ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: Doran v. Melhado, 2015 ONSC 2845
COURT FILE NO.: CV-09-05628-00
DATE: 2015-05-04
BETWEEN:
PATRICK DORAN, personally, and as Litigation Guardian of CAITLIN DORAN, and JANE DORAN
Stewart C.E. Gillis, for the Plaintiffs
Plaintiffs
- and -
IAN MELHADO
Leon Wickham, for the Defendant
Defendant
HEARD: April 9, 2015
RULING ON MOTION
EMERY J
[1] On the evening of April 11, 2009, the defendant Ian Melhado assaulted the plaintiff Patrick Doran outside the banquet hall where each had attended a hockey banquet with their respective daughters. Mr. Melhado struck Mr. Doran in the face, which has allegedly caused Mr. Doran some loss of eyesight and certain psychological distress.
Litigation History
[2] Mr. Doran commenced this action against Mr. Melhado in 2009 seeking general damages as well as damages for loss of competitive advantage. His daughter, Caitlin Doran has also been named as a plaintiff as she witnessed the assault upon her father. Damages are claimed on her behalf for nervous shock, as well as for the loss of her father’s guidance and companionship under the Family Law Act. Jane Doran, who is Mr. Doran’s wife and Caitlin’s mother, also claims damages for certain loss of guidance and companionship of Mr. Doran under the Family Law Act.
[3] This action was called for trial on December 3, 2014. At the opening of trial, the plaintiffs brought a motion for summary judgment to make a finding of liability against the defendant. Mr. Melhado did not file a responding affidavit or other evidence in response to the motion for summary judgment.
[4] I granted summary judgment finding liability against Mr. Melhado on the basis of the affidavit of Patrick Doran filed in support of the motion. I also based my decision on the transcript of evidence and finding of guilt on the same facts by Justice Cavion in the Ontario Court of Justice for assault under section 266 of the Criminal Code. I relied upon the reasoning of Justice Sharpe in Franco v. White,[2007] O.J. No.847 (Ont. C.A.) as authority to find there to be no genuine issue requiring a trial on the basis of evidence given, and findings made on the prior trial of a criminal charge. I also granted summary judgment as a proportionate means to adjudicate that issue for the parties on a timely and affordable basis.
[5] After I delivered my ruling to grant summary judgment to the plaintiff, the parties held further discussions outside the court. Later that day, counsel filed Minutes of Settlement with respect to damages, and a payment plan for those damages. Paragraph 3 of those Minutes read:
- In the event of default, the action shall forthwith be returned to the Brampton Trial List for a contested damage assessment.
[6] The action was back before the court on April 9, 2015 for a contested trial on damages. Mr. Wickham renewed the defendant’s motion to challenge the admissibility of two medical reports the plaintiffs propose to file under section 52 of the Evidence Act he had brought when the action was scheduled for trial in January, 2014.
[7] Mr. Gillis did not file responding material on the motion.
The Motion
[8] Mr. Gillis advised the court at the opening of trial that he intends to file the medical reports of each Dr. Eisenstat and Dr. Gonder as evidence under section 52 of the Evidence Act, R.S.O. 1990, c. E.23, without calling them as witnesses to give viva voce evidence. He informed the court that he has served the appropriate notices of intention on Mr. Wickham in order to file those reports under section 52.
[9] The defendant’s motion seeks a ruling that the opinion of Dr. John Gonder contained in his Medical Report dated December 11, 2013 and in his Addendum Report dated January 8, 2014, and that of Dr. Alan Eisenstat contained in his Psychological Assessment Report dated November 25, 2013 will be inadmissible as evidence at trial. In each respect, the defendant’s motion is based on the ground that the reports do not comply with Rule 53.03 (2.1) of the Rules of Civil Procedure.
[10] It is little wonder why Mr. Wickham brings this motion, as he indicated he had no medical expert on the day of trial to call on behalf of the defendant.
[11] The defendant’s motion was supported by the affidavit of Rachelle Roberts, who describes herself as a law clerk in the Law Offices of P.L. Rickards, where Mr. Wickham practices law as counsel. Ms. Roberts attached to her affidavit the following exhibits:
A. The fax from Mr. Gillis dated December 6, 2013, enclosing the fax letter from Mr. Gillis dated December 6, 2013 serving the enclosed Report of Dr. Eisenstat dated November 25, 2013. In that report, Dr. Eisenstat describes himself as a duly qualified Registered Psychologist.
