ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 54249
DATE: 2012/04/16

B E T W E E N:

PAMELA MICHIENZI

D. M. Bryce and M. Piekosz , for the Plaintiff

Plaintiff

• and -

JENNIFER KUSPIRA

W. G. Woodward and C. Ross , for the Defendant

Defendant

HEARD: April 12, 2012

GRACE, J. (Orally)

REASONS FOR RULING

[ 1 ] On April 2, 2012 counsel for the defendant served notice of intention pursuant to s. 52 of the Ontario Evidence Act to either file reports commissioned by and provided to Ms Michienzi’s accident benefit insurer or call their authors as witnesses. Counsel for Ms Michienzi objected to the introduction of any evidence from those persons.

[ 2 ] With the agreement of counsel, the issue was argued on April 12. At the end of the day I advised counsel of my decision and indicated that these reasons would be delivered at the commencement of proceedings on April 16, 2012. [1]

[ 3 ] This action follows an August 10, 2006 collision between a motorcycle ridden by Pamela Michienzi and an automobile driven by Jennifer Kuspira. Liability has been admitted. Damages are to be determined.

[ 4 ] The evidence in issue is summarized in reports provided to State Farm Mutual Automobile Insurance Company (the “accident benefits provider”) in June, 2009 by a neuropsychologist (Dr. Donald Young), a psychologist (Dr. Ken Scapinello), an orthopaedic surgeon (Dr. Garson Conn) and a certified vocational evaluator (Ms Ruth Billet). Dr. Young also authored a January 27, 2010 letter responding to a report provided to the plaintiff’s solicitors by neuropsychologist Dr. Michael Harnadek (collectively the “accident benefits reports”).

[ 5 ] The plaintiff asked that evidence from the authors of the accident benefits reports be excluded for four reasons: first, the accident benefits reports are not in compliance with rule 53.03 (2.1) 7; second, admission of the evidence would negatively affect trial fairness; third, the proposed evidence is irrelevant and fourth, admission would lead to duplication. I will deal briefly with each argument although in a different order than they were raised.

A. Relevance

[ 6 ] The plaintiff maintains the accident benefits reports are not relevant because they were prepared to address Ms Michienzi’s employability at a time when she was not working. Since Ms Michienzi is now gainfully employed and is not claiming any amount on account of a past income loss, the plaintiff argues testimony from the authors of the accident benefits reports is unnecessary.

[ 7 ] With respect, I am of the view the argument goes too far.

[ 8 ] Based on the limited evidence introduced to date, it is clear that determination of the issues requires a consideration of Ms Michienzi’s cognitive, emotional and physical state prior to and at every stage following the accident. As well, it appears the jury will be asked to consider whether it is more probable than not that Ms Michienzi would have achieved more than her current level of employment had the accident not occurred. In other words, did she have the potential to achieve something more but for the accident?

[ 9 ] While I agree that the conclusions with respect to Ms Michienzi’s ability to engage in any employment for which she is reasonably suited by education, training or experience are no longer relevant, tests were conducted and observations made by the authors of the accident benefits reports concerning Ms Michienzi’s cognitive, emotional and physical state in June, 2009 – roughly the midpoint between the accident and trial. In my view, their evidence concerning those matters is relevant to the issues raised and will be of assistance to the jury in understanding and determining the range, severity and duration of the effects of the accident on Ms Michienzi: Grigoroff v. Wawanesa Mutual Insurance Co., 2011 ONSC 2277 (S.C.J) at para. 21.

B. Rule 53.03

[ 10 ] The Rules of Civil Procedure require that expert witnesses to be called at trial sign an acknowledgement of expert’s duty in Form 53 (the “acknowledgement”). The parties recognize the requirement applies to reports caught by rule 53.03 (2.1) even if delivered before it came into force on January 1, 2010.

[ 11 ] If there is imperfect compliance, an expert witness may not testify except with leave of the trial judge: rule 53.03 (3).

[ 12 ] The authors of the accident benefits reports have not signed an acknowledgement. Indeed, it appears from the candid submissions made on behalf of the defendant that they were not asked to do so.

