SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-06-315832-0000
DATE: 2012 02 14

RE: Christopher Hoang and Danielle Hoang, both minors by their Litigation Guardian, San Trieu and San Trieu, personally , Plaintiffs

AND:

Adriano Vicentini, Ford Credit Canada Leasing Company and Can Hoang,

Defendants

BEFORE: Madam Justice Darla A. Wilson

COUNSEL:
D. MacDonald, M. Bennett and R. Ben , Counsel for the Plaintiffs

D. Zuber , Counsel for the Defendant, Adriano Vicentini

T. McCarthy , Counsel for the Defendant, Can Hoang

B. Mitchell , Counsel for the Defendant, Ford Credit Canada Leasing Company

HEARD: 10 January 2012

ENDORSEMENT

[ 1 ] After the selection of the jury for this four to five week trial, I was asked to deal with various motions. The Plaintiffs served several motions on December 30, 2011, in advance of the scheduled trial date of January 9, 2012. By way of background, this is a claim for personal injuries sustained by the infant Christopher Huang (“Christopher”) stemming from a motor vehicle accident in which he was involved on August 6, 2004. Liability is in dispute as well as damages.

[ 2 ] The Plaintiffs bring a motion for leave to call more than three expert witnesses at the trial. I was advised that the Plaintiffs wish to call experts in three categories: (1) eight or nine “hired guns” or experts retained for the purposes of providing an expert opinion at trial; (2) six treating practitioners of the infant; and (3) two third party experts. It is asserted all of the experts are necessary for the proper presentation of the Plaintiffs’ case and there is no overlap in their anticipated testimony.

[ 3 ] In the first category, counsel for the Plaintiffs wishes to call: James Hrycay, engineer; Jason Droll, human factors expert; Sergio Grisolia, police mechanic; Dr. Perry Cooper, neuroradiologist; Dr. Elaine McKinnon, neuropsychologist; Ann Bedard, occupational therapist who, along with Dr. Gillett, neurologist, did an assessment of the infant; Dimple Mukherjee, life care planner; Susan Fraser, occupational therapist; and Professor Jack Carr, economist.

[ 4 ] In the second category, the solicitor for the Plaintiffs seeks to call various treating practitioners: Patty Young, speech language pathologist; Natalie Zaraska and Susan Fraser, occupational therapists; Paul McCormack, rehabilitation support worker; Dr. VanDeursen treating psychologist; and Dr. Peter Rumney, treating pediatrician.

[ 5 ] In the last category, the solicitor for the Plaintiffs wishes to call Rhona Feldt-Stein, an occupational therapist who did assessments for the accidents benefits insurer in 2008 and 2010.

[ 6 ] It is submitted by the solicitor for the Plaintiffs that this is a complex medical case involving an infant and it is imperative that the jury be provided with all of the necessary medical evidence in order for them to understand the nature and extent of the infant’s brain injury. Further, a significant component of the claims of the Plaintiffs is the claim for future care costs. The expert retained by the Plaintiffs to quantify this aspect of the damages, Dimple Mukherjee, considered and relied upon the various reports of the occupational therapists and therefore, in order for there to be a proper foundation for the expert opinion of Ms. Mukherjee, the opinions of the various treatment providers on which she relied must be in evidence before the Court.

[ 7 ] The defence takes the position that the number of experts the Plaintiffs wish to call at trial constitutes overkill. It is unnecessary, it is submitted, to have more than one expert in a particular area give opinion evidence. To permit the Plaintiffs to call several experts in one specialty in a jury case is unfair as it may suggest to the jury that the defence case is weaker because of the number of experts it calls.

Analysis

[ 8 ] Section 12 of the Evidence Act, R.S.O. 1990, c.E.23 provides for the calling of expert witnesses at trial:

Where it is intended by a party to examine as witnesses persons entitled, according to the law or practice, to give opinion evidence, not more than three of such witnesses may be called upon either side without the leave of the judge or other person presiding .

[ 9 ] In Burgess (Litigation guardian of) v. Wu [1] Justice D. Ferguson articulated the various factors for the Court to consider when leave is sought under section 12 :

(a) Whether the opposing party objects to leave being granted;

(b) The number of expert subjects in issue;

(c) The number of experts each side proposes to have opine on each subject;

(d) How many experts are customarily called in cases with similar issues;

(e) Whether the opposing party will be disadvantaged if leave is granted because the applying party will then have more experts that the opposing party;

(f) Whether it is necessary to call more than three experts in order to adduce evidence on the issues in dispute;

(g) How much duplication there is in the proposed opinions of different experts;

(h) Whether the time and cost involved in calling the additional experts is disproportionate to the amount at stake in the trial.

In my view, points (f) and (g) merit particular scrutiny in this case.

