a necessary part of an independent medical examination. However, if Dr. Bail were serious about probing this issue, he would not have adopted this methodology. He would have reviewed the inconsistencies with Ms. Bruff-McArthur.
[52] Second, and equally troubling, is that to the extent that Dr. Bail referred to the scientific testing conducted, he torqued the results so that they produced results that supported his conclusion. For example, he testified that Ms. Bruff-McArthur was administered a test where she was instructed to count backwards from 100 by 7s. He noted that she provided a few incorrect answers in her count. Dr. Bail considered this to be an inconsistency because she was able to get some of the count right but also made mistakes. For Dr. Bail, inconsistencies meant that the subject was not being truthful about her condition.
[53] Dr. Bail then testified that in cases where a subject mathematically “just doesn’t have it together,” he asks them to recite the months of the year in reverse order. Apparently, Ms. Bruff-McArthur did very well on this test, answering correctly and quickly. Dr. Bail testified that that this result was also an inconsistency because she did so well on that test and so poorly on the 7s test. So, despite the fact that Dr. Bail testified that he administers the month test as a check for those who are not mathematically inclined, he calls into question her credibility for doing well on the month test and faring poorly on the 7s test.
[54] Dr. Bail went on to administer another mathematical test, requiring her to calculate how many $1.50 magazines could be purchased with $10. Ms. Bruff-McArthur did not do well on this test and Dr. Bail considered this to be an inconsistency. The other logical conclusion, that Ms. Bruff-McArthur was consistently weak in performing math exercises, seems not to have crossed his mind.
[55] In short, the tests were deliberately interpreted to fit a theory of mendacity. Unless she got every question on every test correct, she was inconsistent and, in Dr. Bail’s opinion, inconsistency equated to an untruthful subject.
[56] A third concern relates to a subtle point that demonstrates Dr. Bail’s fundamental misconception of his role. He questioned Ms. Bruff-McArthur regarding her physical limitations. It is, of course, perfectly appropriate for a psychiatrist conducting an independent medical examination to ask questions about a subject’s physical injuries and resultant limitations. That information could provide useful context for the examination. However, Dr. Bail was quite open about the fact that he asked the questions for an entirely different purpose. He testified that he asked about physical limitations so that he could compare those answers to any future surveillance evidence he may receive. This is consistent with how Dr. Bail regarded the purpose of his review of the medical records. There is a troubling pattern that suggests that he understands his primary role to be to expose inconsistencies and not to provide a truly independent assessment of Ms. Bruff-McArthur’s psychiatric condition.
[57] Fourth, when Dr. Bail was cross-examined about his emphasis on perceived inconsistencies, he denied ignoring those parts of the medial records that did not fit his diagnosis. He explained their absence from his report on the basis that “you can’t put everything in your report.” Later in his cross-examination, Dr. Bail stated, “I’m interested in the things that don’t corroborate, not the things that do corroborate.” Again, this testimony makes plain Dr. Bail’s lack of awareness of the need to be impartial as an expert witness.
[58] Before turning to what the trial judge should have done in face of this testimony, I wish to correct one of his findings. The trial judge stated in his reasons on the Threshold Motion that Dr. Bail did not have any notes of his examination of Ms. Bruff-McArthur. Based on this observation, he concluded that Dr. Bail was making his testimony up as he went along to support his position.
[59] That is not accurate. Dr. Bail did have notes. Indeed, the trial judge ruled that he could refer to them as he testified. It is not a fair conclusion that Dr. Bail was making up his testimony. Having reviewed his evidence carefully, I am of the view that there is no basis to conclude that Dr. Bail was anything but truthful in his testimony. I have concerns regarding Dr. Bail’s independence and his methodology; I do not have any concerns about his veracity.
(2) What Should the Trial Judge Have Done in this Case?[60] Under the White Burgess framework, and in most other leading cases on the admissibility of expert evidence, the issue of admissibility is decided at the time the evidence is proffered and the expert witness’s qualification is requested by a party. To the extent that this is possible, it should be the norm: R. v. J.-L.J., 2000 SCC 51 (CanLII), [2000] 2 S.C.R. 600, at para. 28.