[ 13 ] The reason is this: McNeill v. Filthault, 2011 ONSC 2165 (“McNeill”) stands for the proposition that rule 53.03 does not apply to experts retained by or on behalf of non-parties to the litigation: see para. 39. The defendant argues the case is dispositive of this issue. Since the accident benefits reports were provided to the accident benefits provider who is not a party to this action, the defendant submits rule 53.03 (2.1) does not apply.

[ 14 ] Counsel for the defendant fairly acknowledged McNeill is in conflict with an earlier decision of this Court: Beasley v. Barrand (2010), 2010 ONSC 2095, 101 O.R. (3d) 452 (“Beasley”). In Beasley, Moore J. was faced with a similar fact situation and argument. He concluded rule 53.03 (2.1) applied to reports commissioned by and provided to a non-party (another accident benefits provider). In McNeill, MacLeod-Beliveau J. considered but rejected the analysis in Beasley.

[ 15 ] The issue may be ripe for appellate review but I offer these thoughts. Rule 53.03 applies to experts that a party “intends to call…at trial”: see rule 53.03 (1) and (2). A report prepared by any such person must comply with rule 53.03 (2.1). To me, the language is clear. The rule applies to every expert who is to testify at trial whether retained by a party or non-party.

[ 16 ] I recognize the conclusion in McNeill was reached, in part, based on language found in rule 4.1.01. I take a different view of its significance. Rule 4.1.01 imposes an obligation on “every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding” to be fair, objective and non-partisan.

[ 17 ] Rule 4.1.01 does not, with respect, qualify rule 53.03 (2.1). They appear in different locations for a reason. Rule 4.1.01 applies at every stage of the proceeding – from its commencement, through interlocutory stages and at trial. It is temporally broad but applies to a restricted group of experts.

[ 18 ] Rule 53.03’s application is confined to the trial stage of a proceeding. However, the range of experts contemplated by that rule is cast more broadly.

[ 19 ] Does the form of acknowledgement required by rule 53.03 (2.1) 7 alter that view? The answer is no. I reach that conclusion notwithstanding the fact paragraph 2 of the form starts with the words “I have been engaged by or on behalf of … ( name of party/parties )”. I understand why that language would give parties – and the court – a moment’s pause. However, the form does not – indeed I do not see how it could – modify the language of the rule which prescribes it. Indeed, the rules provide a ready answer to the dilemma. Rule 1.06(1) provides:

The forms prescribed by these rules shall be used where applicable and with such variations as the circumstances require . [Italics added]

[ 20 ] Form 53 can and should be modified when a party is contemplating calling an expert witness retained by a non-party at trial. Paragraph 2 can be changed to address situations like the one here: to correctly identify the person who engaged the proposed expert. In my view, the debate is an unnecessary one.

[ 21 ] McNeill contemplated the possibility the rule 53.03 analysis was flawed. MacLeod-Beliveau J. observed that non-compliance would have been excused if rule 53.03 applied to the non-party reports there in issue given the underlying factual situation: at para. 62. In my view, that was the appropriate approach and result: Grigoroff v. Wawanesa Mutual Insurance Co., supra, at para. 23.

[ 22 ] In light of my analysis, the defendant should have but has not complied with rule 53.03 (2.1). Should non-compliance be excused?

[ 23 ] For four reasons it should. First, the accident benefits reports have been in the parties hands for a substantial period of time. Counsel are clearly fully familiar with their contents. Second, the accident benefits reports appear to be mostly compliant with rule 53.03 (2.1) 1 through 6. Identity, specialty, qualifications, nature of the task being undertaken, materials reviewed, tests administered, issues addressed, opinions and rationale are all set forth. That explains why the plaintiff’s submissions with respect to rule 53.03 (2.1) were confined to the absence of the acknowledgement it requires. Third, there is no suggestion the plaintiff was surprised when it received the s. 52 Evidence Act notice from the defendant. With one exception mentioned later, the defendant did not retain a health practitioner or certified vocational evaluator. I am satisfied the plaintiff already knew the defendant would seek to rely on the accident benefits reports or testimony from their authors at trial. Fourth, I am satisfied leave can be granted on terms. In this case, the defendant was advised that Dr. Young, Dr. Scapinello, Dr. Conn and Ms Billet would only be permitted to testify if an acknowledgement was obtained from them in Form 53 with such variations as the circumstances require. [2]

