Category: Expert evidence

Forsung v. Neadow, 2023 ONSC 5873

In this decision, Justice Muszynski dismissed a motion brought by the plaintiffs at the outset of trial to adduce expert evidence from three experts whose reports were served outside the timeline contemplated by the Rules of Civil Procedure. The plaintiffs served the expert reports on June 22, 2023. The pre-trial conference took place on July 12, 2023. At the pre-trial conference defence counsel raised that the reports were served late, although it was not mentioned in the presiding judge’s pre-trial report. At a case conference with the trial judge, Justice Muszynski, on October 4, 2023, the defendant objected to the plaintiffs calling the experts at trial. Plaintiffs’ counsel took the position that the defendant was not prejudiced and could have obtained responding reports. Trial started on October 10, 2023. In dismissing the plaintiffs’ motion, Justice Muszynski reasoned that the plaintiffs did not take timely steps to address their non-compliance with the Rules and instead did nothing until the outset of trial. This approach ran counter to the objectives of the March 2022 amendments to the Rules which sought to address problems associated with late adjournments of trial due to non-compliance.

Jerry et. al. v. Black et. al, 2023 ONSC 603 (Div. Ct.)

This personal injury action arises from a motor vehicle accident. The defendants arranged for the primary plaintiff to be assessed by a neuropsychologist. Counsel for the parties exchanged correspondence confirming: the date for the 6.5 hour appointment; the plaintiff’s agreement to attend; and that a missed appointment fee would be charged if he failed to attend. The amount of the missed appointment fee was not discussed. The plaintiff did not attend the appointment and the neuropsychologist charged a missed appointment fee of $1,695. The defendants sought reimbursement of the fee, and the plaintiffs refused to pay. The defendants brought an unsuccessful motion for reimbursement in which the motion judge accepted the plaintiffs’ argument that the court did not have jurisdiction to make the order sought, and dismissed the motion.

The defendants obtained leave to appeal, and on appeal the Divisional Court allowed the appeal and ordered the plaintiffs to pay the missed appointment fee. In its reasons the Divisional Court confirmed that the Superior Court has jurisdiction to order that a party pay the costs of an independent medical examination that they failed to attend even in the absence of a court order for the examination.

D’Eon v. Hosseini, 2022 ONSC 4397

The defendant in this MVA personal injury action wished for the plaintiff to be assessed by certain damages experts. Plaintiff’s counsel did not agree to have the plaintiff examined by the proposed expert neurologist, psychiatrist, physiatrist, and vocational specialist. The defendant brought a motion to compel the plaintiff to attend with these experts. In the course of the motion, counsel for the defendant also asked the court to order that plaintiff’s counsel cease writing to defence experts. Plaintiff’s counsel had previously written a defence expert setting out certain terms and conditions that should govern the assessment. Justice Wilson ordered that the plaintiff attend the defence assessments at issue. Justice Wilson further directed that it is inappropriate for plaintiff’s counsel to write directly to the individual retained by the defence to conduct an independent assessment of the plaintiff, and improper for any counsel to attempt to intimidate or threaten an assessor retained by the opposing party. If counsel is concerned about what will transpire during an assessment then they must raise such issues with opposing counsel and attempt to work them out. If that is not possible then a case conference should be secured with a judge in Toronto before bringing a motion.

Imeson v. Maryvale (Maryvale Adolescent and Family Services), 2018 ONCA 888

At trial, the defendant was found vicariously liable for sexual abuse alleged to have been committed against the plaintiff by its former employee. The defendant appealed on the basis that the trial judge erred in admitting the opinion evidence of a mental health clinician who gave evidence at trial as a participant expert. The court held that the plaintiff’s treating doctor, who had not delivered a Rule 53 expert report, ought not to have been permitted to provide opinion evidence as to whether the alleged sexual assaults occurred (liability) and whether the plaintiff suffered harm caused by such assaults (damages). Furthermore, the treating doctor’s expert opinions going to the issues of liability and causation failed to satisfy the threshold requirements for admissibility under the first step of the test in R v. Mohan and ought to have been excluded under the second step of the admissibility test because the prejudicial effect of the evidence outweighed its probative value. The appeal was allowed and a new trial ordered.