[61] In the present case, however, the trial judge appears to have assumed that, once Dr. Bail was qualified as an expert, his gatekeeper role was at an end. The trial judge erred in law in reaching that conclusion.
[62] A trial judge in a civil jury case qualifying an expert has a difficult task. She must make a decision based on an expert report that will, in most cases, never be seen by the jury. While the report provides a roadmap of the anticipated testimony and specific limits may be placed on certain areas of testimony, the trial judge obviously cannot predict with certainty the nature or content of the expert’s testimony.
[63] Where, as here, the expert’s eventual testimony removes any doubt about her independence, the trial judge must not act as if she were functus. The trial judge must continue to exercise her gatekeeper function. After all, the concerns about the impact of a non-independent expert witness on the jury have not been eliminated. To the contrary, they have come to fruition. At that stage, when the trial judge recognizes the acute risk to trial fairness, she must take action.
[64] Charron J.A. made this point in K. (A.), writing as follows at para. 73:
In some cases it may be possible to rule on the admissibility of the proposed evidence on the basis of counsel’s submissions alone. However it may at times prove necessary to hold a voir dire in order to properly consider all relevant factors. Where the trial is before a jury and the question of admissibility cannot be clearly determined in a summary fashion, it may indeed be prudent to scrutinize the evidence during the course of a voir dire before admitting it. While in some cases the ruling can be made early in the proceedings, in other cases, it may be only later in the trial that the value of the proposed evidence can be properly assessed. For example, in this case, it was only after the main Crown witnesses had testified and the defence strategy became apparent that the determination of the admissibility of the expert evidence could properly be made. [Emphasis added and footnote omitted.]
And in a later decision in R. v. Ranger (2003), 2003 CanLII 32900 (ON CA), 67 O.R. (3d) 1 (C.A.), at para. 63, Charron J.A. stated:
[The dangers of expert opinion evidence] must be considered in the balancing process that forms part of the test for admissibility. Further, the trial judge’s gatekeeper function does not end with the ruling on admissibility. The expert evidence must be carefully constrained in its presentation with a view to minimizing the associated dangers so that, in the end result, the judge is still satisfied that the probative value of the evidence exceeds its prejudicial effect and is properly admissible. [Emphasis added.]
[65] As mentioned above, the cost-benefit analysis under the second component of the framework for admitting expert evidence is a specific application of the court’s general residual discretion to exclude evidence whose prejudicial effect is greater than its probative value. This general residual discretion is always available to the court, not just when determining whether to admit an item of evidence, but after the admission stage if the evidence’s prejudicial effect is only revealed in the course of its presentation to the trier of fact.
[66] An instructive discussion is found in R. v. White, 2011 SCC 13 (CanLII), [2011] 1 S.C.R. 433, a case that dealt with the admissibility of post-offence conduct in criminal matters. A majority of the Supreme Court stated at para. 50:
Otherwise admissible evidence may still be removed from consideration by the jury on the basis that it is more prejudicial than probative. This may be achieved by refusing to admit the evidence at trial. It can also happen that the disproportionately prejudicial nature of a certain item of evidence only becomes apparent in light of the evidence as a whole. The trial judge may then instruct the jury in his charge that they may not consider a certain item of evidence in their deliberations. [Emphasis added.]
The discussion from White makes clear that the court’s residual discretion to exclude prejudicial evidence is an ongoing one that continues throughout a trial. It may be invoked if prejudice manifests after initially admitting the evidence. Thus, because the second component of the framework for admitting expert evidence is an application of this residual discretion, the court has residual discretion to exclude expert evidence even after admitting it, if later in the trial prejudice emerges that was not apparent at the time of admission.
