Court File and Parties

COURT FILE NO.: 8731/12 DATE: 20181011 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Roderick Noiles, Sherry Noiles, personally and as Litigation Guardian for Ashley Noiles and Kylie Noiles Plaintiffs – and – MTD Products Inc., MTD Products Canada Ltd., Jim Dodson Sales Ltd., cob Canadian Tire and Canadian Tire Corporation, Limited Defendants

Counsel: Gordon Good and M. Durnez, for the Plaintiffs Lindsay Lorimer and Rachel Cooper, for the Defendants

HEARD: October 5, 2018

Justice L.C. Leitch

Ruling on the Plaintiffs’ Leave Motion – s.12 of The Evidence Act

[1] This is an action for damages for a personal injury sustained by the plaintiff, Roderick Noiles, in an incident which occurred April 24, 2012. The fact that Mr. Noiles was injured is not disputed, nor is the defendants’ liability for such injury. However, the consequences of the injury remain contentious, including whether Mr. Noiles’ sustained an injury beyond a laceration, and whether the initial diagnosis of Complex Regional Pain Syndrome is a result of the incident.

[2] The plaintiffs intend to call three medical experts: an expert physiatrist, a pain management specialist, and a psychologist. In addition, the plaintiffs intend to present expert evidence of an accountant, who calculated Mr. Noiles’ income loss and will provide a future care cost valuation.

[3] The defendants propose to call three expert witnesses: an expert physiatrist, a vocational assessor, and an economist.

[4] The contentious issue that resulted in this motion is the plaintiffs’ wish to call four additional witnesses: three occupational therapists and a life care planner.

Preliminary Procedural Issue

[5] The plaintiffs’ motion record contained an affidavit of a law clerk that did not comply with the rules. Far beyond a statement of facts within the personal knowledge of the law clerk, the affidavit filed in support of the plaintiffs’ motion did not comply with Rule 4.06(2) of the Rules of Civil Procedure. It also did not comply with Rule 39.01(4) of the Rules of Civil Procedure in that she did not state what she was deposed to based on her information and belief, nor did the affidavit disclose the source of her information or the basis of her belief.

[6] The law clerk’s non-compliant affidavit resulted in a cross motion by the defendants seeking an order to strike 5 of the 15 paragraphs of her affidavit. At the hearing of the cross-motion, counsel narrowed her argument to 3 highly contentious paragraphs.

[7] The defendants’ cross motion was allowed for oral reasons given. To recount, the affidavit was not limited to facts within the knowledge of the deponent, lacked a statement of information and belief, did not cite the source of the information or the basis for the belief, improperly included legal argument, improperly opined on the ultimate issues to be determined by the court, and baldly stated legal conclusions.

[8] I note that the affidavit was of very limited assistance to the court, and the contentious paragraphs would have been ignored had a cross motion not been brought.

[9] During argument, counsel for the plaintiffs withdrew a portion of the affidavit which - apparently - incorrectly explained the need for the evidence of one of the occupational therapists: Mr. Campbell.

[10] It was helpful that the defendants provided a responding motion record that included a copy of the reports of each of the occupational therapists and the life care planner as well as their curriculum vitaes.

[11] The plaintiffs then filed a reply affidavit providing a copy of Mr. Campbell’s addendum report which I reference below.

The Contentious Experts

[12] The plaintiffs seek to call Mr. Gareth Smit, a Canadian certified life care planner and a registered kinesiologist, who authored a report respecting a Life Care Plan Assessment “outlining Mr. Noiles’ expected future needs and their costs due to injuries he sustained on April 24, 2012”. This report is dated December 21, 2016, and co-authored by Mr. Jordan Roovers who is also a Canadian certified life care planner and registered kinesiologist.

[13] Mr. Smit and Mr. Roovers note in their report that, in order to prepare the Life Care Plan, they reviewed Mr. Noiles’ medical and rehabilitation documentation. They also disclose that they consulted with the plaintiffs’ three medical experts, Mr. Noiles’ family physician, and Ms. Allison Schmidt, an occupational therapist.

[14] As part of this Life Care Plan Assessment, Mr. Noiles was interviewed by Mr. Smit and Mr. Roovers on November 9, 2016, with Ms. Schmidt present for the interview. During the interview it was noted that Mr. Noiles described his medications and ongoing physical, emotional, and cognitive symptoms. His mobility and tolerances were assessed and recorded. The report notes that an active range of motion scan was completed, and references the manual muscle testing conducted by Ms. Schmidt during the assessment.

[15] A Life Care Plan Summary Schedule was attached as Appendix A to Mr. Smit and Mr. Roover’s report, which is described as a summary “of the recommended goods/services along with the cost, frequency of good/service, start date, and expected duration of need of the good or service”. It is clear that this summary is based on their consultation with the plaintiffs’ three medical experts, Mr. Noiles’ family doctor, and Ms. Schmidt. In other words, the Life Care Plan reflects the recommendations of those individuals and provides the cost of each of the recommended items.