Wray v. Pereira, 2018 ONSC 5662

The Plaintiff was a 67 year old male with chronic right knee pain. At trial, he testified that he currently experienced chronic pain in his right knee, could not walk or run long distances, and had difficulty climbing stairs. He had a constant limp and was no longer able to perform his pre-accident home renovation work. The jury awarded general damages of $22,000.00 and $2,000.00 for out-of-pocket expenses. On a threshold motion, the Plaintiff’s theory was that the MVA triggered a pre-existing condition to become symptomatic. The defence theory was that the Plaintiff sustained a muscle sprain in his knee after the MVA which would have resolved in six to eight months. Justice McKelvey accepted Dr. Finkelstein’s opinion that it was rare for a patient to have no symptoms given the degree of arthritis in the Plaintiff’s right knee and that the current knee pain was likely unrelated to the MVA. As such, the Plaintiff did not meet the statutory threshold.

Rososhansky v. Williams, 2018 ONSC 1964

The Plaintiff was injured in a motor vehicle accident. He produced several medical reports which indicated that he sustained head and neck injuries as a result of the accident. At the pre-trial, despite not yet conducting a medical examination of the Plaintiff, the Defendants took the position that there was “zero chance” of financial liability because the medical report that they would obtain would demonstrate no injuries attributable to the accident. Justice Koehnen found it disturbing that the Defendants had such certainty about the outcome of an independent medical examination that had not yet been commissioned. Justice Koehnen also criticized the Defendants for rendering the pre-trial “a waste of time” by relying on a medical report that had not yet been prepared, but insisting that there was no possibility of liability. As such, costs of the pre-trial were awarded against the Defendants.

Balasingham v. Desjardins Financial Security, 2018 ONSC 1792

The Defendant requested an adjournment of the trial because of the late delivery of expert reports by the Plaintiff. The Plaintiff opposed the adjournment request. Justice Firestone refused the Defendant’s request for an adjournment of the trial, but ordered that the Defendant was entitled to a defence medical examination of the Plaintiff and could deliver any responding reports by the first date of trial.

Nguyen v. Szot, 2017 ONSC 3705

The jury awarded the Plaintiff general damages of $2,700.00 and damages for past income loss of $3,124.00. The Defendant brought a threshold motion following the jury’s award. Justice Archibald concluded that the Plaintiff’s injuries were neither serious nor permanent and that the Plaintiff was exaggerating the level of impairment that he had suffered. Justice Archibald was also critical of the Plaintiff’s psychological expert whom he felt had acted as the Plaintiff’s advocate during testimony. The Plaintiff was ordered to pay costs of $90,790.00 and disbursements of $71,000.00.

Bruff-Murphy v. Gunawardena, 2017 ONCA 502

The Ontario Court of Appeal ordered a new trial in this MVA case where the defence expert had crossed the line from objective witness to advocate. The Court of Appeal upheld the trial judge’s decision to deny cross-examination on the defence expert’s previous court and arbitration attendances on the basis that it would divert the jury’s attention from the matter before them.

Johnston v. Walker, 2017 ONSC 3494

The Defendant sought an order that the Plaintiff’s MVA injuries did not pass the statutory threshold. The jury had awarded the Plaintiff $60,000.00 in general damages. Justice Charney held that the Plaintiff’s injuries did not meet the statutory threshold as the evidence did not support that her ongoing pain substantially interfered with her ability to continue her regular employment or most of her usual activities of daily living. Justice Charney was also critical of the Plaintiff’s medical-legal report because it did not set out the Plaintiff’s specific functional limitations and was inconsistent with the Plaintiff’s own evidence.