Court File and Parties

COURT FILE NO.: 26091/13 DATE: 2019-07-24 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MYRON WILLIAM CEPECAWER Plaintiff – and – MCKEVITT TRUCKING LTD. and JUSTIN HALL Defendants

Counsel: Kenneth G. Walker, Counsel for the Plaintiff Rose Muscolino, Counsel for the Defendants

HEARD: March 28, 2019; further written submissions

VARPIO J.

Reasons on Motion

[1] This is a personal injury case where the plaintiff alleges that his foot was crushed in an accident. The defendant retained Dr. Marks to conduct an independent medical examination (“IME”). Following his visit to Dr. Marks, the plaintiff made a complaint about Dr. Marks to the College of Physicians and Surgeons. Dr. Marks felt that he could not testify in accordance with his duties of impartiality with the complaint pending so the defendant brought a motion (which was opposed by the plaintiff) to enable the defendant to retain a second expert to conduct another IME. The defendant’s motion was successful, and the defendant retained Dr. Ford whose report makes considerable reference to Dr. Marks’ report. Subsequently, the plaintiff withdrew his complaint to the College.

[2] The matter is set for a jury trial.

[3] The defendant now brings a motion for:

1. An Order permitting Dr. Ford to both testify viva voce and to file his report as an exhibit; and
2. An Order permitting Dr. Marks to file his report as per s.52 of the Courts of Justice Act. Dr. Marks would be available for cross-examination.

Analysis

Dr. Marks

[4] The defendant seeks to admit the Dr. Marks’ report under s. 52(2) of the Evidence Act. This section states:

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).

[5] The defendant submits that Dr. Marks’ report needs to be filed so that the jury is not left wondering why it took several years for Mr. Cepecawer to be seen by a defence IME. I do not believe that a jury would be misled by any such non-filing of Dr. Marks’ report. Juries often hear cases where there is a considerable time gap as between the accident and an IME. This concern is a non-starter and, as will be seen below, is also addressed by the fact that I will permit Dr. Marks to testify within certain limits.

[6] The defendant also submitted that Dr. Marks’ and Dr. Ford’s sub-specialties of orthopedics are sufficiently dissimilar so as to warrant leave permitting both to provide their opinions. I disagree with that position. Even assuming the dissimilarity is sufficiently stark to warrant multiple experts (which I do not assume), it was open to the defence to find another similarly trained specialist as Dr. Marks to give a further report if it so chose. Or it could have asked Dr. Ford to do the initial report. This is therefore a non-issue and I reject the submission.

[7] The defendant also suggests that Dr. Marks is a necessary witness because his report critiques the plaintiff expert’s report. It occurs to me that Dr. Ford could have done likewise had he so chosen and, as a result, the submission fails.

[8] Dr. Marks’ report contains a considerable amount of medico-legal opinion. Accordingly, filing Dr. Marks’ report would conceivably allow the defendant to have two litigation experts testify – Dr. Marks and Dr. Ford – while the defendant would only be allowed to have one litigation expert. This would be unfair to the defendant.

[9] Therefore, I am not willing to permit Dr. Marks to file his report. That is not to say, however, that the jury will be deprived of Dr. Marks’ testimony. When I initially heard this motion, I asked for follow-up written submissions on whether Dr. Marks could be called as a treating, or “fact”, expert in this case. I received written submissions from each party. I am satisfied that Dr. Marks is not a treating physician as per Gee v. Westerhof Estate, [2015] ONCA 206. Simply put, Dr. Marks was always retained by the defendants and, as such, the rules regarding litigation experts apply to Dr. Marks. Accordingly, his ability to testify is governed by the rules respecting litigation experts.

[10] With respect to Dr. Marks’ viva voce testimony, I believe that he can testify with certain limitations. Allowing Dr. Marks to testify as a litigation expert, but only permitting Dr. Marks to describe the how he examined the plaintiff and Dr. Marks’ observations of the plaintiff would meet the appropriate balancing of interests. Such a result would satisfy the four-pronged test for admissibility as described in R. v. Mohan, [1994] 2 SCR 9. [1] I say so for the following reasons.