[67] Given this ongoing gatekeeper discretion, the question remains of what, as a practical matter, the trial judge could or should have done in this case. His first option would have been to advise counsel that he was going to give either a mid-trial or final instruction that Dr. Bail’s testimony would be excluded in whole or in part from the evidence. Had he taken that route, he would have received submissions from counsel in the absence of the jury and proceeded as he saw fit. Alternately, he could have asked for submissions from counsel on a mistrial, again in the absence of the jury, and ruled accordingly. In the event that he had to interrupt Dr. Bail’s testimony mid-trial, he would have had to consider carefully how best to minimize the potential prejudicial effect of the interruption from the respondent’s perspective.
[68] The point is that the trial judge was not powerless and should have taken action. The dangers of admitting expert evidence suggest a need for a trial judge to exercise prudence in excluding the testimony of an expert who lacks impartiality before those dangers manifest.
[69] I am mindful that counsel for Ms. Bruff-McArthur did not seek an instruction regarding Dr. Bail’s evidence. The law is generally that the failure to object to a civil jury charge is fatal to a request for a re-trial on appeal based on misdirection or non-direction. However, this rule is subject to the exception that where the misdirection or non-direction resulted in a substantial wrong or miscarriage of justice, it may warrant a new trial: Pietkewicz v. Sault Ste. Marie District Roman Catholic Separate School Board (2004), 71 O.R. (3d) 83 (C.A.), at paras. 22-28; and Briscoe Estate v. Canadian Premiere Life Insurance Co., 2012 ONCA 854 (CanLII), 113 O.R. (3d) 161, at paras. 70-71. In my view, the admission of Dr. Bail’s testimony resulted in a miscarriage of justice.
[70] I would go further and state that, given the importance of a trial judge’s on-going gatekeeper role, the absence of an objection or the lack of a request for a specific instruction does not impair a trial judge’s ability to exercise her residual discretion to exclude evidence whose probative value is outweighed by its prejudicial effect.
[71] The respondent submits that even if this court concludes that Dr. Bail’s testimony should have been excluded, there is no basis to order a new trial because he was just one of many witnesses and his testimony likely did not have a significant impact on the jury’s verdict.
[72] It is impossible to gauge with any certainty the impact of Dr. Bail’s testimony. The fact that he was one of only two witnesses to testify for the defence suggests that his testimony may well have been an important factor in the jury’s analysis of the case. In any event, a focus on the inability to measure the precise prejudice caused by the testimony misses the point entirely, which is that there has been a miscarriage of justice in this case. This court has a responsibility to protect the integrity of the justice system. This is not a “no harm, no foul” situation. No doubt, another trial will be costly and time consuming, but it is necessary because the defence proffered the evidence of a wholly unsuitable expert witness.
June 2017:
A challenge under LAT Rules may be brought as a motion, on notice, returnable at the hearing or an earlier date with at least 10 days notice and materials are set out under the Rules. An example of notice given in a Case Conference Summary Form might be as follows:
List of expert witnesses to provide opinion evidence and the issue each expert will address:
1. Dr. A. B., insurer examiner, orthopaedic surgeon, to be cross-examined. The claimant intends to challenge, under Rule 10.4 of the LAT Rules, the admissibility of his expert evidence and reports. The reasons are, subject to further advice by counsel or as permitted by the Tribunal:
(a) he did not have any reasonable apprehension of the essential tasks involved in the occupation of the claimant;
(b) he has no proper education, training or experience in the assessment of how impairments may become requisite disability for the claimant;
(c) he has no proper education, training or experience on the aspects of law that are involved on the issue of legal causation inherent in the question of mixed law and fact, namely of whether or not the claimant meets the test of disability as a result of the accident;
(The issue of legal causation continues to be unsettled and convoluted even for the legal profession, as evidenced by relatively frequent Supreme Court pronouncements.[1] How and when is a physician trained in the relevant law including legal causation and the meaning of the civil standard of proof of balance of probabilities – as opposed to medical or scientific certainty?)
