Admissibility of Expert Reports in Small Claims Court

Admissibility of Expert Reports in Small Claims Court

In Turner v. Kitchener (City) [2011] O.J. No. 4803, there was a mid-trial ruling on the admissibility of an expert report in Small Claims Court.

The facts of this case involve a plaintiff who was riding his bike along a recreational trail in Kitchener. It was his regular route and time of travel which put him on the trail at 5:15 am.

Earlier that morning vandals had set fire to a bridge along the trail and after investigating, the police and fire personnel had blocked off the bridge with a wooden barricade and yellow caution tape.

The plaintiff was biking at a relatively high speed for the time of morning, was wearing a helmet but did not have any light affixed to his bike. As the plaintiff approached the barricade, he was not able to see it, and when he did notice it is was too late to stop safely. The plaintiff applied his brakes so hard that he flipped over the bike and suffered injuries.

At trial, the plaintiff attempted to admit into evidence a report from a professional engineer. Defence counsel objected and intended to cross-examine the expert and challenge the admissibility of his report based on the evidence of qualifications.

The deputy trial judge held that the report was admissible. He cited section
27(1) of the Courts of Justice Act which provides the Small Claims Court (“SCC”) with the general authority to “accept and act on lower-quality evidence than would otherwise be permitted under the common law rules of evidence”.

He then examined the SCC Rule 18.02 subsections (1) to (7) and held that the position of defence counsel as he intended to cross-examine the expert is not contemplated by the Rules and that the report had already been admitted into evidence by way of Rule 18.02 (1) to (3). Admissibility of documents under Rule 18.02 is to be determined at the initial stage under Rule 18.02(1) when the document is tendered - “Once the document is admitted, the witness may be-cross-examined using the summons procedure under rule 18.02(4). But since that is cross-examination,the rule presupposes that the report or document is already admitted into evidence. The report or document serves as the examination-in-chief of that
witness.”

The deputy judge found no merit in the defendant’s objection to the expert’s qualifications. The expert was a professional engineer and his qualifications to provide the opinion evidence were of the highest quality generally seen in civil courts.

- Alison McBurney

Admissibility of Expert Reports in Small Claims Court

Expert Independence

Expert Independence

Do the new rules pertaining to expert evidence impose a higher duty than at common law?  When an expert is alleged to be biased due to a connection to one of the parties or a matter in issue, does it go to admissibility or weight? 

In Henderson v. Risi, 2012 ONSC 3459 (S.C.J.), the defendant proffered an expert, Mozessohn, to give testimony at trial regarding irregularities in the financial records of Timeless Inc., provide an opinion on the value of shares in Timeless held by the plaintiff, and critique the plaintiff expert's opinion.  The plaintiff objected to the admissibility of Mozessohn's evidence on the basis that he was not independent or impartial since he was a partner in the accounting firm that acted as Timeless' Trustee in Bankruptcy.  Mozessohn testified that there had been no communication between members of his firm about the case.

Justice Lederman quoted the Newfoundland Court of Appeal in Gallant v. Brake-Patten 2012 NLCA 23 (CanLII), which summed up the law regarding the admissibility of expert evidence where the allegation is the expert lacks institutional independence as opposed to personal advocacy:

In summary, in civil cases, if expert evidence meets the Mohan criteria for admissibility, it is admissible.  Bias or partiality in expert evidence which is based on the expert having a connection with a party or issue or a possible pre-disposition or approach in the case is a reliability issue which is best determined when the whole of the expert evidence is considered in the context of all of the trial evidence.  As such, the issue is one of weight and not admissibility.

Plaintiff's counsel argued that the new r. 4.1 and the changes to r. 53 imposed a higher level on duty on an expert in Ontario, and that the question of institutional independence must be determined at the admissibility stage rather than leaving it to be considered as a matter of weight.

Justice Lederman disagreed and allowed the expert to give testimony.  Rules 4.1 and 53 simply remind experts of their already existing obligations to provide opinion evidence that is fair, objective and non-partisan.  Any lack of institutional independence went to weight rather than admissibility.  The new rules impose no higher duties than already existed at common law.

Expert Independence

Expert Evidence at Trial

Expert Evidence at Trial

The Divisional Court has released an important decision with respect to expert evidence.  In Westerhof v. Gee (Estate), 2013 ONSC 2093 (Div. Ct.), a jury awarded the plaintiff $22,000 in general damages and $13,000 for loss of income.  The trial judge, however, dismissed the claim on the basis that it did not meet threshold.  The plaintiff appealed, arguing that the trial judge erred by restricting the plaintiff's expert witnesses.  A number of treating practitioners were not permitted to give evidence about diagnosis or prognosis, two accident benefits assessors were not permitted to give opinion evidence, a neurologist was not permitted to give evidence regarding psychiatric or psychological issues, and opinions contained in MRI reports were redacted.

The appeal was dismissed.  The Court discussed a number of cases dealing with r. 53.03 and r. 4.1.01, which provide a framework for the duties of experts.  The key distinction is whether the evidence is factual or opinion evidence; if it is opinion evidence, compliance with r. 53.03 is required.  As a result, it was correct for the trial judge to exclude the evidence.  A treating physician could offer evidence with respect to observations of the plaintiff or the treatment provided, but once such a witness seeks to offer opinions on the cause of the injury, its pathology or prognosis, the evidence enters into the realm of opinion evidence requiring compliance with r. 53.03.

