SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-06-315832-0000
DATE: 2012 02 28

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: February 21, 2012

RULING

[ 1 ] During the course of this trial, an issue arose about the ambit of the testimony of the engineer retained by the Plaintiffs, James Hrycay [“Hrycay”] who has authored two reports in this matter: February 22, 2011 and November 14, 2011. Because the testimony of Hrycay was imminent, I delivered oral reasons and indicated that I would release more fulsome written reasons later.

[ 2 ] This is a claim for damages for injuries sustained by the infant Christopher Hoang when he was struck by the motor vehicle operated by the defendant Adriano Vicentini [“Vicentini”]. Both liability and damages are in issue.

[ 3 ] The solicitor for the Plaintiffs wishes to have Hrycay qualified as an expert in accident reconstruction, entitled to provide the Court with an opinion in a number of areas. Specifically, the solicitor for the Plaintiffs seeks to elicit opinion evidence from Hrycay on the performance of the brakes during the collision of August 4, 2004 as well as to offer opinion evidence on perception/reaction times of drivers, known as human factors evidence. This is objected to by the solicitors for the Defendants.

[ 4 ] A voir dire was held and counsel made submissions to the Court in the absence of the jury.

The Brakes Issue

[ 5 ] In the body of his initial report, Hrycay stated that he reviewed the inspection of the Vicentini vehicle that was done by the police mechanic following the accident, along with the police photographs and the investigation file. He noted that while the police mechanic identified the friction material on the brakes as being unsatisfactory, he did not indicate on the form he completed whether this condition was present prior to the collision. Taking into account his own knowledge and experience, Hrycay concluded that the wearing of the brake linings was likely present prior to the motor vehicle accident. While Mr. Macdonald conceded that Hrycay did not specifically state that the condition of the brakes was a contributing factor to the accident, he argued it was implicit from the fact that Hrycay did not use the deceleration rate used by the police reconstructionist. He submitted that the evidence of Hrycay on the condition of the brakes is relevant and ought to be admitted and that an expert is permitted to testify beyond the four corners of his report: Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 2000 16946 (ON CA) , 51 O.R. (3d) 97 (C.A.). Finally, it was argued that the police inspection document was reviewed and relied on by Hrycay in coming to his opinion and, therefore, he ought to be allowed to testify on the brakes issue. It is submitted that it is obvious from reading the report that the brakes played a role in the occurrence of the collision and given his expertise, Hrycay ought to be able to offer his opinion on causation with respect to the brakes to this Court.

[ 6 ] The defence objects, arguing that nowhere in the body of either report delivered by Hrycay is an opinion offered as to the effect of the deficiencies noted in the mechanical inspection on the overall functioning of the brakes. It is submitted that while Hrycay stated in his first report that the friction material on the brakes was unsatisfactory, he did not state that this had any causative effect and to permit him to do so during the trial is unfair to the defence. Further, it is submitted that Hrycay ought not to be able to tell the Court his conclusion about the condition of the brake linings at the time of the accident as there is a danger that this might be misinterpreted by the jury.

[ 7 ] Hrycay was retained by the solicitor for the Plaintiffs in 2009 to provide an “engineering analysis of the accident” and to provide an opinion on the cause of the collision. In so doing, Hrycay was provided with 30 items including the police investigation and photographs, the Toronto Police Collision Reconstruction Report, and the mechanical inspection done by the mechanic Grisolia. His report focuses on the opportunity to avoid the collision that Vicentini had.

[ 8 ] His initial report lists nine conclusions, including the speed he believes Vicentini was travelling at when he entered the intersection, the type of brake application that was used when the hazard was observed, and the appropriate level of awareness that ought to have been present given the prevailing conditions. Although in point 9, Hrycay states that “[H]ad Mr. Vicentini applied his brakes at the maximum rate when the emergency first began with the appearance of the hat, he would have been able to bring his vehicle to a complete stop prior to or at the start of the skid marks and would have thereby avoided striking Christopher.” Nowhere in the body of the report does Hrycay offer the opinion that the condition of the brakes led to a longer braking time or otherwise affected Vicentini’s ability to bring his vehicle to a stop and avoid hitting Christopher. While he does offer his opinion on the brake friction material and the condition of the front brake pads, his report is silent on what effect those conditions had on Vicentini’s ability to slow or stop his car. The Marchand case, supra , does not assist counsel because in that case, the Court noted that while it was permissible for an expert to amplify the contents of the expert’s report at trial, he or she could not open up a new field that was not referred to in the report. To allow Hrycay to opine on the functioning of the brakes would be opening up a new field, to borrow language from the Court in Marchand . Furthermore, the law has developed significantly in the area of expert opinion since the time of that decision and the requirements of the contents of expert reports are more specific.