[16] The plaintiffs also wish to call Ms. Schmidt, who completed an Occupation Therapy Assessment of Mr. Noiles on November 9, 2016. As noted, the assessment was completed “in order to determine his needs with respect to developing, maintaining, rehabilitating or augmenting function or adaptive behaviour in the areas of self-care, productivity, and leisure” which would “include identifying needs related to attendant care, housekeeping and home maintenance, vocational issues, leisure activities, and assistive devices”.

[17] It is important to note that in completing her assessment, Ms. Schmidt also reviewed the medical and rehabilitation documentation, and interviewed Mr. Noiles with Mr. Smit.

[18] Ms. Schmidt’s Occupational Therapy Assessment Report, dated December 20, 2016, outlines Mr. Noiles’ physical, emotional, and cognitive symptoms as reported by Mr. Noiles and observed during the assessment. Ms. Schmidt’s report also includes notes related to mobility and tolerances, the active range of motion scan, a rehabilitation checklist, a Beck Depression Inventory, and a Beck Anxiety Inventory.

[19] Ms. Schmidt made eight recommendations for goods and services required by Mr. Noiles which ultimately formed the basis of the Life Care Plan Summary Schedule prepared by Mr. Smit.

[20] The plaintiffs also wish to call Mr. Josh Campbell and Mr. Kevin Tyrer, who co-authored reports dated January 20, 2017 and August 24, 2018 respectively.

[21] Their first report, dated January 20, 2017, is referenced as an “Employability Assessment” and based on a January 5, 2017 assessment of Mr. Noiles (conducted by Mr. Tyrer – an occupational therapist), as well as medical and rehabilitation documentation. The report noted that “consultation services and a review of the report was completed by Mr. Josh Campbell, also an occupational therapist”.

[22] The January 20, 2017 report included a summary of employment positions potentially available to Mr. Noiles, and an analysis and opinion on the suitability of these occupations for him when “compared to his physical, cognitive and psychological tolerances as outlined in available documentation and based on this therapist’s clinical expertise”. The opinions set out in the report reference the opinions of Mr. Noiles’ psychologist and physiatrist.

[23] While the reply affidavit of plaintiffs’ counsel’s law clerk deposed that Mr. Campbell prepared an addendum report dated August 24, 2018, this report was authored by both Mr. Campbell and Mr. Tyrer. This addendum report referenced the vocational assessment by the defendants’ expert, updated reports from the plaintiffs’ expert physiatrist and pain specialist, and commented on the reports of the defendants’ medical expert and the surveillance video.

[24] In his submissions on this motion, plaintiffs’ counsel emphasized that the primary purpose of the addendum report was the review and commentary on the report of the defendant’s vocational assessor.

The Applicable Law

[25] Section 12 of the Evidence Act limits the number of witnesses a party may call to testify at trial, providing as follows:

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 a judge or other person presiding.

[26] In opposing the plaintiffs’ motion, the defendants reference a decision of Ferguson J. in Burgess (Litigation guardian of) v. Wu, 2005 O.J. 929 (S.C.J.), which laid out a non-exhaustive list of factors that a trial judge may consider on a motion for leave in relation to the number of expert witnesses to be called:

1. whether the opposing party objects to leave being granted;
2. the number of expert subjects in issue;
3. the number of experts each side proposes to have opine on each subject in issue;
4. how many experts are customarily called in cases with similar issues;
5. whether the opposing party will be disadvantaged if leave is granted because the applying party will then have more experts than the opposing party;
6. whether it is necessary to call more than three experts in order to adduce evidence on the issues in dispute;
7. how much duplication will result from the proposed opinions of different experts; and
8. whether the time and cost involved in calling the additional experts is disproportionate to the amount at stake in the trial.

[27] As noted in McLeish v. Daines, 2017 ONSC 902 at para. 13, in requiring leave of the court to call more than three experts, courts are aware that calling multiple experts with the same specialty incurs unnecessary expense, uses up scarce resources, and is ultimately unnecessary to assist the court where an expert with the same specialty has already testified on the same subject matter.

[28] The affidavit filed by the plaintiffs in support of the motion indicated that the plaintiffs intended to call Mr. Campbell to testify to Mr. Noiles’ ability to return to employment as a result of the injury sustained in the April 24, 2012 incident, and to respond to the report filed by the defendants. The affidavit further states that Mr. Tyrer would be called to testify to Mr. Noiles’ physical ability to return to employment as a result of the injury sustained in the incident. During argument, counsel for the plaintiffs stated that Mr. Campbell would be called to testify only in relation to the addendum report which responded to the report of the defendants’ expert. He therefore asked to withdraw the portion of the affidavit which suggested an overlap between the evidence of Mr. Campbell and Mr. Tyrer.

[29] During argument, plaintiffs’ counsel asserted that Mr. Tyrer and Mr. Campbell have two distinct areas of expertise and offer separate and distinct opinions.

