ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: C-10,645-08
DATE: 20151125
BETWEEN:
Ben Hayes
Plaintiff
– and –
Ian Symington, Sudbury Regional Hospital, Jane Doe, Suzanne Quevillon-Stanley, Joanna Kalviainen, Dave Alle and Mary Doe
Defendants
Patrick Poupore, for the Plaintiff
Wayne Brynaert, for the Defendant, Ian Symington
HEARD: November 24, 2015
Ruling on motion
Gauthier J.
Number of Experts
[1] The Plaintiff seeks an Order limiting the parties to one expert each in the area of emergency medicine.
[2] The Plaintiff says that he will be relying on the evidence of one expert witness only dealing with the standard of care in the assessment, cleaning and closing of the Plaintiff’s wound, and the Defendant should likewise be limited to one such expert, for the following reasons:
(a) The defence experts in emergency medicine all have similar qualifications;
(b) The defence experts all have the same opinion;
(c) It is not necessary to have more than one expert in the same area;
(d) Allowing more than one expert in the same area will unduly lengthen the trial, and increase trial preparation costs; and
(e) Allowing more than one expert could confuse the jury.
[3] The Defendant resists this limit on his right to call up to three expert witnesses, and advised that he will be calling two, not three experts in emergency medicine: One who is an academic, and the other who is a practitioner.
[4] The Defendant submitted that:
(a) Because he will be calling fewer than three expert witnesses in the trial, there is no basis for imposing a limit on him. He is well within the Evidence Act limitation.
(b) Although the conclusion of both of his experts is the same, their qualifications are not: one is primarily an academic and the other is primarily a practitioner. They will be examined differently, one from the other.
(c) Depending on how the Plaintiff’s case develops, he may ultimately only call one of his experts; he should not have to commit to that at this stage of the proceeding.
(d) The leading of evidence from both of the Defence experts will not involve any significant lengthening of the trial.
[5] The Plaintiff relies on case law developed in regard to Section 12 of the Evidence Act:
Where it is intended by a party to examine as witnesses persons entitled, according to the law or practice, to give opinion evidence, not more than three of such witnesses may be called upon either side without leave of the judge or other person presiding.
[6] All of the cases provided were cases where parties sought leave to call more than three experts. The following principles emerge:
Longer trials caused by calling unnecessary experts use up scarce resources and deny early trials to other litigants. Where the proposed number of experts to be called exceeds three, and it is not necessary for a party to call all of its medical experts in order to fairly present its case, leave to call more than three will be denied.
Gorman v. Powell [2006] O.J. No. 4233.
Where a party seeks to call more than three witnesses at the trial, and there is no need to call more than one in any given issue, then leave will be denied.
Goodwin (Litigation guardian of) v. Olupona [2010] O.J. No. 3919.
Simply because an expert has authored a report that complies with the requirements under the Rules of Civil Procedure, does not automatically entitle a party to call that individual at trial. The evidence must be necessary and not repetitive of other testimony from other experts.
Hoang (Litigation guardian of) v. Vicentini [2012] O.J. No. 810.
[7] The court does have discretion to exclude otherwise admissible evidence. The test is not that set out in Section 12 of the Evidence Act, but rather is whether the probative value of the evidence is outweighed by its prejudicial effect.
[8] Probative value is measured by the extent to which the evidence assists in proving the fact or issue for which it is tendered. Prejudice or prejudicial effect requires a consideration of factors such as (a) risk of improper use of the evidence by the trier of fact; (b) undue lengthening of the proceeding; and (c) effect of admission on the fairness of the trial.
[9] The Defendant has suggested, and I accept the suggestion, that he may well require the evidence of both of his proposed experts, given the difference in their experience: One an academic and the other primarily a practitioner. The fact that their conclusion is the same does not render their evidence inadmissible as being unduly repetitive, or otherwise improper.
[10] The Plaintiff has not established that he will suffer prejudice if the Defendant is permitted to call two experts on the issue of the standard of care, and the Plaintiff is calling only one witness. The Plaintiff could have sought leave to call more than three witnesses, for the trial, as he has, and called a second expert on the issue of standard of care. He has prepared his case as he saw fit.
[11] There is no trial unfairness in not limiting the Defence to one expert on the issue of the standard of care. The Defendant will be calling, at most, two experts in total during the entire trial. Both sides have had examinations for discovery and disclosure. Both sides are given the opportunity of leading evidence, challenging the experts that will be called and making submissions, and both sides are prepared for the case they have to make or meet.
[12] There is no basis upon which I could grant the Order sought. Accordingly, the motion is dismissed.
The Honourable Madam Justice Louise L. Gauthier
Released: November 25, 2015
COURT FILE NO.: C-10,645-08
DATE: 20151125
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Ben Hayes
Plaintiff
– and –
Ian Symington, Sudbury Regional Hospital, Jane Doe, Suzanne Quevillon-Stanley, Joanna Kalviainen, Dave Alle and Mary Doe
Defendants
ruling on motion
Gauthier J.
Released: November 25, 2015