B. The fax cover page from Mr. Gillis dated January 3, 2014 and an Acknowledgment of Expert’s Duty signed by Dr. Eisenstat on January 3, 2014.
C. A fax cover page from Mr. Gillis dated January 2, 2014, with enclosed fax letter from Mr. Gillis dated January 2, 2014 to Mr. Wickham and the enclosed Medical Report of Dr. John Gonder dated December 11, 2013.
D. The fax cover page from Mr. Gillis dated January 8, 2014, the fax letter from Mr. Gillis to Mr. Wickham dated January 8, 2014, an Addendum Report dated January 8, 2014 from Dr. Gonder to his Report dated December 11, 2013, an Acknowledgment of Experts Duty, and a 10 page statement of his qualifications.
[12] In the case of Westerhof v. Estate of William Gee and Kingsway General Insurance, 2015 ONCA 206, the Court of Appeal identified three general groups of expert witnesses described categorically as “litigation experts”, “participant experts” and “non-party experts”. I categorically adopt the terminology used by Justice Simmons in Westerhof for this ruling.
[13] Justice Simmons identified the attributes of a litigation expert as an expert engaged by or on behalf of a party to provide opinion evidence in relation to a proceeding. A litigation expert would not be a medical practitioner who treated Mr. Doran for the injuries or affects he allegedly suffers as a result of the assault, or a medical practitioner retained by a non-party, such as an insurance company.
[14] There is no dispute that Mr. Gillis proposes to have the opinion evidence contained in the reports of Dr. Eisenstat and Dr. Gonder given by them as litigation experts within their respective fields. Mr. Gillis concedes that Dr. Eisenstat and Dr. Gonder must comply with the provisions of Rule 53.03(2.1) as litigation experts, even though he proposes to file the reports at trial to give their evidence in written form under section 52 of the Evidence Act. This is a fair concession to make, as this position is consistent with the decision of the Court of Appeal in Westerhof that Rule 53.03 applies to litigation experts.
[15] I propose to consider the compliance with the Rules of Civil Procedure as they relate to each of the proposed experts in turn. I then propose to discuss the embedded issue of whether the report of a medical practitioner that a party is relying upon as a litigation expert can be filed under section 52 of the Evidence Act instead of calling that expert to testify at trial.
Dr. Alan Eisenstat
[16] It would appear from the defendants’ motion record that Mr. Gillis served the psychological assessment report of Dr. Eisenstat on December 6, 2013. Dr. Eisenstat describes his professional qualifications in that report as those of a “duly qualified Registered Psychologist, licensed to practice in the province of Ontario.” He states in his report that, in addition to the fact that Mr. Gillis referred Mr. Doran, the purpose of the assessment was to:
a) document any psychological problems sustained by Mr. Doran as a result of the assault upon him on April 11, 2009;
b) to provide appropriate psychiatric diagnosis;
c) comment on the prognosis of any psychiatric symptomology; and
d) to provide a prognosis with regard to any psychological problems that Mr. Doran has experienced.
[17] Dr. Eisenstat then sets out the sources of information on which he relies for his report, his process, testing, findings and conclusions.
[18] Mr. Gillis also served Mr. Wickham’s office with an Acknowledgment of Experts Duty signed by Dr. Eisenstat on January 3, 2014.
[19] I find that Dr. Eisenstat has met all of the required elements to comply with Rule 53.03(2.1) in a general way. Subrule 53.03(2.1) was added to Rule 53.03 in 2010 and is therefore remedial in nature. As a remedial rule, it should be interpreted in a liberal and generous manner. The test for compliance under the amended rule must surely be to require that sufficient information is given to the opposing party on which to test the qualifications of the expert in a voir dire to determine if, and for what field, that doctor should be accepted as an expert witness by the court.
[20] Presuming the basis of Rule 53.03 in its form prior to 2010 continues to provide the foundation for the addition of subrule (2.1), the substance of the proposed testimony of the proposed expert in a report is required for any responding expert to assess that evidence and to prepare a responding report if his or her opinion differs. Giving fair and informed notice of the expert’s proposed testimony also enables counsel for the adverse party to cross-examine the expert on his or her opinion, and the underlying facts and assumptions for that opinion at trial.
[21] Mr. Wickham takes issue with Dr. Eisenstat’s failure to articulate his instructions for the purpose of providing opinion evidence as an expert. I equate his description of the purpose for which he was engaged as the instructions he received to examine Mr. Doran, carry out all tests and to prepare his report.
