Howe v. The Commonwell Mutual Insurance Group, 2021 CanLII 40760

Howe v. The Commonwell Mutual Insurance Group

Citation: Howe vs. The Commonwell Mutual Insurance Group 2021 ONLAT 19-010824/AABS Tribunal File Number: 19-010824/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

Amanda Howe (Applicant)

and

The Commonwell Mutual Insurance Group (Respondent)

RULING RE SCOPE OF APPLICANT’S DIRECT EXAMINATION OF EXPERT WITNESS

Order made by: Cezary Paluch, Adjudicator

Date of Order: April 21, 2021

APPEARANCES:

For the Applicant: Amanda Howe, Applicant Joseph G. Falconeri, Counsel Leigh Harrison, Counsel

For the Respondent: Yvonne Mackinnon, Representative Linda Matthews, Counsel

Heard by Videoconference: April 14, 2021 with written submissions

OVERVIEW

1The applicant was injured in an automobile accident on August 1, 2012 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (the ''Schedule''). The applicant was denied certain benefits and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) and the matter proceeded to a hearing. The main issue in this case is whether the applicant is catastrophically impaired.

2In the course of the hearing on the third day, April 14, 2021, during the direct examination of one of the applicant’s expert witnesses, respondent’s counsel objected to this witness testifying regarding matters that went beyond the scope of her written report. Applicant’s counsel did not agree, and an issue arose regarding what areas this expert witness can testify to. This ruling deals with this narrow issue.

BACKGROUND

3Dr. M. Keightley is a psychologist and a member of the College of Psychologists of Ontario. In February 2019, the applicant retained Dr. Keightley for the purposes of providing an expert report on the catastrophic impairment assessment of the applicant. Dr. Keightley saw the applicant on January 16, 2019 to participate in a mental/behavioural assessment and prepared a Mental/Behavioural Evaluation Report dated February 11, 2019 (the “2019 Keightley Report”). This report was part of the Catastrophic Evaluation Report from Omega Medical Associates dated February 26, 2019 (the “2019 Omega Report”).

4In response to the 2019 Omega Report, on or about July 23, 2019, the respondent retained Dr. S. Ali to conduct an examination on the applicant and to provide an expert report. Dr. Ali’s report on the applicant was completed on September 17, 2019 (the “2019 Ali Report”).

5My understanding is that, after reviewing the 2019 Ali Report, Dr. Keightley prepared another report entitled Catastrophic Impairment Rebuttal Review dated February 16, 2021 (which was not solicited by the applicant), rebutting the findings and methodology of the 2019 Ali Report and provided it to the applicant on February 18, 2021 (the “2021 Keightley Report”). In this report, for the first time, Dr. Keightley provided the opinion that the applicant did not meet the diagnostic criteria for Asperger’s or Autism Spectrum Disorder, either before or after the accident. She also provides a critique of the 2019 Ali Report.

6On March 1, 2021, the applicant filed a motion to this Tribunal requesting to admit the 2021 Keightley Report, which was denied by the Tribunal as the report was not served on time. The motion Order dated April 8, 2021 provided as follows:

[10] The report clearly is not served in time. The Tribunal when confronted with relevant evidence will let it in to the evidentiary record but cure any prejudice to the opposing party by allowing time for a rebuttal. In this case that may not be necessary. The applicant did not request the report and it is their position Dr. Keightley can testify to the contents of the report. The respondent disagrees but I do not have to resolve that argument which is best left to the hearing adjudicator. [emphasis added]

7Dr. Keightley was called to testify at the hearing by the applicant. I accepted her as an expert in the field of pediatric and adult psychology. However, the respondent objected and requested to limit Dr. Keightley’s evidence to the 2019 Keightley Report only. The applicant requests that there should be no limitations to the scope of Dr. Keightley’s viva voce evidence in relation to either of her reports. At that point the hearing was adjourned to allow the Tribunal to resolve this issue.

ISSUE

8The parties agreed that the issue to be decided regarding this ruling is:

1. What are the parameters of the evidence that the applicant’s expert witness Dr. Keightley can provide in this hearing?

POSITION OF THE PARTIES

Respondent

9The respondent takes the position that Dr. Keightley’s testimony should be limited to the evidence contained in the 2019 Keightley Report and that she may explain that evidence, but not provide any new opinions not contained in her 2019 report. Anything else is trial by ambush and an attempt to sneak in evidence without giving the other side a fair opportunity to respond, and that the respondent has had no reasonable opportunity to respond to any additional evidence.