[11] First, I assume that Dr. Marks will be qualified as an expert with appropriate credentials and expertise in his field. If I am incorrect in this assumption, Dr. Marks cannot, of course, be called as an expert witness. This will either be agreed upon by counsel or I will hold a voir dire to determine same.

[12] Secondly, Dr. Marks’ evidence would meet the relevance threshold outlined in R. v. Mohan in so far as Dr. Marks’ examination of Mr. Cepecawer is highly probative of whether Mr. Cepecawer is injured, or whether he is malingering.

[13] Third, with respect to exclusionary rules, it is clear that the Rules of Civil Procedure only contemplate one IME per party. The effect of this Rule is clear. Litigation in this country often sees a considerable number of experts testifying which leads to major concerns regarding efficient use of court time as described in Hryniak v. Mauldin 2014 SCC 7 and R. v. Jordan 2016 SCC 27. Accordingly, lower courts should be loath to allow parties to call overlapping and/or repetitive witnesses lest the parties simply stack repetitive expert upon repetitive expert, grinding the system to a halt. Such a concern would appear to suggest that Dr. Marks should not provide his opinion to the jury.

[14] Different considerations are at play, however, with respect to Dr. Marks’ testimony regarding his observations of Mr. Cepecawer. Dr. Marks’ observations would be highly relevant to the trier of fact and would not, to my mind, attract the same exclusionary rules / necessity concerns as would Dr. Marks’ opinion because “fact” evidence is not normally as involved as opinion evidence.

[15] The fact that a private investigator may have video of Mr Cepecawer moving in a fashion similar to that described by Dr. Marks (as was described in the plaintiff’s factum) does not diminish the necessity of Dr. Marks’ evidence.

[16] Therefore, I will permit Dr. Marks to testify viva voce as a litigation expert (assuming he is properly qualified) but he may not provide a medico-legal opinion. Instead, his evidence will be limited to Dr. Marks’ observations of the plaintiff, the testing undertaken by Dr. Marks and the results observed by Dr. Marks. Dr. Marks may refer to the fact that he was originally retained by the defendant to perform an IME.

[17] Dr. Marks may not, however, indicate that he was not initially prepared to provide an opinion at trial given the complaint to the College. I do not know why the complaint was withdrawn or whether it had any merit. The fact that a complaint was lodged has little probative value in this case. Conversely, a jury could infer that Mr. Cepecawer’s withdrawal of said complaint equates to Mr. Cepecawer being a dishonest person engaging in dishonest conduct by trying to disqualify a competing expert. This may or may not be true. Given the limited probative value of this evidence, the balance tips in favour of Dr. Marks not giving a reason for his inability to provide an opinion. If necessary, I will entertain submissions from counsel at trial regarding appropriate wording and/or an appropriate limiting instruction.

Dr. Ford’s Testimony

[18] It is settled law that an expert cannot generally both testify viva voce and file an expert report at a jury trial: see Ferraro v. Lee (1974), 2 O.R. (2d) 417; Iannarella v. Corbett, 2015 ONCA 110; O’Brien v. O’Brien Estate, [2017] O.J. No. 3248 at paras. 6 to 9. Simply put, an expert must testify viva voce or file an expert report as per s.52 of the Evidence Act.

[19] In this instance, I have no basis to grant the defendant’s request to allow Dr. Ford’s viva voce evidence as well as the filing of his report. Dr. Ford’s report makes reference to conclusions drawn by Dr. Marks which I have not permitted to go to the jury. Ergo, the motion seeking permission to allow both Dr. Ford’s viva voce evidence as well as the filing of his report is denied. Dr. Ford may testify via viva voce evidence without reference to Dr. Marks’ opinions, absent other evidentiary issues that may arise at trial.

Costs

[20] Costs of this pre-trial motion will be determined at the end of trial.

Varpio J. Released: July 24, 2019

[1] Relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule, and a properly qualified expert.