2014-01-14 Moore v. Getahun, 2014 ONSC 237 (CanLII), <http://canlii.ca/t/g2lwp>
Whether it is appropriate for counsel to review experts’ draft reports
[47] The
defence called Dr. Ronald Taylor to testify as an expert. He filed a
first report dated February 10, 2009 and a second report dated September
9, 2013. During his evidence, plaintiff’s counsel reviewed Dr. Taylor’s
file and found notes about a one-and-a-half-hour telephone call that
took place on September 6, 2013 between defence counsel and Dr. Taylor.
During that phone conversation, defence counsel reviewed Dr. Taylor’s
draft report dated August 27, 2013 and suggested changes for the final
report. Dr. Taylor confirmed that he had sent his draft report “to
Lerners for comments.” Dr. Taylor said he was happy with his draft
report but Lerners made “suggestions” and he made “the corrections over
the phone.”
[48] The
plaintiff submits that this phone meeting was improper. It was
inappropriate for defence counsel to make suggestions to shape Dr.
Taylor’s report.
[49] Defence
counsel’s written and oral submissions at the conclusion of the trial
suggest that “experts are entitled to prepare draft reports and they are
entitled to share those drafts with counsel for comment and
discussion.”
[50] For reasons that I will more fully outline, the purpose of Rule 53.03 is
to ensure the expert witness’ independence and integrity. The expert’s
primary duty is to assist the court. In light of this change in the role
of the expert witness, I conclude that counsel’s prior practice of
reviewing draft reports should stop. Discussions or meetings between
counsel and an expert to review and shape a draft expert report are no
longer acceptable.
[51] If
after submitting the final expert report, counsel believes that there
is need for clarification or amplification, any input whatsoever from
counsel should be in writing and should be disclosed to opposing
counsel.
[52] I do not accept the suggestion in the 2002 Nova Scotia decision, Flinn v. McFarland, 2002 NSSC 272 (CanLII),
2002 NSSC 272, 211 N.S.R. (2d) 201, that discussions with counsel of a
draft report go to merely weight. The practice of discussing draft
reports with counsel is improper and undermines both the purpose of Rule 53.03 as well as the expert’s credibility and neutrality.
Defence objections limiting the scope of the plaintiff’s expert evidence
[521] Defence counsel took a restrictive view of Rule 53.03 of the Rules of Civil Procedure objecting
to all evidence not specifically covered in Dr. Richards’ report. I do
not accept defence counsel’s approach as the proper or intended
interpretation of Rule 53.03.
Defence counsel limited the expert’s testimony to what is directly
contained in his report, even if the substance of the testimony was
latent in the report. However, in light of plaintiff counsel’s
concession, Dr. Richards’ answers in chief were limited to the content
of his reports. He was not permitted to comment on trial evidence, or
any issues arising from the evidence, unless they were referred to in
his reports.
[522] I
note that defence counsel did not follow the same set of strict rules
when questioning her experts. I allowed the expanded questioning of the
defence experts with respect to the evidence in this case,
notwithstanding the defence counsel’s rigid approach limiting Dr.
Richards’ evidence.
[523] It
would have been helpful to me as the trier of fact to have counsel
present to each of the expert witnesses the agreed upon and the disputed
facts, to fairly test whether the facts of the case impact upon their
opinions contained in their expert reports. In light of the defence
objections, this approach was not taken.
[524] As
well, defence counsel objected to the written reports being admitted
for their truth into evidence. Copies of the reports were available to
me as an aide to assist in following the evidence, but not admitted into
evidence. The oral evidence was not necessarily as clear as the
experts’ written reports. This made my task of fairly summarizing each
expert’s evidence more challenging.
[525] In
light of the defence submissions, I have not considered the experts’
reports for their truth. However, I conclude that the common law rule,
that an expert has the option of filing his report or testifying at the
trial, does not make practical sense after the amendments to Rule 53.03 of the Rules of Civil Procedure.
I suggest that experts should be entitled to rely upon their written
reports as part of their evidence-in-chief. This approach would both
streamline the trial process and assist the trier of fact in
understanding and assessing expert evidence. This is a matter for a
higher court, or the Civil Rules Committee.
______________________________
[36] Given
the statutory presumption that a limitation period begins to run from
the date of the accident, the onus is on the plaintiff to persuade the
court that the seriousness of his or her injury was not discoverable
within the applicable limitation period and the plaintiff must also
persuade the court that he or she acted with due diligence to discover
if there was a cause of action: Yelda v. Vu, 2013 ONSC 4973 (CanLII), 2013 ONSC 4973 at paras. 29-30.
[37] In Everding v. Skrijel, 2010 ONCA 437 (CanLII), 2010 ONCA 437, approving Vosin v. Hartin, [2000] O.T.C. 931 (S.C.J.), the Court of Appeal held that in applying the discoverability principle of the Limitation Act, 2002, the court should consider the threshold requirements of the Insurance Act, and the Court held that a plaintiff will not have discovered his or her claim before the plaintiff knows that
he or she has a substantial chance to succeed in recovering a judgment
for damages. A person cannot be expected to commence an action before he
or she knows that the necessary elements as set out in the legislation
can be established on the evidence: Hoffman v. Jekel, 2011 ONSC 1324 (CanLII), 2011 ONSC 1324 at para. 9.
[38] Under
the case law, for the limitation period to begin to run, the plaintiff
must have knowledge that his or her damages could be considered
permanent and serious. I emphasize that the plaintiff must have
knowledge because the limitation period does not begin simply because
the plaintiff believes or ought to believe that he or she has a claim.
Rather, the limitation period begins when the plaintiff first knew -
which I take to be when he or she had an objective appreciation - that a
proceeding would be an appropriate means to seek a remedy.
______________________________
| 2014-02-24 | Chapin v. Bennett, 2014 ONSC 1179 (CanLII) |
Facts
1. Patrick
and Cathy Chapin were married December 23, 1987. The Chapin’s had two
children, Jessie born November 6, 1991 and Wesley born May 9, 1995.
2. On
October 8, 2010 Cathy was a passenger in a motor vehicle being driven
by her sister Gwen, and owned by Gwen’s husband Ronald, in Newmarket
Ontario. Gwen apparently ran through a red light and collided with a
truck proceeding through the intersection on a green light. As a result
of Cathy’s injuries, Patrick got to her bedside just a few hours before
her death the same day.
3. As a result of Cathy’s death Patrick and Jessie commenced a Family Law Act action for damages for negligence and Patrick made a claim on behalf of Cathy’s estate as well.
4. Patrick,
who was already suffering from the death of his son Wesley, who had
died on December 9, 2009, took the death of his wife very hard, and has
been unable to return to work since that time.
5. December
11, 2011 Patrick was examined by Dr. Suzanne Allain, a Psychiatrist.
The medical conclusion – set out in a report dated January 11, 2012,
concluded that Patrick was suffering from Post Traumatic Stress Disorder
(PTSD). A further examination by Dr. Laurie Rezneck on August 15, 2013
confirmed this diagnosis in her report dated October 7, 2013.
6. As
a result of this diagnosis the plaintiffs have moved to amend their
Statement of Claim to include a claim for damages for Patrick for PTSD
and for past and future income loss, as well as for Jessie under the Family Law Act for damages resulting from the PTSD of her father Patrick.
Source: http://www.fairassociation.ca/
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