10The respondent argues that limiting an expert witness to the opinions contained in a report is not only consistent with Tribunal’s rules (i.e. to give notice of the evidence to be called from expert witnesses) and analogous case law in Superior Court under Rule 53 of the Rules of Civil Procedure, it is also consistent with the Tribunal’s case law regarding late-served expert reports.¹

Applicant

11The applicant requests that the Tribunal permit Dr. Keightley to give evidence as to the contents of her 2021 Keightley Report. They submit that the Tribunal has the authority to grant this requested relief pursuant to section 15 of the Statutory Powers Procedure Act² and also that the Motion Order allows for the admission of the 2021 Keightley Report through oral testimony at the discretion of the adjudicator to this matter.

RESULT

12I find the probative value of Dr. Keightley’s testimony outweighs any potential prejudice suffered by the respondent, and will allow her to testify to anything reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding, including any relevant information contained in the 2021 Keightley Report.

ANALYSIS

13With that backdrop, I will assess the parameters of this expert’s testimony within a tribunal setting in the circumstances of this case.

14Experts are entitled to give opinion evidence in areas within their accepted areas of expertise. This is codified in Rule 10 of the Tribunal’s Common Rules of Practice and Procedure³ that defines an expert witness as “a person who is qualified to provide professional, scientific, or technical information and opinion based on special knowledge acquired through education, training or experience in respect of the matters on which he or she will testify.” Subrule 10.2 is also of assistance and provides that a party seeking to rely on the evidence of an expert witness must serve an expert report setting out “the expert’s conclusions, and the basis for those conclusions on the issues to which the expert will provide evidence to the Tribunal.”

15Counsel for both parties acknowledge that Dr. Keightley is an expert in the field of pediatric and adult psychology. Her extensive curriculum vitae describes her areas of practice, education and experience in this area. Once expertise has been established in a particular area, the weight of the expert’s evidence is something for further consideration by the Tribunal in the face of all the evidence. Here, the parties do not take issue that Dr. Keightley has relevant information to provide, or her qualifications for that matter. However, the parties disagree whether Dr. Keightley’s testimony should be limited essentially to the evidence provided in her original report, or whether she can go into new areas including what information is contained in her rebuttal report which was excluded as per the Motion Order.

16There is limited case law at the Tribunal regarding the allowable scope of an expert witness’s testimony as it relates to the findings and conclusions contained in their report. This may be so because the Tribunal is not a court and the rules of evidence are relaxed in an administrative tribunal setting such as this and are governed by the SPPA.

17As a starting point, under subsection 15(1) of the SPPA, the Tribunal is permitted to admit as evidence at a hearing, any oral testimony and any other document or other thing relevant to the subject-matter of the proceeding and may act on such evidence, but the Tribunal may exclude anything unduly repetitious. Subsection 15(2) of the SPPA provides that nothing is admissible in evidence at a hearing, (a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or (b) that is inadmissible by statute under which the proceeding arises or any other statute.

18In my view, the SPPA applies in this context and provides a complete response to the question of the scope of an expert’s testimony: any oral testimony may be given in evidence unless it is inadmissible by reason of privilege, which is not the situation in the present case nor does the evidence appear to be inadmissible by any statute.⁴ The language in section 15 of the SPPA is permissive: the Tribunal may admit the oral testimony. Further, the Tribunal is not compelled by s. 15 to admit the oral evidence; it merely has the discretion to do so. In my view, this Tribunal’s practice is to allow a wider scope of admissibility, and routinely admit evidence that would otherwise be inadmissible in the law courts (i.e. hearsay evidence) and determining whether such evidence is reliable and how much weight should be attached to what would otherwise be inadmissible.

19Undeniably, this discretion is not unfettered and always has to be balanced between the probative value of any new information or evidence against the prejudice to the other party in allowing in such evidence. Although it may be unfair to allow new evidence at a very late stage if the respondent does not have any opportunity to respond, however, in this case, I note that the respondent will have the opportunity to cross examine Dr. Keightley and can call witnesses as part of their case including making final submissions as to the probative value and weight to be given to her evidence.

20In furtherance of curing any prejudice to the respondent, I will also allow the respondent a brief adjournment to prepare and conduct their cross examination of Dr. Keightley. As well, I will allow the respondent to call any additional expert witnesses that were not contemplated previously to reply to Dr. Keightley’s testimony. I do note that at the beginning of the hearing, respondent’s counsel did anticipate calling Dr. Ali. I believe this strikes the appropriate balance between the probative value of Dr. Keightley’s evidence which appears will address one of the main issues in dispute and at the same time alleviates any disadvantage to the respondent by allowing them a reasonable opportunity to respond to any additional evidence.

