SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 07-CV-339646PD1

DATE: 20130122

RE: Ronen Levshtein, Plaintiff

AND:

Homer Ramirez, National Car Rental (Canada) Inc., Sarah Rouselle and Darren Rouselle, Defendants

BEFORE: Madam Justice Darla A. Wilson

COUNSEL: Ian Little & Piera Segreto, Counsel for the Plaintiff

David Lauder, Counsel for the Defendant, National Car Rental (Canada) Inc.

HEARD: January 14, 2013

ENDORSEMENT

[1] The trial of this action commenced January 7, 2013, before a jury. This is a claim for damages brought by the Plaintiff as a result of a motor vehicle accident which occurred September 16, 2005. Liability has been admitted with the action proceeding as an assessment of damages.

[2] The Plaintiff tenders Nick Simsiris, chiropractor, and wishes to have him qualified as an expert entitled to offer an opinion to this court on an in-home functional assessment he did March 26, 2012. I have read the report which is signed by both Mr. Simsiris and Ms. Bohbot, a Certified Kinesiologist. I had concerns about the anticipated testimony of Mr. Simsiris and therefore asked counsel for their submissions on the qualification of Mr. Simsiris as an expert and the ambit of any testimony, following which a voir dire was conducted in the absence of the jury.

[3] In his report Mr. Simsiris states that the purpose of conducting the in-home functional assessment was to verify the physical demands of the Plaintiff’s pre-accident activities of daily living. In his written report, Mr. Simsiris offers opinions on areas clearly outside the ambit of his expertise as a chiropractor, such as the need for a neuropsychological assessment, the cost of housekeeping services and the ability of the Plaintiff to find suitable employment given his physical and cognitive impairments. Mr. Little agreed that he would not seek to elicit such evidence from Mr. Simsiris. However, Mr. Little wishes to qualify Mr. Simsiris as an expert in the area of functional assessments, entitled to testify about the testing that he performed and the ability of the Plaintiff to do his usual daily activities.

[4] Mr. Lauder objects, arguing that the anticipated evidence of Mr. Simsiris is really of no probative value and is simply repetitive of the evidence of the Plaintiff.

I. Analysis

[5] The often-cited case R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 (“Mohan”), sets out the test for the admissibility of expert evidence. Four criteria must be met: relevance; necessity in order to assist the trier of fact; the absence of any exclusionary rule; and a properly qualified expert (Mohan, at p. 20).

[6] The Honourable Coulter Osborne undertook a “Civil Justice Reform Project” and produced a summary of findings and recommendations in November of 2007: Honourable Coulter A. Osborne, Civil Justice Reform Project: Summary of Findings & Recommendations (Toronto: Ontario Attorney General, 2007). In that report (“the Osborne Report”), after meeting with various groups and members of the Bar and Bench, as well as reviewing the practices in other jurisdictions, he noted that the use of experts was perceived as being a “significant problem” which needed to be addressed (at p. 71). One of the areas the Osborne Report addressed was the problems with expert evidence in the courts: the fact that too many experts were testifying at trial, often without the proper credentials or who were not impartial in their views, in cases where it was not even necessary for an expert opinion to be elicited. Following delivery of the Osborne Report the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 were amended to impose stricter obligations on experts to eliminate bias and to require the foundation for their expert opinion to be clearly set out in their report.

[7] In my view, it is the obligation of the trial judge to scrutinize profferred evidence at the time it is put forth and to determine whether it meets the Mohan criteria and whether the witness ought to be qualified to offer an expert opinion. As I stated in Gutbir (Litigation guardian of) v. University Health Network, 2010 ONSC 6394, [2010] O.J. No. 4982 (“Gutbir”), at paras. 21-24:

[T]here has been a shift towards increased scrutiny of the validity and usefulness of expert testimony in trials. This was made very clear by Commissioner Stephen Goudge’s Report entitled “Inquiry into Pediatric Pathology in Ontario”, commonly known as the “Goudge Report” which was released in 2008. In that report, Justice Goudge reaffirmed the role of the trial judge as a gatekeeper who is required to rule on the admissibility of an expert opinion and not allow the evidence in, indicating that it would be accorded its proper weight at the end of the day.

