Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20211108 DOCKET: C66771
Rouleau, Hoy and Thorburn JJ.A.
BETWEEN
Peter St. Marthe Plaintiff (Respondent)
and
Leslie J. O’Connor Defendant (Appellant)
Counsel: Alan L. Rachlin and James Pedro, for the appellant James L. Vigmond, Brian M. Cameron and Liane J. Brown, for the respondent
Heard: September 23, 2021 by video conference
On appeal from the judgment of Justice Patrick Hurley of the Superior Court of Justice, dated March 11, 2019 and July 15, 2019, with reasons reported at 2019 ONSC 1585 and 2019 ONSC 4279.
Thorburn J.A.:
Introduction
[1] The appellant, Leslie J. O’Connor, appeals the order of the trial judge who discharged the jury and rendered judgment in favour of the respondent, Peter St. Marthe. The appellant seeks an order that the judgment be set aside and that a new trial be ordered.
Background
[2] This action arose from a motor vehicle accident that occurred on November 9, 2011. The respondent’s bicycle was hit by the appellant’s motor vehicle. The respondent claimed that he suffered soft tissue injuries that rendered him incapable of continuing to work in the construction industry. This required him to return to school to be retrained to enable him to pursue a more sedentary vocation.
[3] On November 9, 2014, Dr. Mussett, an orthopaedic surgeon, assessed the respondent at the request of his accident benefits insurer. In his report, dated December 11, 2014, he stated that,
In my opinion his ongoing right upper back pain is related to his previous injury. The symptoms impair his ability to use his back and right arm with any strenuous activity. This has resulted in the inability to perform expected duties at work without experiencing pain and discomfort. It has also resulted in the inability to partake in recreational activities without experiencing pain and discomfort.
Answers to Specific Questions
Did the claimant sustain an impairment as a direct result of the motor vehicle accident? Please describe.
In my opinion, Mr. St. Marthe did sustain an impairment as a direct result of his accident. His symptoms have been present since the time of the accident. He had no pre-existing condition or associated symptoms prior to his injury. His ongoing symptoms and his clinical findings are consistent with the mechanism of injury.
Is the proposed OCF 18 Treatment and Assessment Plan reasonable and necessary related to the impairments sustained in the motor vehicle accident? If no, please provide a complete explanation.
I believe the Treatment and Assessment Plan is reasonable and necessary in that Mr. St. Marthe does require additional treatment. The treatment goals have been recognized including pain reduction, increase strength and increase range of motion. [Emphasis added.]
[4] He concluded that it was reasonable and necessary that the respondent receive additional treatment due to the accident.
[5] Prior to his assessment of the respondent, he was only provided with forms from the insurer. He was provided no medical documentation. He did not see the respondent, nor did he review any medical reports after that date.
[6] Four years later, the case went to trial by jury. Liability was conceded and the only issues to be determined were whether the lawsuit should be dismissed pursuant to s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B., and the pecuniary and non-pecuniary damages, if any, to be awarded to the respondent.
[7] Dr. Mussett was called by the respondent as a non-party expert and his report was included in the joint document brief.
[8] In examination-in-chief, Dr. Mussett testified about his findings and the conclusion in his report that the respondent’s Treatment and Assessment Plan was reasonable and necessary.
[9] On cross-examination he was asked the following questions and gave the following answers:
Q. You are – you had three documents to look at when you saw Mr. St. Marthe?… [Y]ou had an O-C-F-1, and O-C-F-24 and an O-C-F-18, does that look right?
A. If that’s in the report… No, I don’t remember... [K]now that it – it’s – it hurts when you touch.
Q. Okay. Well, we’re talking about Mr. St. Marthe.
A. Yes.
Q. Okay. So then does it surprise you that he was working in construction? Or that he plays soccer?
A. That’s a tough question to answer. I mean, people do that... with amputated limbs, and – and bad joints because that’s what they enjoy doing. People do that because they need an income.
Q. Yeah. But – okay, how about this? Would you agree with me that whatever it is that you found, this muscle spasm.
A. Yes. Was it enough to put him off work?
Q. Right.
A. No, I don’t think so.
Q. Okay. And it wasn’t enough – if I tell you he was playing soccer, it’s not enough to prevent him from playing soccer? Right?