(d) to the extent that his evidence relies on an assessment of credibility of the claimant, such assessment of credibility and all related evidence which is based on such credibility assessment be excluded, because the assessment of credibility is within the ordinary knowledge or ability of the trier of fact. His assessment of credibility is therefore not necessary to assist the trier of fact.
[1] Athey v. Leonati, [1996] 3 S.C.R. 458; Resurfice Corp. v. Hanke, 2007 SCC 7; Clements v. Clements, 2012 SCC 32.
May 2017:
In a test motion, some hurdles to be considered:
First, certain expert evidence seems to be legislated with regard to the verbal threshold for pain and suffering in auto cases.
Second, the SABS schedule incorporates numerous assessments by certain medical personnel, and in practice, these assessments are accepted without challenge as expert evidence.
One possible path to disqualify such expert evidence is the concept of administrative vs. adjudicative (further research to examine whether this concept may or may not relate or contradict these labels in Supreme Court jurisprudence on jurisdiction and control of administrative vs. adjudicative tribunals).
The function of a doctor's note to postpone a school test or exam should attract a lower standard of vigilance, given proportionality and practical goals or concerns (abuse, simplicity, speed, and ultimately fairness on a dime). The functions of an insurer examination under the SABS serves similarly to doctors' notes, but before they may enter adjudication of serious disputes in injury cases which may impact the lives of victims and their families in a serious way, they must be re-examined for proper admissibility.
March 2017:
A reminder from the Supreme Court of Canada, as cited in Hoang v. Vicentini, 2012 ONSC 1066 CanLII by Wilson J.:
[12] In recent times, judges have been cautioned about their role as a gatekeeper at trials. Justice Stephen Goudge in his report “Inquiry into Pediatric Pathology in Ontario” [the “Goudge Report”][3] emphasized the need for trial judges to be vigilant when admitting expert testimony, to scrutinize the necessity and validity of a proposed expert’s testimony before determining if it ought to be admitted. This is not a new concept as it has always been the function of the trial judge to determine the admissibility of evidence. The Supreme Court of Canada has said[4], “…The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties can go at the end of the day to weight rather than admissibility…”
[4] R. v. J.-L.J. 2000 SCC 51 (CanLII), [2000] 2 S.C.R. 600
March 2017:
Reference should be had to the discussion under the "improper expert evidence" webpage of this site for some related aspects to this test case webpage.
It appears that the License Appeal Tribunal may be a better forum to test this motion for reasons which may include the fact that it is a different tribunal than Courts and is not bound to follow all the reasons and practices of a complex civil system. Its home statute and enabling goals should include drastic expediency which by definition sacrifices some "safeguards" that have become untenable due to costs and delay. In other words, its admission of expert evidence should be arguably distinguishable from Hoang above. Furthermore, LAT rules in fact allow for advance notice of challenging admissibility of expert evidence. LAT therefore may be a better vehicle, embedded in a tribunal created expressly for expediency for accident benefits disputes, to conduct this test case - rather than to test it in the ultra conservative [see e.g. Hryniak ONCA that insisted on full trials and had to be reversed later by the SCC] and unduly complex and excessively expensive forum of the Ontario Superior Court.
Update March 2016:
Inaccessibility of civil and family justice in Canada has been recognized as one of the greatest challenges to the Candian justice systems today (Hryniak, SCC). But the excesses from unbridled complexity and costs associated with expert evidence continue to grow, unabated despite recent rule amendments in Ontario, with little prospects to control them in the coming years.
It may take a landmark test case initiated by a plaintiff injury lawyer which successfully challenges admissibility of expert evidence on key aspects of injury law evidence, discussed below, to help reel in the expert train. An motion before trial may be necessary in order to know the parameters to prepare for trial. If you are considering to go in the arena on this issue, we hope our thoughts below may be of service.
Below is an article first published in the Lawyers Weekly on November 6, 2015. [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 April 2016: A sad tale to tell, although we must refrain from commenting about whether justice was done in the following case, after the fact. What is sad is the logic in the procedures of our courts does not appear to be sufficiently nimble or responsive to the on-going problems at hand. Among other things, there is hardly anyone leading on the issue in the legal profession bar and bench included, there is no leading institution with "the buck stops here" accountability for prevention and excellence.
