Bishop-Gittens v. Lim, 2015 ONSC 3393

NEWMARKET COURT FILE NO.: CV-11-107056-00

DATE: 20150527

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Marlene Bishop-Gittens

Plaintiff

– and –

Jimmy Kyin Hlaing Lim

Defendant

Erin M. Neal, for the Plaintiff

Talar Beylerian, for the Defendant

HEARD: May 26, 2015

REASONS FOR DECISION

mcKELVEY J.:

Introduction

[1] This case involves a claim for personal injury by the plaintiff, Marlene Bishop-Gittens, which is alleged to arise out of a motor-vehicle accident. The plaintiff has called a chiropractor, Dr. Dean Antoniazzi, as a witness. Prior to giving his evidence, a copy of Dr. Antoniazzi’s treatment records were provided to defence counsel. A copy of these treatment records have been marked as an exhibit at trial. These treatment records document that the plaintiff has been under Dr. Antoniazzi’s care from December 2009 until April 2015. At the conclusion of Dr. Antoniazzi’s evidence, plaintiff’s counsel asked the following question: “In your opinion does she [the plaintiff] still require treatment?” The defence objected to this question and the issue before me is whether Dr. Antoniazzi should be allowed to give his opinion in response to the question. It is apparent that Dr. Antoniazzi’s opinion on this question is not contained in any of his clinical notes.

The Parties’ Positions

[2] The defence objects on the basis that Dr. Antoniazzi’s opinion about the need for further treatment is not disclosed in his treatment record. It is acknowledged, as well, that the plaintiff did not give notice that Dr. Antoniazzi’s opinion on this issue would be solicited in his evidence at trial. The defence also objects on the basis that the opinion sought to be elicited goes beyond any opinion formed by Dr. Antoniazzi during his treatment of the plaintiff.

[3] The plaintiff takes the position that Dr. Antoniazzi’s opinion on this question was, in fact, formed as part of his treatment of the plaintiff. The plaintiff also suggests that there was no request by the defence at any time to provide additional information about Dr. Antoniazzi’s evidence and that there was no specific obligation on them to provide this information to counsel in advance of his giving evidence.

Analysis

[4] The issues before me on this objection require a careful consideration of the recent Court of Appeal decision in Westerhof v. Gee Estate, 2015 ONCA 206. This decision was released on March 26, 2015. In their decision in Westerhof, the Court of Appeal concluded that a witness with special skill, knowledge or training, who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents, without complying with rule 53.03 of the Rules of Civil Procedure. This would include the opinions of a health care practitioner, such as Dr. Antoniazzi. The conditions which must be satisfied before such opinion evidence is received were set out by the court in its decision as follows,

• the opinion to be given is based on the witness’s observation of or participation in the events at issue; and

• the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

[5] The court goes on to note that if participant experts proffer opinion evidence extending beyond the limits described they must comply with rule 53.03 for the portion of their opinions extending beyond those limits.

[6] It seems likely that the opinion sought to be elicited by the plaintiff’s counsel would fall within the limits of permissible evidence without the necessity for compliance with rule 53.03, as the question relates to whether he contemplates the need for continuing care following the plaintiff’s last attendance in April of this year. Having said that, where there is any issue as to whether the opinion falls within the permitted scope of evidence, it is open to the court to hold a voir dire and I conclude this is the appropriate route in this case given that compliance with rule 53.03 has not occurred.

[7] The more difficult issue is whether the plaintiff was obliged to give notice to the defence to elicit evidence which goes beyond what is contained in the notes and records produced. The Court of Appeal in the Westerhof case makes some general comments about the disclosure issue, but does not appear to reach a definitive conclusion. At paragraph 85 of the judgment, the court states,

Fifth, I am not persuaded that disclosure problems exist in relation to the opinions of participant experts and non-party experts requiring that they comply with rule 53.03. In many instances, these experts will have prepared documents summarizing their opinions about the matter contemporaneously with their involvement. These summaries can be obtained as part of the discovery process. Further, even if these experts have not prepared such summaries, it is open to a party, as part of the discovery process, to seek disclosure of any opinions, notes or records of participant experts and non-party experts the opposing party intends to rely on at trial. If the notes produced are illegible, the party producing them must provide a readable version.

[8] Based on this portion of the judgment, it appears that the principal disclosure requirement for a party calling a participant expert is the production of the relevant records and responding to questions during the discovery process to seek disclosure of any opinions that the opposing party intends to rely on at trial.