A. Maybe playing goalie.
Q. Okay.
But if he enjoys doing that, he can still function.
Q. Right.
A. But it – it’s there. But people learn to get on with their lives.
Q. Right. So it’s not disabling, this muscle spasm?
A. No.
Q. No.
A. I don’t think so.
Q. Okay. Did he talk to you about going to the gym or working out or anything like that?
A. I don’t remember that.
Q. Okay. And you made the diagnosis, I take it, without any information about his EMG, or carpal tunnel diagnosis? The neurological stuff you’d leave to...
A. Yes, I…
Q. …whoever was in charge?
A. I had enough findings...
Q. To find a muscle spasm?
A. ...to say my clinical diagnosis is yes, his main symptom is his back, but there’s something else going on...
Q. Right.
A. …which needs to be looked at.
Q. Okay. And so you don’t – you made the diagnosis not knowing that further doctors around the road may have looked at them as being two separate things? Unrelated?
A. Yeah.
Q. Right? Okay. And again, for someone playing soccer and working in construction, and he went back – he went back to work the next season but at Home Building Centre. Again, you agree with me, that whatever this muscle spasm is, it’s non-disabling, wouldn’t prevent someone from working? [Emphasis added.]
[10] At this point, the respondent’s counsel objected and the trial judge addressed the objection to this question. The trial judge decided to allow the respondent’s counsel to re-examine Dr. Mussett.
[11] On re-examination Dr. Mussett was asked, “Over the course of your assessment, what if any energy did you direct towards considering Peter St. Marthe’s ability to work or inability to work?” He replied, “It would be a part of my general history, but not much more than that, if there’s no specific question geared towards that, which there wasn’t.”
[12] The respondent’s counsel brought a motion for an order discharging the jury. The respondent took the position that notwithstanding his right to re-examine, the cross-examination was seriously unfair, unexpected and elicited opinion evidence from Dr. Mussett on matters that were not included in his report. The respondent claimed this irreparably damaged the respondent’s principal claim that he was no longer able to work in construction.
[13] After hearing the re-examination and the parties’ submissions on the motion for an order discharging the jury, the trial judge issued an order discharging the jury. At the conclusion of the trial, he awarded the respondent damages in the amount of $205,662.23 plus interest, costs and disbursements.
The Issues: Improper Cross-Examination and Discharge of the Jury
[14] The central issues on appeal are (i) whether the trial judge erred in ruling that counsel for the appellant improperly elicited inadmissible opinion evidence from Dr. Mussett with respect to the respondent’s ability to work, and (ii) whether the trial judge erred in discharging the jury.
The Parties’ Positions
[15] The appellant claims that counsel is awarded wide latitude in conducting cross-examination and this should not change just because a witness is a non-party expert.
[16] The appellant claims that Dr. Mussett expressed an opinion during his cross-examination that was based on his assessment of the respondent’s accident-related impairments, including the degree to which he believed the respondent’s spasms were disabling. As such, the cross-examination of Dr. Mussett was not improper. Moreover, even if the opinion exceeded the bounds of Dr. Mussett’s assessment, a corrective instruction would have sufficed.
[17] The appellant claims the right to trial by jury is a substantive right that should not be lightly interfered with and there was no basis in this case to discharge the jury. As such, he claims the trial judge erred in discharging the jury and seeks a new trial.
[18] The respondent claims that the cross-examination of Dr. Mussett, in which Dr. Mussett was asked, “this muscle spasm… it’s not disabling, wouldn’t prevent someone from working?” was improper. The respondent claims (i) it went beyond the scope of admissible opinion evidence of a non-party expert, as the opinion was not formed or expressed during his involvement with the respondent and it was not contained in his report, (ii) it elicited opinion evidence that had not previously been disclosed and amounted to trial by ambush; and (iii) its probative value was outweighed by its prejudicial effect and as such, it was not admissible: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 23-24.