Discussion and Disposition

[30] I begin by noting that, while plaintiffs’ counsel suggested during argument that the defendants’ opposition to the leave motion was not clear until after his motion was filed on September 24, 2018, the report of the trial management conference held in late July, 2018 indicated that the defendants would oppose the plaintiffs’ motion for leave pursuant to s. 12 of the Evidence Act.

[31] I note also that the plaintiffs propose to call eight expert witnesses whereas the defendants propose to call only three.

[32] In relation to the evidence from the contentious experts (the three occupational therapists and one life care planner) the expert subjects in issue are Mr. Noiles’ employability and his future care needs. In relation to these expert subject issues, the defendants propose to call the evidence of an expert vocational assessor compared to the plaintiffs’ proposed four witnesses.

[33] The defendants concede that usually two experts would be called - an occupational therapist and a life care planner - on the two expert subjects in issue. This is consistent with the decision in Hoang (Litigation guardian of) v. Vincentini, 2012 ONSC 1066, in which - on a motion where the plaintiffs sought leave to call several occupational therapists - the court permitted the plaintiff to call two occupational therapists: one qualified as a life care planner and the other to opine on the issue of employability.

[34] The defendants note that a significant amount of time - 17.5 hours for direct and cross-examination - has been allocated to the anticipated testimony of the three occupational therapists and the life care planner.

[35] All of the above factors weigh in favour of leave not being granted to call more than two of the proposed expert witnesses.

[36] I turn next to the most contentious aspect of the motion which relates to whether all of the proposed experts are necessary in order to adduce evidence on the issues in dispute, and whether there is any duplication in the proposed opinions of the different experts.

[37] I agree with the defendants’ submission that Ms. Schmidt’s opinion is duplicative of Mr. Smit’s.

[38] Ms. Schmidt and Mr. Smit both opine on the need for occupational therapy, assistive devices, housekeeping, and home maintenance. It is clear that both of their reports cover the same ground, and are therefore duplicitous in almost all respects. Most significantly, Mr. Smit prepared the Life Care Plan based on Ms. Schmidt’s occupational therapy assessment.

[39] The only exception to the duplication is the Life Care Plan Summary Schedule, which, as previously noted, sets out the cost of each of the items recommended by Ms. Schmidt (and the recommendations of the plaintiffs’ three medical expert witnesses and Mr. Noiles’ family doctor).

[40] The plaintiffs are granted leave to call Ms. Schmidt and Mr. Smit, but his evidence is to be limited to the cost of the items outlined in the Life Care Plan Summary Schedule.

[41] In relation to Mr. Campbell’s and Mr. Tyrer’s evidence, it is impossible to accept the assertion that Mr. Campbell and Mr. Tyrer have separate and distinct qualifications and offer separate and distinct opinions.

[42] They co-authored both of the reports. The reports reference “our” opinion.

[43] Both Mr. Campbell and Mr. Tyrer are occupational therapists.

[44] Mr. Tyrer’s CV indicates that in addition to his qualifications as an occupational therapist, he is qualified as a vocational assessor and a discharge planner.

[45] Mr. Campbell’s CV indicates that, in addition to his qualifications as an occupational therapist, he is qualified as a vocational assessor and a discharge planner. His CV also indicates that he is an employability assessor. While Mr. Campbell has an additional qualification as a life care planner, he is not opining in that area.

[46] Of particular relevance on this motion is the fact that Mr. Campbell’s CV indicates that he has “extensive experience in providing vocational counselling, employability assessments, job demands analysis, labour market review, return to work planning, work hardening programs and job retraining” and he conducts and interprets standardized testing as needed. In particular, he “performs standardized testing such as functional testing, career inventory, aptitude testing, and transferrable skills analysis to determine appropriate return to work plan” and also “performs labour market research as required”.

[47] Mr. Tyrer’s qualifications are identical in relation to the expert subject in issue. Mr. Tyrer has “extensive experience in providing vocational counselling, employability assessments, job demands analysis, labour market review, return to work planning, work hardening programs, and job retraining”, is qualified to conduct and interpret standardized testing as needed, is “certified in performing functional abilities evaluation”, “performs standardized testing such as functional testing, career inventory, aptitude testing, transferrable skills analysis to perform appropriate return to work plan”, and also “performs labour market research as required”.

[48] Both Mr. Campbell and Mr. Tyrer state in their respective CVs that as an employability assessor, in the case of Mr. Campbell, and as a vocational assessor, in the case of Mr. Tyrer, they summarize opinions on current employability and associated income or loss as applicable.

[49] The evidence from both Mr. Campbell and Mr. Tyrer is unnecessary. They are each qualified to testify on the subject matter in issue. They would be testifying on the same subject matter. This duplicative evidence would not assist the court.

[50] The plaintiffs may call either Mr. Campbell or Mr. Tyrer but not both of them.

Justice L. C. Leitch

Released: October 11, 2018