21The respondent cited the Reconsideration Decision of JS v Aviva General Insurance⁵ for the proposition that Tribunal Rule 10.2 is modelled after Rule 53.03 of the Rules of Civil Procedure that sets out the requirements for introducing the evidence of expert witnesses at trial and submits that cases decided in the Court of Appeal and Superior Court under Rule 53.03 are instructive and persuasive precedent. Although I am not bound by this decision I note that Vice Chair Mather went on to explain that the Common Rules are meant to be interpreted liberally and that the adjudicator had the discretion to waive the requirements in Rule 10.2 if she was satisfied that the witness had the expertise to form the opinions and to make recommendations she made. In finding that the adjudicator did not make an error of law in considering the opinion of an expert psychologist without the requirements of Rule 10.2 being met Vice Chair Mather explained at para. 39 as follows:

The Rules are meant to be interpreted liberally and even if Dr. Padda was an expert witness the adjudicator had the discretion to waive the requirements in Rule 10.2 if she was satisfied that the witness had the expertise to form the opinions and to the make recommendations she made.

22The parties agree that the leading case in Ontario regarding the permissible scope of expert medical testimony as it relates to the contents of the expert’s report is the decision of the Court of Appeal in Marchand (Litigation guardian of) v Public General Society of Chatham.⁶ In Marchand, the Court of Appeal upheld the trial judge’s ruling limiting viva voce expert evidence to the substance of the expert’s report. The Court of Appeal held that an expert may explain and amplify what is in their report, but cannot give evidence on a new issue that is not mentioned in the report:

[38] In our view, these cases indicate that the "substance" requirement of rule 53.03(1) must be determined in light of the purpose of the rule, which is to facilitate orderly trial preparation by providing opposing parties with adequate notice of opinion evidence to be adduced at trial. Accordingly, an expert report cannot merely state a conclusion. The report must set out the expert's opinion, and the basis for that opinion. Further, while testifying, an expert may explain and amplify what is in his or her report but only on matters that are "latent in" or "touched on" by the report. An expert may not testify about matters that open up a new field not mentioned in the report. The trial judge must be afforded a certain amount of discretion in applying rule 53.03 with a view to ensuring that a party is not unfairly taken by surprise by expert evidence on a point that would not have been anticipated from a reading of an expert's report.⁷ [emphasis added]

23The respondent has also cited several other decisions that all essentially follow Marchand. I note that all these cases are civil cases where the courts dealt with Rule 53 of the Rules of Civil Procedure.

24While the Court of Appeal’s decision in Marchand is binding on this Tribunal, I find that is not applicable to these circumstances because the Rules of Civil Procedure do not apply to the Tribunal. A party’s disclosure re expert testimony obligations in litigation are governed by the Rules of Civil Procedure. Rule 1.02 states that the Rules of Civil Procedure apply to civil proceedings in court. The Tribunal is not a court and the Rules of Civil Procedure do not apply to the Tribunal. This is an administrative proceeding and the Tribunal is subject to its own rules of proceeding. I also note that Rule 53 is more comprehensive than Tribunal Rule 10.2. For example, there is no requirement in Rule 10.2 that leave be sought prior to an expert witness testifying regarding an issue unless the substance of his or her testimony is in a report.⁸

25The Common Rules were made pursuant to the authority granted by the Legislature in section 25.1(1) of the SPPA and section 6 of the Licence Appeal Tribunal Act, 1999.⁹ As a corollary to those grants of authority, the Common Rules must be both written and interpreted in a way that is consistent with the SPPA. Thus, I cannot interpret the Rules in a manner that is inconsistent with the SPPA. Again, s. 15(2) of the SPPA grants the Tribunal the authority to admit any relevant oral testimony.

26I also note that the SPPA provides further guidance regarding the examination of witnesses. In particular, section 10.1 explicitly states that “a party to a proceeding may, at an oral or electronic hearing, (a) call and examine witnesses and present evidence and submissions; and (b) conduct cross-examinations of witnesses at the hearing reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding.” (emphasis added)

27In the matter of N.C. v. TD Insurance Meloche Monnex¹⁰ the respondent objected to Dr. Becker making any comments about Dr. Solomon’s neuropsychological report because the applicant did not serve the respondent with a report indicating what her comments may be as required under Rule 10.2(d). The applicant submitted he was unable to obtain a report from Dr. Becker in time for the hearing, which was only served on the second day of the hearing. In that case, the Tribunal allowed Dr. Becker to comment on Dr. Solomon’s report because Dr. Becker’s testimony was potentially relevant. Any prejudice to the respondent was curable by allowing a short adjournment for its counsel to review the report and prepare for Dr. Becker’s cross-examination and to prepare Dr. Solomon for testifying.