Following a denial to permit cross examination of Dr. Bail on his prior adverse comments in Bruff-Murphy v. Gunawardena, 2016 ONSC 7, the sitting trial judge might have had second thoughts about his decision, for the future, as it appears from paragraph 125 that he "will not qualify witnesses as experts in the future whose reports present an approach similar to that of Dr. Bail in this case." In this case, the plaintiff lost the case.
In the injury bar in Ontario at least, Dr. Bail is well-known for reasons which related to Riverfront a medical assessment outfit which had adverse history in the jurisprudence. The problems fairly said are on both sides of the aisle. Dr. Bail here is allowed to ventured into credibility of witnesses, and as such, at last, a never ending fountain of disputes, and of medical-legal work, let alone expert-induced wrongful civil verdicts.
Dr. M. Bail
Qualifications As Expert Witness
[53] Unlike Dr. Maistrelli and numerous medical doctors and experts called by the plaintiff, Dr. Bail is of the belief that the plaintiff is faking and is not credible in her description of her injuries and incapacity as a result of the MVA.
[54] The plaintiff during the trial sought to prevent Dr. Bail from testifying as an expert on the basis of bias as evidenced in his expert’s report and several reported decisions which held that Dr. Bail had:
(a) Become an advocate for the party calling him as a witness which is not the role of an expert: Morrison v. Greig, 2007 CarswellOnt 343; [2007] O.J. No. 225 (ONSC) paras. 47-48.
(b) Appropriated the role of advocate of the insurer rather than an impartial witness. His partisan approach and focus on inconsistencies are troubling, seriously weaken his credibility and weight of his testimony which should be disregarded: Gabremichael v. Zurich Insurance Co., [1999] O.F.S.C.I.D. No. 198, paras. 31-33.
(c) Presented as a notably partisan witness: Sohi v. ING Insurance Co. of Canada, [2004] O.F.S.C.D. No. 106, para. 38.
[55] On the authority of R. v. Karaibrahimovic, 2002 ABCA 102 (CanLII) paras. 7-8; R. v. Ghorvei (1999), 1999 CanLII 19941 (ON CA), 46 O.R. (3d) 63 (ONCA), para. 31 and Desbiens v. Mordini, 2004 CanLII 41166 (ON SC), [2004] O.J. No. 4735, paras. 273-274, I ruled Dr. Bail could not be cross-examined as to these prior court determinations rejecting his testimony and role as an expert witness in those cases.
...
[120] Dr. Bail includes reference in his report to the plaintiff reporting back pain in July 2008, as showing she had the same prior complaint and not admitting that to him in regards to this MVA. He admitted in cross-examination that this reference omits her doctor’s then notation that it was “diagnosis of pregnancy related back pain”, which is obviously different from post-MVA, non-pregnancy related back pain.
[121] Dr. Bail in his report refers to a clinical notation on July 12, 2008 of “complains of intermittent back pain.” He admitted in cross-examination that the plaintiff at that time was in labor. That added detail is not mentioned in his report.
[122] Dr. Bail was not a credible witness. He failed to honor his obligation and written undertaking to be fair, objective and non-partisan pursuant to R. 4.1.01. He did not meet the requirements under R. 53.03. The 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 and the common initial presumption that a member of the medical profession will be objective and tell the truth.
[123] The vast majority of Dr. Bail’s testimony to the jury amounted to nothing other than the following:
(a) The plaintiff did not tell me the truth in my interview;
(b) Here are all the instances I found in my 10 to 12 hour review of her medical records which prove that she did not tell me the truth;
(c) If I as a psychiatrist cannot believe her; how can you?
[124] The primary purpose of R. 4.1.01 is to prohibit and prevent such testimony in the guise of an expert. Dr. Bail undertook and thereby promised to not do what he did in front of this jury.