[22] I find that Dr. Eisenstat’s report meets the burden required of him under paragraphs 1 to 6 of Rule 53.03 (2.1). Dr. Eisenstat’s report was not served before the pretrial conference held on June 14, 2012, or within the proper times in advance of the pretrial conference held on January 6, 2014. However, his report was served within the time required by Rule 53.03(1) for the pretrial conference on May 16, 2014. I find that the plaintiff has now complied with the service requirement under the rules.
[23] If the defendant seeks to limit the field or scope of expertise within which Dr. Eisenstat can testify, he may do so at trial and seek a ruling at the qualification stage or as the opinion evidence comes up during his testimony. Even if Dr. Eisenstat is accepted as a litigation expert to give opinion evidence at trial, he is subject to the rules of evidence that would ordinarily apply.
[24] I therefore find that Dr. Eisenstat has met the requirements for a report under Rule 53.03(2.1), and that the plaintiff complied with Rule 4.1.01(1) when Mr. Gillis served his Acknowledgment of Experts Duty.
Dr. Gonder
[25] Dr. Gonder’s report was served on Mr. Wickham on January 2, 2014. Dr. Gonder sets out his credentials as a specialist in ophthalmology and vitrialretinal surgery. He sets out the documents received and reviewed, schedule for ophthalmic consultation and the purpose of the comprehensive ophthalmic assessment. He sets out his process for information gathering, examination and testing, and his findings, comments, opinion and prognosis in the report.
[26] I find that Dr. Gonder’s report meets the requirements to comply with Rule 53.03(2.1) for the same reasons discussed with respect to Dr. Eisenstat’s compliance as to sufficiency and timeliness.
[27] On January 8, 2014, Mr. Gillis served Mr. Wickham with an addendum to Dr. Gonder’s previous report, along with test results, and a 10 page statement of qualifications updated to January 6, 2014. This material supplements Dr. Gonder’s compliance with Rule 53.03(2.1).
[28] In the letter dated January 8, 2014 serving Dr. Gonder’s further material, Mr. Gillis also served an Acknowledgment of Expert Duty in the form required by Rule 4.1.01 to comply with paragraph 7 of Rule 53.03(2.1).
[29] I therefore conclude that each Dr. Eisenstat and Dr. Gonder as an expert engaged by Mr. Gillis on behalf of the plaintiff Patrick Doran has complied with Rules 4.1.01(1) and 53.03(2.1) in order to be called as an expert witness. If qualified by the court within his field of expertise, one or both of those individuals may give opinion evidence within that field with respect to the issues of causation and damages.
Filing Opinion Evidence of Medical Expert
[30] This leaves the troubling issue of whether a medical practitioner can file a report under section 52 of the Evidence Act to give the opinion evidence he proposes to give as a litigation expert in written form.
[31] The defendant’s motion seeks an advance ruling on the admissibility of the reports written by Dr. Eisenstat and Dr. Gonder on the basis they do not comply with the requirements of Rule 53.03(2.1). I have found that the report of each practitioner meets those requirements. However, that is not the end of the matter.
[32] Rule 53.03 and section 52 of the Evidence Act are two related, yet distinct regimes. Rule 53.03 sets out the prerequisites for calling an expert witness to testify within his or her field of expertise at a trial in any case, regardless of subject matter. If the proposed expert is a medical practitioner, Section 52 allows for a party to file his or her report as evidence if notice is given at least ten days before trial and with leave of the court, instead of calling that medical practitioner as a witness at trial.
[33] The focus of the defendant’s motion is, with respect, misdirected. Instead of seeking a ruling on the compliance by the plaintiffs and each expert witness they rely upon with Rule 53.03 (2.1), the inquiry is properly directed to whether leave should be granted to file either report in order to make the contents of that report admissible as evidence from a litigation expert under section 52(2) of the Evidence Act.
[34] Section 52(2) reads:
Medical reports
(2) A report obtained by or prepared for a party to an action and signed by a practitioner and any other report of the practitioner that relates to the action are, with leave of the court and after at least ten days notice has been given to all other parties, admissible in evidence in the action. R.S.O. 1990, c. E.23, s. 52 (2).
[35] In Reimer v. Thivierge, (1999) 1999 9303 (ON CA), 46 O.R. (3d) 309, the Court of Appeal held that the party who gives notice and files medical reports makes the medical practitioner who wrote those reports the witness of that party. The reports therefore become the evidence of that medical practitioner. As such, the party filing the report must produce the medical practitioner who wrote the report for cross-examination by the other party, if proper notice is given.