[ 10 ] I am mindful of the Plaintiffs’ right to put their case forward as it sees fit but this is not without restriction. I agree with the comments of Justice D. Ferguson in Gorman v. Powell [2] where he noted,

…Longer trials caused by calling unnecessary experts use up scarce resources and deny early trials to other litigants. To ignore the policy underlying s. 12 is contrary to the modern philosophy of civil litigation which is set out in Rule 1.04:…to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[ 11 ] In the case before me, I note that both liability and damages are hotly contested. The Plaintiff is an infant who sustained a head injury in the accident and it is the sequelae arising from this injury that are in dispute. I have no difficulty in granting leave to the Plaintiffs to call more than three expert witnesses at this trial; the difficulty lies in determining how many more than three the Plaintiffs ought to be permitted to call. The provisions of the Evidence Act are restrictive, intended to limit the number of experts who testify at a trial. Simply because an expert has authored a report that complies with the requirements under the Rules of Civil Procedure , R.R.O. 1990, reg. 194 does not automatically entitle a party to call that individual to give expert opinion at trial. The evidence must be necessary and not repetitive of other testimony from other experts.

[ 12 ] In recent times, judges have been cautioned about their role as a gatekeeper at trials. Justice Stephen Goudge in his report “Inquiry into Pediatric Pathology in Ontario” [the “Goudge Report”] [3] emphasized the need for trial judges to be vigilant when admitting expert testimony, to scrutinize the necessity and validity of a proposed expert’s testimony before determining if it ought to be admitted. This is not a new concept as it has always been the function of the trial judge to determine the admissibility of evidence. The Supreme Court of Canada has said [4] , “…The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties can go at the end of the day to weight rather than admissibility…”

[ 13 ] I agree with the comments of Justice Todd Ducharme in Dulong v. Merrill Lynch Canada Inc. [5] where he stated,

There is no question that, in civil cases at least, the path of least resistance in matters such as these seems to be to admit the evidence and then compensate for any of its weaknesses by attaching less weight to the opinion. But such an approach is an abdication of the proper function of the trial judge…

[ 14 ] The evidence on liability from Mr. Hrycay and Mr. Droll is clearly necessary and the defence did not object to these experts being permitted to testify. Similarly, Professor Carr, the economist, shall be allowed to give expert testimony. Counsel for the Plaintiff wishes to elicit opinion evidence from Mr. Grisolia, the police mechanic who filled out a vehicle mechanical examination in the course of his duties on August 9, 2004. The two page form that was completed identifies Mr. Grisolia’s findings but does not set out any opinion. Mr. Grisolia noted on the form that the front calipers sliders seized [unsatisfactory] and the friction material [unsatisfactory]. He does not describe the effects of the two items he deemed unsatisfactory nor does he comment on the function of the brakes themselves. Counsel for the Plaintiffs concedes this point, but submits that in speaking with the officer in preparation for trial, he was advised of Mr. Grisolia’s opinion on the brakes of the Vicentini car. After learning this, counsel sent a brief synopsis of the evidence of Mr. Grisolia, including his opinion on the function of the brakes. Counsel for the Plaintiffs argued that Mr. Grisolia has evidence that is relevant and material to the issues in this lawsuit and there is no other way to get that evidence before the Court other than to have him testify and state his opinion.

[ 15 ] I do not agree. The Rules of Civil Procedure have very specific provisions for the inclusion of expert testimony at trials and the 2010 amendments to the provisions governing expert reports provide for more stringent requirements before an expert is permitted to testify. No report from Mr. Grisolia that complies with Rule 53.03 has been tendered and there is no evidence before me of any attempts made by the solicitor for the Plaintiffs to secure an opinion from Mr. Grisolia on the brakes on the Viscentini car in a form of a report that complies with Rule 53. There is nothing in the document that he completed in 2004 that sets out his opinion. What he has done is to examine the various items listed on the document and tick off the appropriate box to indicate whether the component met the Ministry standards or not. I do not say this in a critical fashion; this is the document that Mr. Grisolia is required to fill out by the police when he inspects a vehicle that has been involved in a collision. The document, however, is deficient in terms of providing the minimum information that is contemplated by Rule 53 for expert reports. I have no information as to what qualifications Mr. Grisolia has, apart from the fact that he was employed by the police to do mechanical inspections of vehicles. I do not know if he has the proper qualifications to even permit him to be qualified as an expert at trial.

[ 16 ] In my view, on the basis of the document he completed on his inspection of the vehicle, I am not prepared to permit him to give expert testimony at this trial. To do so, in my opinion, would contravene the requirements of Rule 53 and would flout the reasoning giving rise to the amendments to the Rules governing expert evidence. The fact that the solicitor for the Plaintiff has provided a synopsis of his expected testimony does not, in my mind, get around the problems with Mr. Grisolia offering an expert opinion to this Court. Furthermore, no unfairness to the Plaintiffs will result as a consequence of my ruling. Counsel has retained an engineer who has delivered a report that complies with Rule 53 and he, presumably, will testify on the liability issues. On the other hand, to permit Mr. Grisolia to testify at this trial and to provide his opinion on the function of the brakes on the Viscentini vehicle at the time of the collision would be manifestly unfair to the defendants Viscentini and Ford Credit when the performance of the brakes has not been an issue in this lawsuit and no expert has opined on this to date.