[125] I will not qualify witnesses as experts in the future whose reports present an approach similar to that of Dr. Bail in this case.
...
Credibility[144] 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.
Jury Verdict[145] I reach the above conclusions notwithstanding the decisions made by the jury in this trial.
[146] The jury awarded nominal general damages to the plaintiff of $23,500 and dismissed all of the other claims.
[147] I cannot speculate on what basis the jury reached their decisions. The jury’s assessment of the testimony of Dr. Bail and Dr. Maistrelli is and will remain unknown.
Conclusion[148] For the above reasons, I conclude the plaintiff’s claim for general damages met these requirements under the Insurance Act. The defendant’s threshold motion is therefore dismissed. [Kane J. Jan 5 2016]
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December 2016: Dr. Platnick v. Bent, 2016 ONSC 7340 CanLII where the underlying cause for libel action by Dr. Platnik relates to how he conducted his defence medical assessments and reports, and how he has lost much of his medical legal assessment business. The courts' reliance on expert evidence should be examined and this time in civil cases, as previously done in criminal context.
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January 2017: Hamilton v. Bluewater Recycling Association, 2016 ONCA 805, November 3, 2016. The CA continues to permit expert evidence on the ultimate issue, citing among other things, Mohan SCC. But Mohan was decided in 1996 and which has increased the scope of expert evidence, without regard to the issue of costs (or associated delay with expert evidence) in the trial process. It was in criminal context, application to tort context may not be automatic but it is (Hoang v. Vinciniti ONCA). The runaway expert train can be stopped in a similar way as the SCC stopped the ONCA reliance on the appreciation of a "full-trial" in Hryniak (2014 SCC) where access to justice has become so inaccessible that the SCC brought in a summary judgment regime that reduces reliance on the full trial. Therefore, the SCC should reconsider, at least in the civil context (though the criminal context has given to inordinate delay as illustrated by Jordan SCC 2016) the ban on experts being permitted to wage their black magic credentials to unsuspected juries, and opine on the ultimate issue, and to be judge jury and executioner at once. "Have opinions, will travel" is the modus operandi of current day experts:
Other grounds of appeal
[19] The appellants submit that opinion evidence was improperly adduced by defence counsel during cross-examination of the appellants’ two expert witnesses, Travis Fricker, an accident reconstruction expert, and Dr. Christina Rudin-Brown, a human factors expert. The appellants say that these witnesses answered questions concerning their opinion as to the cause of the accident that were unrelated to their expertise and went directly to the ultimate issue for the jury. The appellants submit that there is a risk that the jury was “overwhelmed” by inadmissible opinion evidence.
[20] We disagree.
[21] First, there is no longer a general prohibition on the admission of expert evidence concerning the ultimate issue: see R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at p. 24; R. v. Lucas, 2014 ONCA 561 (CanLII), 121 O.R. (3d) 303, leave to appeal refused, [2014] S.C.C.A. No. 460, at para. 271; Hoang v. Vicentini, 2016 ONCA 723 (CanLII), at para. 62 [below].
[22] The appellants point to Fricker’s concessions on cross-examination that in an “ideal world” Hamilton would have waited, and that it would be more prudent to stop for any potential thing that could happen. But Fricker made clear that he was not in a position to judge what the average driver would do. Fricker’s evidence was tentative at best, and cannot be said to have been outside his expertise.
[23] Dr. Rudin-Brown assessed “human factors”, including the conspicuity of the left turn signal on the recycling truck and motorcyclist inexperience. She opined – based on the facts of the case and on her knowledge of human factors issues and road safety – that Hamilton reacted to the unfolding situation in a manner that was appropriate for the conditions that were present at the time and that his behaviour was entirely reasonable.