[ 9 ] While Mr. Macdonald argues that this conclusion is implicit from the contents of his report and, specifically, the fact that he used a range of deceleration instead of the number used by the police investigator, I do not accept this argument. A plain reading of the Hrycay report does not, to my mind, yield the conclusion that the state of the friction material on the front brakes contributed in any way to the collision. That opinion was open to Hrycay, particularly given that he had all of the documentation including the mechanic’s inspection back in 2009. Furthermore, he delivered a supplementary report after reviewing the defence engineering opinion. He had the opportunity at that time to address the functioning of the brakes if he felt they were a contributing factor to the accident and there is nothing in the second report dealing with the brakes.

[ 10 ] Rule 53 of the Rules of Civil Procedure , R.R.O. 1990, reg. 194 (“the Rules ”) specifically requires an expert to set out his or her opinion including the factual basis upon which it rests. It is not the job of the Court to search around in the body of an expert report and try and ascertain all of the “implicit” opinions contained in it.

[ 11 ] One of the purposes of the amendments to Rule 53 was to ensure that the expert clearly sets out the opinion, the basis for it and the documentation that was relied upon in arriving at that opinion, so that opposing counsel can easily understand the opinion of the expert and how it was arrived at. The Hrycay report cannot, by any stretch of the imagination, be seen to contain the opinion that the condition of the brakes caused or contributed to the motor vehicle accident. This is not a situation where a new document was produced that arguably modified the expert’s opinion; it is clear that the police investigation file including the mechanical inspection was available and sent to Hrycay after his retainer and many months prior to the completion of his initial report.

[ 12 ] I do not accept the argument that what counsel wishes Hrycay to do is to amplify or expand on his opinion as set out in the report. Hrycay’s report clearly lists nine conclusions that he arrives at in this file and the operation of the brakes is not identified as one of the conclusions. To permit him to now offer this opinion to the Court would be a contravention of the requirements of Rule 53. While the Court clearly has discretion to admit evidence that does not strictly comply with Rule 53, there is no basis on which to do so on the facts of the case before me. Hrycay shall not offer an opinion to this Court on the area of what effect the two unsatisfactory items in the braking system had on the function of the brakes on Vicentini’s car on the day of the accident.

The Human Factors Issue

[ 13 ] Counsel for the Plaintiffs submit that in the course of his education and work history, Hrycay has developed an expertise in the area of perception/reaction time and ought to be able to comment on this area at trial. It was noted that Hrycay did not comment on the opinion of Dr. Droll, the human factors expert retained by the Plaintiffs and there would be no duplication in the evidence. This is objected to by counsel for the Defendants because Dr. Droll was already qualified to give evidence in the area of human factors and it is simply unnecessary and repetitious for Hrycay to do so as well.

[ 14 ] At the outset of the trial, the solicitor for the Plaintiffs was granted leave by this Court to call more than three expert witnesses on the basis that their areas of expertise were distinct. In my ruling, I specifically commented that there ought not to be any duplication of evidence as a result of the Plaintiffs being granted leave. While I appreciate that in coming to the conclusions that he expresses in his report, Hrycay may have to rely on his own experience in perception/reaction times, that is permissible in much the same way as an emergency room physician might have to rely on his or her own experience in a certain area when coming to a diagnosis of a patient who presents in the emergency ward. The Plaintiffs called Dr. Droll as a human factors expert and he testified at length about the perception/reaction time of humans in different circumstances. To have Hrycay opine on the same issues is not only repetitious and a duplication of other testimony, he is not qualified in the same manner as Dr. Droll was to do so. If Hrycay had different views on the perception/reaction time than Dr. Droll, it was open to the Plaintiffs to have him deliver a supplementary report commenting on the opinion of Dr. Droll and how, if at all, the Droll report was relied on by Hrycay. This was not done.

[ 15 ] If it was the intention of the solicitor for the Plaintiffs to elicit expert opinion from Hrycay on human factors issues, then it is unclear on what basis the expert testimony of Dr. Droll would have been necessary. Simply because an expert has a specialty in a particular area that is of assistance to the Court does not entitle him or her to offer opinion evidence in other areas which they may have had some exposure to in the course of their training or career; this sort of evidence is of little probative value, particularly when leave has been granted to permit a qualified expert to assist the Court in that regard. Hrycay shall not be permitted to offer expert opinion on human factors issues during his testimony.

[ 16 ] Hrycay shall be qualified before this Court as an engineer with an expertise in accident reconstruction and entitled to offer opinion evidence in this area.

D.A. Wilson J.

Date: 2012 02 28