[19] The respondent also claims the trial judge’s discretionary decision to discharge the jury warrants appellate deference. The trial judge witnessed the impact of Dr. Mussett’s evidence and considered the effect of cautioning the jury about the conduct of appellant’s trial counsel a second time. His decision to discharge the jury was not an error. As such, the respondent claims the appeal should be dismissed.
Analysis of the Issues
The First Issue: Whether the trial judge erred in ruling that counsel for the appellant improperly elicited inadmissible opinion evidence from Dr. Mussett
[20] In addressing whether the trial judge erred in ruling that appellant’s counsel elicited inadmissible evidence from Dr. Mussett, I will review the limits placed on non-party experts in giving opinion evidence and then apply the legal principles to this case.
The Law of Expert Testimony
Expert Opinions Generally
[21] In civil proceedings, experts retained by a party to testify in a proceeding must prepare an expert report to be shared with all parties prior to trial. This is provided for in r. 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. These experts are referred to as “litigation experts”: Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721, at para. 6, leave to appeal refused, 36445 (October 29, 2015) and 36451 (October 29, 2015).
[22] The expert report includes an outline of the litigation expert’s opinion and anticipated testimony. This sets limits on the expert testimony that may be given and ensures that all parties have proper notice of the roadmap for the opinion evidence to be provided: Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 584, at para. 62, leave to appeal refused, [2017] S.C.C.A. No. 343. The report also includes an acknowledgment of the expert’s duty: Imeson v. Maryvale (Maryvale Adolescent and Family Services), 2018 ONCA 888, 143 O.R. (3d) 241, at para. 60, leave to appeal refused, [2019] S.C.C.A. No. 35.
[23] Litigation experts are distinguished from non-party experts. In Westerhof, at paras. 60-62, this court defined a participant or non-party expert as “a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation”. Non-party experts are subject to different rules than litigation experts.
Non-Party Expert Evidence
[24] Non-party medical experts such as Dr. Mussett who have special skill, knowledge, training, or experience, may give opinion evidence for the truth of its contents provided the opinion is given as part of the exercise of their skill and knowledge while observing or participating in the events at issue, the opinion is not a “complex vocational opinion requiring highly specialized expertise”, and it was disclosed to the opposing party: Westerhof, at paras. 60-62, 165.
[25] Non-party expert opinions are usually contained in clinical notes and records, or reports prepared for the purpose of consultation and treatment: Imeson, at paras. 61-63.
[26] A non-party expert need not provide a r. 53.03 expert report, where the opinion is based on the witness’s observation of or participation in the events at issue and the opinion was formed as part of the exercise of skill, knowledge, training, and experience while observing or participating in the events: Westerhof, at para. 60.
[27] One reason the requirement to provide a r. 53.03 expert report does not generally apply to non-party experts, is that disclosure problems do not exist in relation to the opinions of non-party experts requiring that they comply with r. 53.03. Non-party experts typically prepare documents summarizing their opinions contemporaneously with their involvement in the events. These summaries, or the expert’s notes and records, can be obtained through the discovery process: Westerhof at para. 85.
[28] Where the opinion evidence extends beyond the witness’s observation of or participation in the events and the opinion was not formed while observing the events, the expert must comply with the requirements in r. 53.03 with respect to the portion of the opinion that exceeds these limits: Westerhof, at para. 63. Rule 53.03 provides that experts must include the instructions given, a summary of the opinion, and the reasons for the opinion, among other requirements.
[29] Problems arise where disclosure of an opinion of a non-party expert is given only on the eve of or during the trial: Westerhof, at para. 90.
[30] It is not an error for a trial judge to prevent a non-party expert from giving opinion evidence that goes beyond the expert’s observations and comments in the original report if the opinion was not disclosed well in advance of trial: Hoang v. Vicentini, 2016 ONCA 723, 352 O.A.C. 358, at para. 30.
The Judge’s Role in the Admission of Evidence
[31] In White Burgess, the Supreme Court established a two-part framework for admitting expert evidence. First, the court must assess whether the opinion evidence meets the threshold requirements of admissibility: relevance, necessity, absence of an exclusionary rule, and has been provided by a properly qualified expert: White Burgess, at para. 23; see also R. v. Mohan, [1994] 2 S.C.R. 9, at pp. 20-25. If it does, the court engages in a discretionary analysis to determine if its probative value outweighs its prejudicial effect: White Burgess, at para. 24.
