Court File and Parties

LINDSAY COURT FILE NO.: CV-12-0105 DATE: 20170622 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Barry O’Brien and Cindy O’Brien, Plaintiffs AND: Janet O'Brien, Estate Trustee of James O'Brien, Deceased, Ghulam Nabi, 6840981 Ontario Inc., and 655661 Ontario Inc., Defendants

BEFORE: The Honourable Mr. Justice M. McKelvey

COUNSEL: Joel H.J. Cormier and Samantha Shatz, Counsel for the Plaintiffs Martin Forget and Eric Boschetti, Counsel for the Defendant, Janet O'Brien, Estate Trustee of James O'Brien, Deceased

HEARD: May 18, 2017

ENDORSEMENT

Background

[1] This action arises out of a motor vehicle accident which occurred on October 14, 2010. The plaintiff, Barry O’Brien was a passenger in a pickup truck driven by his uncle. The uncle fell asleep at the wheel and entered the oncoming lane of traffic and a serious collision ensued which killed the uncle and resulted in injuries to the plaintiff, Barry O’Brien, which is the subject matter of this action. As part of the plaintiff’s claim for damages, he alleges that he has suffered psychiatric injuries including post-traumatic stress disorder and major depression.

[2] As part of the defence case, Dr. Robert Hines who is a psychiatrist was called as a witness to testify. The plaintiff objected to the admissibility of Dr. Hines’ evidence. I ruled that his evidence was admissible and advised counsel that I would release written reasons. These are those reasons.

Overview

[3] Dr. Hines conducted two psychiatric assessments of the plaintiff in July and December, 2012. He was retained by the accident benefits insurer, Farmers’ Mutual Insurance. After Dr. Hines gave evidence about his qualifications, the plaintiffs’ counsel objected to the admissibility of Dr. Hines’ evidence as the defence had not complied with rule 53.03 and Dr. Hines had not completed an acknowledgment of his expert’s duty in accordance with that rule. Subsequent to reviewing the Court of Appeal decision in Westerhof v. Estate of William Gee, 2015 ONCA 206, the plaintiff’s solicitor withdrew his objection to Dr. Hines testifying. It is clear from the Westerhof decision that Dr. Hines would be considered a non-party expert and that compliance with rule 53 was therefore not required.

[4] During the course of argument on the plaintiffs’ application to disqualify Dr. Hines from testifying, there was reference to the fact that Dr. Hines’ reports were included in a joint brief of documents which had been admitted on consent at the beginning of trial. I raised a concern with counsel as to whether the defence was entitled to call Dr. Hines given that Dr. Hines’ reports had already been admitted as exhibits at trial. These reports would only be admissible under s. 52 of the Evidence Act. With the defence having elected to file the reports under s. 52 of the Evidence Act, my concern related to whether Dr. Hines was then entitled to give evidence at trial.

[5] Mr. Forget on behalf of the defence took issue with the court raising this issue given that it had not been raised by the plaintiffs’ counsel. The inference I took from his comment is that it was improper for the court to intervene when no objection had been taken by the plaintiffs.

Analysis

[6] In my view the law is clear that under s. 52 of the Evidence Act, a party is not entitled to both file a medical report and call the doctor at trial. In Ferraro v. Lee (1974), 2 O.R. (2d) 417 (C.A.), the court of appeal dealt with a situation where a trial judge refused to allow the plaintiff to file both medical reports of the appellant’s two doctors and to call the two doctors as witnesses. As stated by the court in that case,

In my view, it is implicit from this section in the ordinary case a party cannot proceed both to file the report and call the doctor, but must elect what course he will pursue, and if the decision is made to proceed by way of filing the report and if leave is granted, in most cases the doctor cannot be called by that party. With respect, if the doctor's attendance is necessary to explain the report, what is the value in filing the report at all?

[7] The court of appeal in Ferraro v. Lee concluded that in cases where a physician is being called, the discretion of the trial judge should normally be exercised by requiring the party to elect as to whether they wish to file the report or alternatively call the physician as a witness.