[24] Dr. Rudin-Brown had testified that the other flashing lights on the recycling truck might reasonably have contributed to any misinterpretation by Hamilton of the left turn signal. In cross-examination, defence counsel probed the assumptions underlying Dr. Rudin-Brown’s opinion that Hamilton reacted in a manner that was appropriate, leading to one of the answers with which the appellant takes issue:
Q. What if there was a left turn signal, because you know it’s a very significant issue in this case. If the left turn signal was activated and [Hamilton] made that move within a few car lengths of the intersection with the [Roth van] to the left, basically at the edge of the asphalt and a very large recycling truck with a left turn signal, you would agree that that would have been completely inappropriate behaviour?
A. It was appropriate.
Q: It was?
A: It was appropriate to Mr. Hamilton.
Q. Even with a left-turn signal?
A: If he saw the left turn signal and understood what it indicated, yes, that would be.
[25] Although the answer to the last question is ambiguous, this line of questions follows on from Dr. Rudin-Brown’s opinion and cannot be said to be unrelated to her expertise.
[26] The appellants also complain about an exchange in which Dr. Rudin-Brown appears to agree with defence counsel’s suggestion that Hamilton’s actions were those of an inexperienced motorcycle driver. (Although Hamilton was an experienced car driver, he had only been riding a motorcycle for a few weeks at the time of the accident.) Dr. Rudin-Brown assessed Hamilton’s motorcycle experience in arriving at her opinion. Her answer that his actions “could be interpreted that way” cannot be said to have been outside her expertise and, in any event, was ambiguous.
[27] Finally, the appellants challenge Dr. Rudin-Brown’s agreement with defence counsel’s suggestion that it would be prudent for a driver to keep even farther back than usual from a very large truck with many lights.
[28] This appears to be a common sense proposition that does not necessarily require expert evidence. However, no objection was taken to this line of questioning at trial.
//
Hoang v. Vicentini ONCA decision reads in part:
III. OPINION EVIDENCE ON THE "ULTIMATE ISSUE"
A. Statement of the issue
[58] At trial, Vicentini called Dr. Marc Green as a human factors expert who gave opinion evidence on Vicentini’s perception-reaction time – i.e., how long it would take Vicentini to perceive Christopher as a hazard and react to the hazard by braking or steering. The appellants did not oppose Green’s qualification as an expert entitled to express an opinion in the area of human factors.
[59] On this appeal, the appellants submit the trial judge erred by permitting Vicentini to lead evidence from Green that (i) the cause of the accident was Christopher darting out into traffic, and (ii) Vicentini had no chance to avoid the collision. The appellants argue such opinion evidence went beyond the area in which Green was qualified to testify and, as well, amounted to impermissible opinions on the ultimate issue the jury was required to decide.
[60] Vicentini submits the trial judge made no error because (i) the appellants had elicited similar evidence from their own accident reconstruction expert, Hrycay, and (ii) appellants’ trial counsel raised no objection to Green’s evidence.
B. Analysis
[61] I would accept Vicentini’s submissions.
[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.
[63] Second, an appellant cannot ask for a new civil trial as of right on the ground of the inadmissibility of evidence when no objection was made in respect of the matter at trial and no substantial wrong or miscarriage was occasioned: G.K. v. D.K. (1999), 1999 CanLII 935 (ON CA), 122 O.A.C. 36 (C.A.), at para. 17. In the present case, the appellants did not object at trial to the evidence from Green they now contend was inadmissible and, as noted, they elicited from their own expert evidence about whether the accident was avoidable. Moreover, in her charge to the jury, the trial judge summarized the competing opinions of Green and Hrycay on the cause of the accident, and her reference to that evidence did not prompt an objection by appellants’ trial counsel. The trial judge also properly instructed the jury on the use they could make of the expert evidence. Accordingly, in those circumstances, I would not give effect to this ground of appeal.
[Question: how do trial lawyers and trial judges know which question and which answer is common sense and which is not, when, even here, the CA can't even be sure: "This appears to be"? This is an intractable problem because even the routine legal issue of what is the proper standard of review on appeal is still unsettled after these decades at the SCC: see for example Ledcor SCC 2016 having to modify Sattva SCC of only 2 years prior 2014]
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