[ 17 ] I turn now to the medical/rehabilitation witnesses. Dr. Cooper is a neuro-radiologist, which is a different type of specialty than a neurologist. He will testify about the various imaging studies that he reviewed and their significance. The neuro-psychologist, Dr. McKinnon, possesses a different expertise than the treating psychologist Dr. VanDeursen. While there may be some overlap in the evidence of Dr. McKinnon and Dr. VanDeursen, that is something the Court can control. I would not expect that there would be much duplication in their evidence and to deprive the Plaintiffs of their ability to elicit evidence from these two different specialists would not be fair in the circumstances.

[ 18 ] Dr. Rumney is a paediatrician who has a specialty in the area of head injuries involving children. Patty Young is a speech language pathologist. Dimple Mukherjee has delivered a report quantifying the future care costs. In my opinion, all of these proposed witnesses have a specific area of specialty and leave ought to be granted to the solicitor for the Plaintiffs to call these individuals if he chooses to do so.

[ 19 ] Counsel for the Plaintiff wishes to call Ann Bedard, an occupational therapist who, together with Dr. Jane Gillett, authored a report dated May 14, 2010. I am advised that Dr. Gillett has passed away. Counsel wishes to call Ms. Bedard to testify. A review of the report makes it clear that Ms. Bedard spoke with Christopher’s school. The parents were interviewed, although it is not clear by whom. An examination and functional assessment was carried out, presumably by Dr. Gillett, although that is not certain.

[ 20 ] The report concludes with a summary and recommendations signed by both Dr. Gillett and Ms. Bedard. Counsel for the Plaintiffs has indicated he intends to call Dr. Daune MacGregor, a pediatric neurologist who assessed the infant on behalf of the Defendant Viscentini and delivered an expert report. He intends to call other occupational therapists to give evidence. In my view, particularly in light of the fact that Dr. Gillett has died and the problems that creates in and of itself, I am not persuaded it is necessary to have Ms. Bedard testify and leave is not granted.

[ 21 ] The Plaintiffs propose to call Natalie Zaraska and Susan Fraser, both occupational therapists. Ms. Zaraska provided treatment commencing in 2005 and various reports, the most recent of which is December 2011. Ms. Fraser appears to have been retained in 2010 and provided reports dated April, July 2010 and December 2011. In my view, there is significant duplication in the proposed evidence of these two occupational therapists and it is not necessary that both be called to give testimony at the trial. One of the occupational therapists may be called in the discretion of counsel for the Plaintiffs.

[ 22 ] The solicitor for the Plaintiffs advises he wishes to call Paul McCormack, the owner/operator of Elements Support Services. According to his resume, this organization provides rehabilitation support workers to people recovering from an acquired brain injury. Various reports from 2010 and 2011 have been produced, signed by the rehabilitation support worker Mavis Lee and the clinical program manager James Gillam. None of the progress reports are authored by Mr. McCormack. The only document signed by Mr. McCormack is a letter dated December 8, 2011 to counsel in which he comments on the future care needs of Christopher. In doing so, he makes no reference to his own opinion, but rather states that “we” are concerned about future employability, and “we” have the impression he needs continuous supervision, etc. It does not appear Mr. McCormack was the hands-on worker providing treatment to the infant. It is unclear to me on what basis Mr. McCormack would be permitted to offer an expert opinion to the Court. The Plaintiffs intend to call other experts to opine on the issue of attendant care, employability and future needs. If what is sought are the views expressed in the December 2011 letter, in my opinion, this would be duplication of other expert evidence and therefore unnecessary. The solicitor for the Plaintiff is free to call the workers Ms. Lee and Mr. Gillam to testify about their involvement, as fact witnesses.

[ 23 ] Finally, I turn to the final proposed witness, Rhona Feldt-Stein, the occupational therapist that assessed the attendant care needs of the infant at the request of the first party insurer in 2008 and again in 2010. She completed a Form 1, indentifying the various levels of attendant care required. Quite apart from the issue of the fact that Ms. Feldt-Stein was retained by a different party for a different purpose, namely to provide an opinion on the reasonableness and necessity of attendant care items under the accident benefits legislation, her expertise and what she provides an opinion on is no different than that of the other occupational therapists, Ms. Zeraska and Ms. Fraser. There is significant duplication between the proposed evidence and it is unnecessary for Ms. Feldt-Stein to be called in addition to the other occupational therapist, who I have dealt with earlier in these reasons.

D.A. Wilson J.

Date: 2012 02 14

[1] Burgess (Litigation guardian of) v. Wu [2005] O.J. No. 929

[2] Gorman v. Powell [2006] O.J. No. 4233

[3] The Honourable Stephen T. Goudge, Commissioner, “Inquiry Into Paediatric Forensic Pathology in Ontario”, Ontario Ministry of the Attorney General: 2008

[4] R. v. J.-L.J. 2000 SCC 51 , [2000] 2 S.C.R. 600

[5] Dulong v. Merrill Lynch Canada Inc. (2006), 2006 9146 (ON SC) , 80 O.R. (3d) 378 (Ont.Sup. Ct.)