[8] The court of appeal’s position on this issue was reiterated in its 2015 decision in Iannarella v. Corbett, 2015 ONCA 110. It is significant to note that Mr. Forget was also the defence counsel in the Iannarella action. In that case, the medical report was contained in a joint document brief. The physician was called at trial and allowed to give evidence. The plaintiff’s lawyer complained that he had not consented to the report being included in the exhibit and that assertion was not contested by Mr. Forget. Portions of the report had been projected on a screen in front of the jury during the defence cross-examination of the plaintiff in that case.

[9] Mr. Forget argued that the Iannarella case was distinguishable from the current situation because in the Iannarella case, the medical report in question had been improperly introduced into the joint document brief whereas in the present case, the plaintiffs’ solicitor had consented to the document being included in the joint document brief. Further, he argued that the plaintiffs’ solicitor has been well aware of the defence intention to call Dr. Hines as a witness without expressing any objection. If Dr. Hines were not allowed to testify the result would be irreparable prejudice to the defence. Despite the fact that Dr. Hines’ reports would be contained in an exhibit for review by the jury, there was significant amplification of his evidence needed. According to Mr. Forget, it was critical to the defence that Dr. Hines be allowed to testify.

[10] Mr. Forget argued there was no dispute about the fact that the defence had always intended to call Dr. Hines as a witness. This was communicated to the jury pool at the time of jury selection. When questioned as to why no prior objection was taken, the plaintiffs’ counsel candidly acknowledged that he had no answer for that.

[11] Mr. Forget’s involvement in the Iannarella case is significant in a number of important respects. This is a decision which counsel could not easily forget. It is fair to say that the Court of Appeal was extremely critical of Mr. Forget’s conduct at that trial. In their decision, the Court of Appeal was also critical of the trial judge for failing to perform his gatekeeping function in relation to the medical report of Dr. Soon-Shiong which was shown on the screen by Mr. Forget during the course of the plaintiff’s cross-examination. The Court of Appeal stated in Iannarella, at paragraph 125:

The trial judge did not adequately perform his gatekeeping function in relation to this evidence. I agree with the appellants that the respondents should not have been permitted to use the projected excerpts from the expert reports,…

[12] Given his direct involvement in the Iannarella case, I have concluded that Mr. Forget would be well aware of the important gatekeeping rule which is expected of the trial judge. His submission that it was improper for the court to intervene with respect to the issues involving s. 52 of the Evidence Act and his intention to call Dr. Hines as a witness is concerning to me.

[13] Further, I reject his submission that the Iannarella decision can be distinguished on its facts in relation to his entitlement to both file Dr. Hines’ reports and call him as a witness. In my view, the court of appeal makes it clear that the law as stated in Ferraro v. Lee remains good law. That means that a party must make an election to either call the expert or file the report but they are not permitted to do both. This was the clear message given by the Court of Appeal in the Iannarella decision when they stated at para 131,

Fourth, this approach allowed the respondents to get around the usual requirement that, absent special circumstances, parties must choose between filing a medical report as evidence under s. 52 of the Evidence Act, and calling the practitioner as a witness. See Ferraro v. Lee (1974), 2 O.R. (2d) 417 (C.A.), at para. 6; Pool v. Lehoux, at para. 7; Beck v. Blane, [1999] O.J. No. 529 (C.A.), at para. 4; Fuerst & Sanderson, at pp. 954-956, 958. The jury effectively heard from Dr. Soon-Shiong twice, without consideration as to how this could impact the appellants.

[14] In my view this is a black and white issue. I conclude that Mr. Forget was well aware of the rules relating to s. 52 of the Evidence Act. While he denied in his submissions that this was a deliberate attempt to circumvent the law relating to s. 52, I find that this is the only rational conclusion which can be inferred from the circumstances.

[15] Mr. Forget referred to the fact that the briefs including Dr. Hines’ report were prepared months before the trial and it was not his job to tell the plaintiffs’ solicitor that there might be an issue here. I have great difficulty accepting that this is appropriate practice. The rules of evidence should be followed and a failure by the other side to object does not render the evidence admissible. Even accepting that Mr. Forget is correct in his assertion, this does not provide an adequate explanation for his failure to advise the court of a potential issue. It totally ignores the role of the court as a gatekeeper.