C. Trial Fairness

[ 24 ] On the facts before him, Moore J. concluded admitting evidence from experts provided to an accident benefits carrier would result in counsel for Mr. Beasley having to “undertake a laborious, time-consuming, and unnecessarily complicated description, for the benefit of the jury, of the statutory accident benefits system in place in this province at the time of the accident and at the time of the assessments undertaken by…three doctors.” Counsel for the plaintiff submitted this case was analogous to Beasley.

[ 25 ] I disagree. The evidence which can be introduced from the experts retained by the accident benefits insurer has been circumscribed. The issue of objectivity and impartiality has been addressed through the requirement they execute a modified acknowledgement. The reports are clearly snapshots of certain aspects of Ms Michienzi’s situation taken almost three years ago. However, evidence introduced from the plaintiff’s own witnesses includes snapshots taken at various points of time including that one.

[ 26 ] Simply put, I am not satisfied introduction of the proposed evidence will add significant time, complexity or expense to the trial. Most importantly, I do not believe Ms Michienzi is prejudiced by the evidence the defendant proposes to lead.

D. Duplication

[ 27 ] Submissions on this point were confined to Dr. Young. Another neuropsychologist – Dr. Snow – was retained by the defendant. The plaintiff has no objection to evidence being introduced from Dr. Snow. However, the plaintiff submits, with some force, that the defendant should not be permitted to call two experts from the same field.

[ 28 ] There is, however, an additional noteworthy fact. The neuropsychologist retained by the plaintiff, Dr. Harnadek, reviewed Dr. Young’s work and commented upon it in an October 14, 2009 document I have not seen. That, in turn, resulted in Dr. Young preparing the January 27, 2010 letter mentioned earlier in these reasons. That letter suggests a difference of opinion with respect to the extent to which Ms Michienzi was cognitively affected by the accident.

[ 29 ] Dr. Harnadek will be called by the plaintiff. During cross-examination counsel for the defendant proposes to question Dr. Harnadek about the entirety of his work including the comments contained in his response to Dr. Young. It is not appropriate for me, at this stage, to say that such questions cannot be asked in testing the completeness and accuracy of Dr. Harnadek’s observations and conclusions.

[ 30 ] Similarly, it seems to me that evidence from Dr. Young may be necessary to ensure the jury understands the nature, extent and impact of and reasons for any professional disagreement between Dr. Young and Dr. Harnadek. On this occasion, I am of the view that the proposed evidence of Dr. Young – to the extent permitted by these reasons – is not duplicative.

E. Conclusion

[ 31 ] For the reasons given:

a) The plaintiff’s request that I exclude evidence from Dr. Young, Dr. Scapinello, Dr. Conn and Ms Billet is denied;

b) However, the ability of the defendant to introduce evidence from those individuals, whether oral or in writing, is subject to this precondition: a form 53 must be signed with such variations as are required to reflect the fact they were not retained by the defendant;

c) Further, the evidence of Dr. Young, Dr. Scapinello and Dr. Conn may not include their opinions concerning Ms Michienzi’s ability to engage in any employment for which she is reasonably suited by education, training or experience because they are no longer relevant given subsequent events;

d) Their evidence may include, however, other observations made concerning Ms Michienzi’s cognitive, physical and emotional condition and prognosis and the basis for them.

“Justice A. D. Grace”

Justice A. D. Grace

Released: (Orally) April 16, 2012

[1] The trial did not proceed on April 13, 2012.

[2] At para. 34 of Beasley, Moore J. noted that the relationship between and insured and an insurer involves a duty of good faith and a fiduciary duty. Nonetheless, he expressed concern whether opinions provided to accident benefits carriers were fair, objective and impartial: see, para. 35.