28In reply submissions, the respondent submits that Dr. Keightley’s new opinion regarding what used to be Asperger’s under the DSM IV, now Autism Spectrum Disorder under DSM V (“ASD”) represents a major departure from other evidence that would prejudice the respondent. The respondent further explains that no other expert or physician has questioned whether the applicant had Asperger’s or ASD prior to the accident. The diagnosis has never been dismissed by anyone other than Dr. Keightley in her late report. This may be true but, in my view, the best evidence reasonably available should still, as in all matters, inform the Tribunal’s decision and it is appropriate that the Tribunal attempt to canvass all relevant evidence in arriving at its decision.¹¹

29Dr. Keightley’s evidence, specifically with regards to causation and the legitimacy of the alleged pre-accident diagnoses of Asperger’s or ASD on the applicant, may constitute such evidence and add probative value to the overall evidentiary record. Indeed, it should be remembered that anytime the Tribunal excludes relevant evidence from hearing it potentially leaves the Tribunal with an inaccurate and misleading view of their evidence, if not deny it the ability to reach a fair and just decision. Finally, this does not mean that the Tribunal will accept Dr. Keightley’s evidence in its entirety or prefer the evidence of another expert as the Tribunal has the responsibility to weigh the evidence before it in determining whether the applicant has sustained a catastrophic impairment.

30In light of the above, I find the probative value of Dr. Keightley’s testimony outweighs the prejudice suffered by the respondent and I will allow her to testify to anything reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding, including the information contained in the 2021 Keightley Report as it is potentially relevant.

ORDER

31I will exercise my discretion and allow the applicant to question Dr. Keightley regarding anything reasonably required for a full and fair disclosure of all matters relevant to the issues in this proceeding, including her findings and opinions contained in the 2021 Keightley Report.

32After Dr. Keightley’s direct examination is completed, the respondent may request a brief adjournment for the purpose of preparing for the cross examination of Dr. Keightley, and also to prepare their witnesses for testifying.

33The respondent may also call any additional expert witnesses to reply to Dr. Keightley’s evidence. For this purpose, the respondent is permitted to obtain and read in portions of the transcript of the applicant's direct examination of Dr. Keightley and allow their witnesses an opportunity to respond.

OTHER PROCEDURAL MATTERS

34Except for the provisions contained in this Order all previous orders made by the Tribunal remain in full force and effect.

35If the parties resolve the issue(s) in dispute prior to the hearing, the applicant shall immediately advise the Tribunal in writing.

Footnotes

1. 1See Eagle v Unifund Company, 2020 CanLII 94812 (ON LAT); VG v Aviva Insurance Canada, 2019 CanLII 22214 (ON LAT); and ZA v Unifund Assurance Company, 2018 CanLII 76444 (ON LAT) where expert reports were excluded.
2. 2R.S.O. 1990, c. S.22 (“SPPA”).
3. 3Licence Appeal Tribunal, Animal Care Review Board and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017, as amended (the “Common Rules”).
4. 4For completeness, the parties did not raise s. 15(3) of the SPPA that deals with conflicts between s. 15 and any Act expressly limiting the extent to or purposes for which any oral testimony, documents or things may be admitted or used in evidence in any proceeding.
5. 5JS v Aviva General Insurance, 2019 CanLII 63355 (ON LAT) at para 33.
6. 6Marchand (Litigation guardian of) v Public General Society of Chatham, (2000) 2000 CanLII 16946 (ON CA), 51 OR (3d) 97 (CA) (“Marchand”).
7. 7Marchand, supra at para 38.
8. 8Sanction for Failure to Address Issue in Report or Supplementary Report - Rule 53.03(3)(a) states: “An expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set out in … a report served under this rule.”
9. 9S.O. 1999, chap 12, Sched. G.
10. 10N.C. v TD Insurance Meloche Monnex, 2020 CanLII 27411 (ON LAT).
11. 11N.Y. v. TD Insurance Meloche Monnex, 2017 CanLII 69446 (ON LAT) at para. 10.