The role of the trial judge as gatekeeper is not a new phenomenon. More than 10 years ago in R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, Justice Binnie stated:

… the court has emphasized that the trial judge should take seriously the role of gatekeeper. The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry [o]n the basis that all of the frailties can go at the end of the day to weight rather than admissibility …

In a more recent case, Dulong v. Merrill Lynch Canada Inc. (2006), 2006 9146 (ON SC), 80 O.R. (3d) 378 (S.C.J.), Justice Ducharme reviewed the four criteria established in R. v. Mohan (1994), 1994 80 (SCC), 114 D.L.R. (4th) 419 (S.C.C.) for the admissibility of expert testimony and in doing so, 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 and was explicitly rejected by Binnie, J in R. v. J.-L.J ...

I decline to take the route of admitting the evidence on the basis that the “proper” weight can be attributed to it and the jury instructed in this regard. Rather, in my view, the correct and preferable approach is to consider the proffered evidence and make the determination at the present time as to the admissibility of the expert testimony.

[8] During the voir dire Mr. Simsiris testified that he has done many functional evaluations. In this particular case, he reviewed the medical brief he was provided with, spoke to Mr. Levshtein, and did strength testing with a Jamar unit and some free weights. He draws conclusions about the Plaintiff’s ability to do various activities, although these conclusions are not tied in to the results of his testing but seem to be based for the most part on the Plaintiff’s statements that he is unable to complete the activities due to pain. The Plaintiff testified at trial about the various activities that he is unable to do as a result of his injuries; so too did his wife.

[9] This is a claim for damages for personal injuries sustained as a result of a motor vehicle accident on September 16, 2005. It is not disputed the Plaintiff suffered a fracture of C2 in the accident. There is no claim for housekeeping services being advanced, but only general damages and loss of income. The Plaintiff brought a motion and I granted leave to call more than three expert witnesses. Two of the proposed witnesses are Dr. Wong, a physiatrist, and Dr. Langer, an orthopaedic surgeon.

[10] Dr. Langer, in his report of July 4, 2012, offers the opinion “all of his activities of daily living are limited for they increase the spinal pain … with respect to housekeeping and home maintenance and family, social and recreational activities it is my view that Mr. Levshtein will remain with a disability for these activities … and will continue to interfere with the essential pre-accident activities of daily living that he was easily able to manage prior to the accident”.

[11] In my view, Mr. Simsiris cannot be qualified as an expert in this trial for several reasons. First, I am not persuaded that on the basis of testing the Plaintiff’s hand strength and observing him lift weights he is able to form an expert opinion as to his ability to perform activities around the house. Mr. Simsiris is not an occupational therapist, who has expertise in the area of accommodating people with disabilities or who can comment on the effect of a particular injury on an individual’s ability to perform a certain function. It seems to me that as a chiropractor, Mr. Simsiris’ expertise is in the area of musculoskeletal issues.

[12] That leads to the second problem with his evidence. The opinion that he purports to offer on the restrictions imposed on the Plaintiff by his neck injury is offered by other experts who in my view have a greater expertise in the area than Mr. Simsiris. I make this comment not to be disrespectful of Mr. Simsiris’ qualifications, but rather because an orthopaedic surgeon and a physiatrist clearly are better qualified to tell the court about the nature and extent of the type of fracture that the Plaintiff sustained in this accident. Third, the anticipated evidence of Mr. Simsiris is repetitive of evidence that this court has already heard and therefore is not necessary pursuant to the Mohan criteria. The days of the philosophy that if it is good to hear certain evidence from one witness, it must be better to hear the same evidence from two or more are long gone.

[13] Finally, the evidence of Mr. Simsiris is not probative of any issue in this case since there is no claim being advanced for housekeeping expenses. While Mr. Little argues that because Mr. Simsiris did certain testing with abnormal results it can go to the issue of general damages, I do not accept this submission. The other medical experts did various types of tests and there will be evidence of the results of their investigations. The evidence of Mr. Simsiris would be repetitive of others and in addition, much of his opinion as to the Plaintiff’s ability to perform activities around the house appears to be based on the statements of Mr. Levshtein as to what he was able to do and what he was not. Again, that is repetitive of the Plaintiff’s own testimony and lacks probative value.

[14] In my opinion, Mr. Simsiris cannot be qualified as an expert in the area of in-home functional assessments. He does not have the proper expertise in this area and there are other experts who are being called to give opinion evidence who are better qualified to comment on the nature and extent of any restrictions imposed as a result of the neck fracture suffered by the Plaintiff in the motor vehicle accident of September 2005. Thus, there is no prejudice to the Plaintiff as a result of my ruling because the same evidence about the functional limitations is going to lead from other more qualified experts.

II. Ruling

[15] Mr. Simsiris shall not be qualified as an expert entitled to offer an opinion at this trial on the in-home functional assessment he conducted.

D.A. Wilson J.

Date: January 22, 2013