[9] On the other hand, there are references later in the decision which seem to suggest a positive obligation for more fulsome disclosure exists. For example, at paragraph 164, the court states,

With respect to the opinions relating to potential for improvement and future medication requirements, I see no merit in Mr. Baker’s complaints. On their face, these opinions relate to the practitioners’ treatment of Mr. McCallum and fall within their respective areas of expertise. Although some of the transcript excerpts to which we were referred may be somewhat ambiguous, it appears that the opinions at issue were formed at the time of treatment. I see no indication in the transcript that the opinions had not been disclosed. [emphasis added]

[10] In my view, the question of whether the party adducing the evidence has given notice of an opinion not contained in any of the clinical records is a factor that a court may consider in exercising its gatekeeper function in limiting the admission of opinions from a participant expert. It is reasonable to expect that these opinions will be disclosed within a reasonable time prior to trial. Some of the considerations a court might consider in exercising its discretion, where reasonable notice has not been given, include the following:

(a) Has the opposing party requested notice of any opinions to be relied upon, other than those which are contained in the material provided?

(b) How closely connected are the opinions sought to be elicited to the opinions already disclosed prior to trial?

(c) To what extent is there prejudice which cannot be remedied to the opposing party?

(d) Have there been any tactics or actions of the party adducing the evidence which are designed to take the other party by surprise?

(e) Any explanation available to explain the delay in disclosing the opinions.

[11] While there is clearly an obligation identified in the Westerhof decision for an opposing party to make inquiries at discovery or otherwise about the nature of opinions to be solicited from a participant expert, this does not, in my view, relieve the party calling such a witness from disclosing opinions which are going to be sought from the witness and which are not contained in the material provided to the other side.

[12] In the Court of Appeal decision in Iannarella v. Corbett, 2015 ONCA 110, the Court of Appeal quotes with approval the comments of Justice Howden in Beland v. Hill, 2012 ONSC 4855, where he notes that discovery rules are to be read in a manner to discourage unfair tactics and encourage full and timely disclosure in order to encourage early settlement and reduce court costs. While those comments were made in connection with the issue of disclosing video surveillance, the disclosure of opinions by professional witnesses called to give opinion evidence about care provided to a party are, in my view, at least as important as the disclosure of surveillance evidence and merit similar treatment. I therefore conclude that the plaintiff in this case should have disclosed the additional opinion which is being sought from Dr. Antoniazzi.

[13] However, I do find it significant that the opinions sought from Dr. Antoniazzi are very closely connected and arise directly out of the material which has been disclosed to the defendant in this case. The issue being asked of Dr. Antoniazzi essentially refers to his intentions as to whether he intends to continue treating the plaintiff. Given the long and consistent history that Dr. Antoniazzi has been providing treatment to the plaintiff from 2009 right up until April 2015, his evidence on this question would appear to flow very directly from his notes and I conclude that the question asked should not take the defendant by surprise.

[14] In addition, I do not see any significant prejudice to the defendant by allowing Dr. Antoniazzi to give this opinion. The defence suggests that had they known that such an opinion would have been sought, they might have retained a chiropractic expert. Given the lengthy history of care by Dr. Antoniazzi and the fact that it was known he would testify, I find it difficult to accept that this factor, taken in isolation, would have resulted in a chiropractic expert being retained. Instead, the defence strategy appears to have been to retain an orthopedic expert, Dr. Ford. It would appear that any prejudice to the defendant can be addressed by allowing Dr. Ford to respond to any opinion expressed by Dr. Antoniazzi in response to the question and to waive the formal requirements of rule 53.03 with respect to any responding opinion Dr. Ford may have. The defence will be asked to provide a brief will-say to the plaintiff with Dr. Ford’s response. This should address any issue of prejudice with respect to the defendant.

[15] I would note that there is no evidence of any bad faith on the part of the plaintiff in calling this evidence, nor does it appear to be a strategic move to gain a tactical advantage. Instead, the omission to give notice of this evidence appears to be as a result of some uncertainty by the plaintiff’s counsel about their obligations following release of the Westerhof decision.

Order

[16] For the above reasons, I order as follows:

(a) There will be a voir dire to determine whether the opinions of Dr. Antoniazzi in response to the question posed were based on his observation or participation in the events at issue and whether he formed the opinion to be given as part of the ordinary exercise of his skill, knowledge, training and experience while observing or participating in his treatment of the plaintiff;

(b) If so, Dr. Antoniazzi will be allowed to answer the question asked.

(c) The defence will be entitled to have their expert, Dr. Ford, respond to any opinion expressed by Dr. Antoniazzi in response to the question. The formal requirements of rule 53.03 are waived, although the counsel for the defence will be required to provide a brief will-say from Dr. Ford, setting out any additional opinion he intends to express in relation to the additional opinion expressed by Dr. Antoniazzi.

Mr. Justice M.K. McKelvey

Released: May 27, 2015