[36] In Foster v. Hoerk, 1973 537 (ON SC), [1973] 2 O.R. 601 (H.C.), it was held that if one side serves a notice to file a report, either side may file that report as evidence at trial. The author of the report then becomes a witness for the party who files the report, and the evidence given in the report is effectively the evidence in chief of that witness. It is then open for the opposite party to require the first party to produce that medical practitioner, and to cross-examine that witness.
[37] The requirements of section 52(2) for a report to be admissible in evidence without calling the medical practitioner requires service of the report at least 10 days before trial, and leave of the court. The report of Dr. Eisenstat and Dr. Gonder clearly meet the requirements of section 52(2) as they are in writing and they are signed. Both were served at least 10 days before trial. It is the requirement for leave of the court under section 52(2) that raises the issue about Rule 53.03, and how the opinion evidence of a medical practitioner may be given as a litigation expert.
[38] It is my view that if the plaintiffs intend to rely on the opinion evidence of either Dr. Eisenstat or Dr. Gonder at trial, they must call that medical practitioner to attend at trial and give evidence instead of filing his report under section 52. I reach this conclusion for two reasons.
[39] First, the opening words of Rule 53.03(1) start with “A party who intends to call an expert witness at trial shall…” Further, Rule 53.03(3) states “an expert witness may not testify with respect to an issue, except with leave of the trial judge…”. The language used in these subrules suggest that the expert witness called by a party, notwithstanding that the witness is a medical practitioner who would otherwise be subject to section 52 of the Evidence Act, shall be required to attend a court and give viva voce evidence if called as a litigation expert.
[40] Second, filing a report under section 52 would usurp the function of the trial judge to rule on the qualifications of a proposed expert. The qualification process should involve examination and cross-examination of a proposed expert on his or her qualifications for the court to determine if he or she is qualified to testify as an expert, and to map out the parameters of a given field or scope of expertise within which the expert intends to opine as to particular issues at trial. This is a function reserved to the trial judge as the gatekeeper of what experts are qualified, and the permissible scope of their evidence. Chief Justice Strathy in Meady v. Greyhound Canada Transportation Corp, 2015 ONCA 6 discussed the growing recognition of the responsibility of a trial judge to exercise what he calls a “more robust gatekeeper role” in the admission of expert evidence.
[41] The gatekeeper function would be removed from the trial judge if leave were given to simply file the report of any medical practitioner relied upon as a litigation expert under section 52. In my view, it would be contrary to the cardinal principal of impartiality and to the letter of rule 53.03 (2.1) that a medical practitioner called as a litigation expert, as distinct from a participant expert, should be considered the witness of one party or another upon the filing of a report giving his or her opinion: Foster v. Hoerk.
[42] I therefore conclude that because rule 53.03 contemplates that an expert witness is required to attend and give his or her opinion evidence at trial, it would be inappropriate for this court to grant leave for the reports of a medical practitioner proffered as a litigation expert to be filed and relied upon as that medical practitioner’s evidence. Leave is denied to file the reports of each Dr. Eisenstat and Dr. Gonder under section 52 of the Evidence Act. If the plaintiffs intend to introduce the substance of those reports at trial, they must call Dr. Eisenstat and Dr. Gonder to testify in court if one or both are qualified as an expert in his field. Their evidence given at trial through examination in chief and cross-examination will be the evidence for the court to rely upon, and not the contents of their reports. See Moore v. Getahun, 2015 ONCA 55 (Ont. C.A.) at paragraphs 85 to 87.
[43] The motion of the defendant Ian Melhado is therefore granted. In view of the fact that the trial has been adjourned to November 17, 2015, the defendants shall have until June 30, 2015 to bring a motion on notice to the plaintiffs for an order extending time to serve any report from a responding expert provided he complies with Rule 53.03(2.1). If that motion is brought and granted, a timetable may be set at that time.
[44] Costs of this motion shall be in the cause.
EMERY J
Released: May 4, 2015
CITATION: Doran v. Melhado, 2015 ONSC 2845
COURT FILE NO.: CV-09-05628-00
DATE: 2015-05-04
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PATRICK DORAN, personally, and as Litigation Guardian of CAITLIN DORAN, and JANE DORAN
Plaintiffs
- and -
IAN MELHADO
Defendant
RULING ON MOTION
EMERY J
Released: May 4, 2015