[16] As noted by the Ontario Court of Appeal in Norman v. van Meppelen Scheppink, 2017 ONCA 192, when pursuing their client’s interests, counsel must not disregard their superordinate duties as officers of the court and to the administration of justice. By attempting to both include the report of Dr. Hines in an exhibit filed with the court and call him as a witness, and by further challenging the court’s gatekeeping responsibility when this issue was raised by the court, I have concluded that Mr. Forget abandoned his obligation to the court.

[17] The more difficult question is how the court should respond to the present situation. The plaintiff argues that Dr. Hines should not be permitted to testify. There is considerable merit to this argument, especially given that during the cross-examination of the plaintiff, Mr. Forget cross-examined the plaintiff on Dr. Hines’ report and displayed portions of the report on a screen to the jury. This is similar to what happened in the Iannarella case. Referring again to that decision, the Court of Appeal stated,

It is regrettably not unusual, however, for counsel to differ on the precise basis on which a document in the brief is being tendered or whether it was to have been included, as the implications materialize in the course of the trial. That happened here, where the appellants thought no medical reports were to be included in the brief, but the respondents included the reports. The trial judge should have addressed the problem quickly and completely. Instead, by permitting cross-examination to proceed with the reports projected for the jury’s view, the trial judge exposed the appellants to the potential for the jury to be prejudiced by the disputed reports.

Second, the projected words would have distracted the jury when their attention should have been on the witness. It is to be expected that the projected words from a medical report would carry great weight with the jury, who would naturally see them as likely to be true.

[18] There are, however, differences between the Iannarella case and the one before me which go to the question of how the court should exercise its discretion as to whether Dr. Hines should be allowed to testify. In the present case the report of Dr. Hines was admitted as a document in a joint document brief which the plaintiffs were aware of and consented to. They were also aware of the defendant’s intention to call Dr. Hines as a witness. Further, while the plaintiff was cross-examined on some portions of Dr. Hines’ report which were displayed on a screen, they generally related to statements which were alleged to have been made by the plaintiff to Dr. Hines about his symptoms and which Mr. O’Brien for the most part agreed with during the course of the cross-examination. There was a brief reference to Dr. Hines’ view that the plaintiff’s symptoms of post-traumatic stress disorder had diminished but this was a relatively brief part of Mr. O’Brien’s cross-examination. On balance, I believe that the potential prejudice to the plaintiff from having limited portions of Dr. Hines’ reports displayed briefly during his cross-examination is not substantial. On the other hand, were I to preclude Dr. Hines from testifying, I do accept there would be significant prejudice to the defence. While Dr. Hines’ reports would properly be before the jury as part of an exhibit brief, the defence would be deprived of the opportunity to amplify the comments in his report and the jury would be deprived of the opportunity to hear his evidence first hand. I am also mindful of the fact that apart from one lay witness, the defence evidence consists of only Dr. Hines and an orthopaedic surgeon who also conducted an accident benefits report which was included as part of the joint document brief. Thus, if I rule that Dr. Hines cannot testify, it seems likely that the other physician will similarly be precluded from giving evidence. The combined effect would in my view seriously impact the defence at this trial.

[19] The case law establishes that there is a discretion in the trial judge in the application of s. 52. This is reflected in the Ferraro decision where the court states,

[T]here will be situations where a party initially elects to file the report, and circumstances arise making it desirable that the trial Judge should permit or direct the doctor to be called as a witness.

[20] With some reluctance, and having considered the potential prejudice to both parties, I have concluded that the defence should be allowed to call Dr. Hines as a witness at trial. However, in order to minimize the potential prejudice to the plaintiff I have ordered that all of Dr. Hines’ reports which were included in the joint document brief be removed. While the jury has seen some limited excerpts displayed from the reports as noted above during the cross-examination of the plaintiff, the jury has not yet had access to the briefs at this trial. They will therefore have no access to these reports for their deliberations or subsequent to my ruling at trial.

[21] It is, however, my intention to take into account the conduct of the defence relating to this issue when addressing costs at the conclusion of trial.

Justice M. McKelvey Date: June 22, 2017