[32] As part of its gatekeeper function, the court may exclude evidence from a non-party expert if it does not meet the test for admissibility: Westerhof, at para. 64; Imeson, at para. 83.
Analysis of the Evidence in This Case
[33] As a non-party expert, Dr. Mussett’s evidence was limited to his opinions based on the skill and knowledge he exercised while observing the respondent during his one and only assessment of the respondent in 2014, four years before trial.
[34] In 2014, Dr. Mussett determined that the respondent’s “symptoms impair his ability to use his back and right arm with any strenuous activity. This has resulted in the inability to perform expected duties at work without experiencing pain and discomfort. It has also resulted in the inability to partake in recreational activities without experiencing pain and discomfort.”
[35] At no time prior to his cross-examination at trial was Dr. Mussett asked to assess the respondent’s ability to return to work. Nor were there any notes or records of any such opinion being sought or offered at any other time prior to trial.
[36] In the appellant’s counsel’s cross-examination of Dr. Mussett at trial, counsel sought, and Dr. Mussett gave, opinion evidence for the first time, that the respondent’s muscle spasm condition was not enough to prevent him from working and was not disabling.
[37] By the time he gave his testimony, not only had Dr. Mussett not seen the respondent for four years, he had not reviewed any medical documentation since that time, and his opinions were therefore limited to information he had at the time of his one-time assessment in 2014.
[38] Because the opinion went beyond the scope of the assessment and observation, the court could have required Dr. Mussett, as a non-party expert, to comply with r. 53.03 with respect to the portion of his opinion extending beyond the scope of his role: Westerhof, at para. 64.
[39] However, because there was no indication before his cross-examination that this opinion would be solicited from Dr. Mussett, he could not be ordered to comply with r. 53.03 with respect to the portion of his opinion evidence extending beyond the limits of his role as a non-party expert. This evidence was elicited in front of the jury.
[40] Dr. Mussett’s opinion about the respondent’s ability to return to work was not probative as, unlike other litigation experts who gave opinion evidence at trial, it was not based on a current assessment of the respondent’s accident-related impairments as Dr. Mussett had not seen the respondent for four years or reviewed his medical records.
[41] On the other hand, his opinion was very prejudicial, as it addressed the central issue at trial of the respondent’s past and future income loss which was contingent on the jury’s assessment of his ability to work and disability and went beyond the scope of his assessment in December 2014. Dr. Mussett was also determined by the trial judge to be an impressive witness and was perceived as a neutral and impartial expert.
[42] Therefore, the prejudicial effect of Dr. Mussett’s evidence on the respondent’s employability and disability exceeded its probative value, and it did not meet the White Burgess test for admissibility.
[43] The trial judge therefore appropriately determined that the cross-examination was improper. He allowed re-examination of Dr. Mussett and then assessed whether the re-examination undid the damage caused by the cross-examination or whether he needed to fashion another remedy.
The Second Issue: The Trial Judge’s Decision to Discharge the Jury
[44] After considering the matter, the trial judge decided to discharge the jury.
[45] In determining whether the trial judge erred in so doing, I will first review the law regarding trial judges’ exercise of discretion to discharge a jury and then apply the legal principles to this case.
The Law on Discharging a Jury
[46] The right to a jury trial is a substantive right: Cowles v. Balac (2006), 273 D.L.R. (4th) 596 (Ont. C.A.), at para. 36. After deciding that a particular reference before a jury is prejudicial, the trial judge must determine whether the prejudice is so severe that specific instructions cannot dispel that prejudice. The jury should only be discharged if the prejudice cannot be cured. In most cases, the trial judge will be able to fashion a remedy short of discharging the jury: Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, [1997] 1 S.C.R. 1092, at paras. 17, 23.
[47] Discharging a jury is a “drastic remedy”: Brady v. Lamb (2005), 78 O.R. (3d) 680 (C.A.), at para. 13.