Westerhof provides much-needed guidance regarding expert witnesses.  It will be interesting to see whether the number of treating practitioners testifying decreases as a result of the ruling.  The plaintiff's treating practitioners will now be held to a higher standard, and there may be an opening to argue that a practitioner is an advocate rather than impartial witness.

Expert Evidence at Trial

Leave to call nine witnesses denied

Leave to call nine witnesses denied

The rules of evidence allow for three expert witnesses to be called at trial. The plaintiff in Leonard v. Kline ,[2011] ONSC 2730 (S.C.J.) sought leave to call nine expert witnesses at her upcoming jury trial. The list of proposed experts included a psychiatrist, psychologist, vocational expert, vocational rehabilitation consultant, accountant/actuary and others.

The issue at the plaintiff’s upcoming trial was her earning capacity. The plaintiff sought to have each expert witness give an opinion on whether she would be able to engage in gainful employment. The plaintiff’s argument was two-fold: 1) each expert approaches the issue from a different area of expertise; and 2) the jury should know what the “weight of expert” evidence is on the issue.

The defendant argued that this would be duplicitous [sic - duplicative]. The defendant only intended to call two expert witnesses.

Ellies J. did not agree with the plaintiff’s “weight of expert evidence” argument expressing his concern with trials becoming battles of the experts. He went on to consider the eight factors listed in Burgess (Litigation Guardian of) v. Wu , [2005] O.J. No. 929. His decision focused on factor seven – the degree to which there is duplication in the proposed opinions of different experts.

Upon determining that some of the proposed expert witnesses were duplicitous [sic - duplicative]. , Ellies J. proceeded to divide them into groups based on shared opinions, whether they prepared joint reports, and whether they used similar tests upon the plaintiff in which their opinion was based. The plaintiff was then given the option to choose one expert witness from each group.

This decision seems to be a good example of the court fulfilling its "gatekeeper" role with respect to experts.

Leave to call nine witnesses denied

Westerhof v. Gee - Expert Testimony

Westerhof v. Gee - Expert Testimony

The much anticipated appeal decision in Westerhof v. Gee was released yesterday.  It can be found at 2015 ONCA 0206 (C.A.).  In Westerhof, the trial judge refused to let in evidence on history, diagnosis, and prognosis from medical practitioners who were treating practitioners or non-party experts.

The Court of Appeal overturned the Divisional Court decision, which held that the key factor in determining whether r. 53.03 applies is whether the evidence is fact or opinion.  Instead, the Court held:

[60]     Instead, I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where:

·        the opinion to be given is based on the witness’s observation of or participation in the events at issue; and

·        the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

Rule 53.03 does not apply to the opinion evidence of a non-party expert where that person has formed a relevant opinion based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation.  The court retains its gatekeeper function and may require compliance with r. 53.03 if the expert goes beyond the scope of opinion formed in the course of treatment or observation for purposes outside of the litigation.

Given the decision in Westerhof  it will now be permissible for treating practitioners and accident benefits assessors to testify without complying with r. 53.03.

Westerhof v. Gee - Expert Testimony

Counsel Should Not Review Draft Expert Reports

Counsel Should Not Review Draft Expert Reports

A recent trial decision held that counsel should not review draft expert reports.  In Moore v. Getahun, 2014 ONSC 237 (S.C.J.), the plaintiff brought an action against an emergency room physician for negligently applying a cast after he fractured his wrist.

At trial, there were a number of evidentiary issues with respect to expert evidence, including whether it is appropriate for counsel to review draft expert reports and provide input?

Justice Wilson held that it was not proper for counsel to review an expert’s draft report.  If there are changes to a report, there should be disclosure to the other party:

[520]      The purpose of Rule 53.03 of the Rules of Civil Procedure is to ensure the independence and integrity of the expert witness. The expert’s primary duty is to the court. In light of this change in the role of the expert witness under the new rule, I conclude that counsel’s practice of reviewing draft reports should stop. There should be full disclosure in writing of any changes to an expert’s final report as a result of counsel’s corrections, suggestions, or clarifications, to ensure transparency in the process and to ensure that the expert witness is neutral.

Counsel should review the Moore decision as it potentially has repercussions for the way that counsel interact with experts in the future.  One has to wonder whether the Rule Committee intended r. 53 to be interpreted so broadly.

Counsel Should Not Review Draft Expert Reports

Court of Appeal Releases Decision in Moore v. Getahun

Court of Appeal Releases Decision in Moore v. Getahun

The 2014 decision of Moore v. Getahun created quite a stir in Ontario's litigation bar when Justice Wilson held that it was improper for counsel to review and discuss draft reports with experts.  The Court of Appeal released its appeal of the decision January 29, 2015.  You can access the decision by clicking here.

The Court disagreed with the trial judge. There held there is nothing improper about "this longstanding practice."  Sharpe J.A. noted that the trial judge's decision is contrary to existing cases which say communication with the expert can actually help ensure an opinion is admissible, coherent and comprehensive.  There are safeguards built into the system: counsel cannot persuade an expert to change an opinion and it still needs to be objective.

Draft reports and notes of meetings and other communications are litigation privileged and do not have to be produced, absent a reasonable suspicion the expert was improperly influenced.  The foundational information used in formulating the opinion must still be produced.

This common sense decision will be welcomed by many on both the plaintiff and the defence side.

Court of Appeal Releases Decision in Moore v. Getahun