[48] However, a trial judge’s decision to discharge a jury is a discretionary decision that will not be interfered with on appeal unless it “was exercised arbitrarily or capriciously or was based upon a wrong or inapplicable principle of law”: Cowles v. Balac, at paras. 36-42, leave to appeal refused, [2006] S.C.C.A. No. 496, citing Kostopoulos v. Jesshope (1985), 50 O.R. (2d) 54 (C.A.) at p. 69, leave to appeal refused, [1985] S.C.C.A. No. 93.
Analysis of the Evidence Regarding the Decision to Discharge the Jury in This Case
[49] The trial judge articulated clear and cogent reasons for discharging the jury. He held that “trial fairness dictates that the jury be discharged and the trial continue before me alone” because:
i. Dr. Mussett was a “most impressive” witness whose evidence “would have had a significant impact” on the jury;
ii. He was seen as a neutral non-party expert, supportive of the respondent (in that he approved his Treatment and Assessment Plan for additional treatment), which would add to his credibility about the extent of the respondent’s disability and employability;
iii. The appellant’s counsel at trial gave no advance warning that she would, in effect, treat Dr. Mussett as a litigation expert and solicit opinions beyond the scope of his report. If she had given notice, a voir dire would have been held on the scope and admissibility of his assessment, and the trial judge could have given a mid-trial instruction;
iv. His opinion evidence on cross-examination at trial that the respondent could work in the construction industry could have a serious adverse impact on the respondent’s central claim for past and future income loss, based on his employability as a construction worker; and
v. If the trial judge gave a corrective instruction, it would have to be a strong one, and he would have to comment on the conduct of trial counsel for the appellant. This would be his second instruction about her conduct and might cast the counsel in an unfavourable light with the jury, causing the jury’s view of her for the balance of the trial to be unfairly compromised. The trial judge determined that granting a mistrial would cause significant delay.
[50] He therefore concluded that Dr. Mussett’s opinion evidence could have a “serious adverse impact” on the case. He held that, “Dr. Mussett’s evidence was simply too impactful for the jury to disregard it and it would inevitably influence their assessment of the other expert testimony in this case” and that justice to the parties would be best served by discharging the jury and continuing the trial before him alone.
[51] The trial judge was in the best position to assess the potential effect of Dr. Mussett’s testimony on members of the jury in respect of the respondent’s claim for past and future income loss.
[52] Policy concerns about the importance of giving notice of evidence to be called and the avoidance of trial by ambush, articulated in Ault v. Canada (Attorney General) (2007), 50 C.P.C. (6th) 316 (Ont. S.C.), at para. 22, are also present in this case.
[53] I see no basis to interfere with the trial judge’s discretionary decision to discharge the jury.
Conclusion
[54] For the above reasons, I agree that Dr. Mussett’s evidence exceeded the bounds of admissible non-party expert opinion evidence.
[55] Unlike the expert evidence discussed in Westerhof, Dr. Mussett’s opinion was not formed at the time of his treatment of the respondent; it was expressed for the first time on cross-examination at trial. Dr. Mussett could not meaningfully assess the respondent’s ability to work as at the time of trial he had not seen the respondent for four years and had not been provided with any medical documentation and his opinion at the time of trial therefore extended beyond the scope of his observations at the time of his assessment. That testimony would have been central to the outcome of the trial on the issue of damages. The prejudicial effect of Dr. Mussett’s evidence therefore exceeded its probative value.
[56] As the evidence had already been adduced in front of the jury, and as the judge had already given another, unrelated instruction concerning the conduct of counsel for the appellant, the trial judge appropriately determined that it could not be cured by a corrective instruction. For these reasons, I see no error in the trial judge’s exercise of his discretion to discharge the jury and continue with a trial by judge alone and I would dismiss the appeal.
[57] Costs to the respondent in the amount of $23,338 as agreed by the parties.
Released: November 8, 2021 “P.R.” “J.A. Thorburn J.A.” “I agree. Paul Rouleau J.A.” “I agree. Alexandra Hoy J.A.”
