Ruling on ADMISSIBILITY OF EXPERT EVIDENCE

[1] In the course of this personal injury trial arising from a motor vehicle accident that occurred on November 7, 2012, the plaintiff sought to call Dr. Stephen Brown and have him qualified as an expert witness on the diagnosis and treatment of chronic pain in order to give opinion evidence on the nature and extent of the plaintiff’s pain, its causes, evolution and how it interferes with her daily life.

[2] I ruled at the time that Dr. Brown was qualified to give expert evidence on what constitutes chronic pain and whether the plaintiff has it, and the basis for that opinion based on his review of her medical history and his own examination of her. This would include his observations and opinion on how it affected her day-to-day life. I also permitted him to testify as to his recommendations for future treatment and possible rehabilitation of the plaintiff, and of her prognosis for the future.

[3] However, I was not prepared to allow Dr. Brown to give his opinion on the ultimate legal and factual issue as to whether the plaintiff’s chronic pain was caused by the motor vehicle accident some six years prior to his examination of her. Such a “connecting of the dots”, I said, was for the jury. Nor did I permit him to give his opinion on whether the injuries suffered in the accident constituted a “permanent and serious impairment of an important physical, psychological, or mental function”, which is the legal test for whether the plaintiff is entitled to non-pecuniary damages and damages for health care pursuant to s. 267.5(3) and (5) of the Insurance Act, RSO 1990, c. I.8 (“the Act”). However, I did permit him to address the points made in his report under that question insofar as they described the impact of the plaintiff’s injuries and impairments on her life and to the extent it supported his diagnosis.

[4] My ruling at the trial was necessarily very brief and I stated that more detailed reasons would follow. These are those reasons.

[5] The starting point for admissibility of expert testimony remains the decision of Sopinka J. in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9. There the Supreme Court stated at para. 17:

Admission of expert evidence depends on the application of the following criteria:

(a) relevance;

(b) necessity in assisting the trier of fact;

(d) a properly qualified expert.

[6] More recently, in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182, the Court discussed the importance of controlling the use of experts and not having cases devolve to “trial by expert”. Cromwell J. noted at paras. 19-24 that in addition to the four requirements identified in Mohan, there is a second component to the test, in which the judge “balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks.” This second component is part of the discretionary, “gatekeeper” function of a trial judge.

[7] In this case I found Dr. Brown, an anesthesiologist with 20 years of experience in diagnosing and treating pain and chronic pain, to be qualified as set out above. However, he was not tendered as an expert in causation, or as an expert in injuries suffered in motor vehicle accidents, and I therefore limited his evidence on those issues. In doing so, I was also concerned that such evidence would effectively “usurp the functions of the trier of fact”. While I recognize that the rule excluding expert evidence on the ultimate issue is “no longer of general application, the concerns underlying it remain” and it may be excluded in appropriate cases: Mohan, at paras. 24 and 25. One of the concerns with such testimony is that it may also be seen as oath helping where it does little more than repeat evidence of others. In this case, that concern existed given that Dr. Brown only saw the plaintiff in 2019, and some of his opinion simply confirmed or repeated what treating physicians had seen in the months after the accident in November 2012.

[8] I also limited Dr. Brown in opining, specifically, on whether the plaintiff’s condition met the test to permit awards of non-pecuniary damage and damage for medical care. However, I permitted Dr. Brown to testify about his observations of the plaintiff, his diagnosis, and his opinion as to the plaintiff’s prognosis going forward, which allowed him to say virtually everything in his report to assist the jury, and me, in coming to our own conclusions as to the permanence, seriousness and importance of her impairments.

[9] In my view, it was important to limit Dr. Brown’s evidence to what was necessary and would assist the Court, but not overwhelm the jury and tell it precisely what to do or conclude. In that way, Dr. Brown’s evidence would be helpful but still allow the jury to “connect the dots”, if it wished, based on all the evidence to decide whether the plaintiff’s ongoing impairments were caused by the accident and if so, to what extent.

[10] In addition, I limited Dr. Brown’s ability to specifically address the plaintiff’s ability to work at her pre-accident employment, and the impact of her impairments on housekeeping and other activities of daily living, about which he was not an expert, and on which the court had already heard from experts on functional abilities. Similarly, I restricted Dr. Brown’s evidence on whether the plaintiff’s pre-existing conditions were exacerbated by the motor vehicle collision, as I was not satisfied that he had the expertise or factual basis to give that opinion. Nevertheless, Dr. Brown could still speak to his observations relevant to these issues, and did so.

Schabas J.

Released: October 17, 2019

COURT FILE NO.: CV-14-498203

DATE: 2019-10-17

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

YVETTE ROBICHAUD AND SANDRA MCAULAY

Plaintiffs

– and –

KYRIAKOS CONSTANTINIDIS, SOFIA CONSTANTINIDIS AND COSECO INSURANCE COMPANY

Defendants

RULING ON ADMISSIBILITY OF EXPERT EVIDENCE

Schabas J.

Released: October 17, 2019```

Robichaud et al. v. Constantinidis et al., 2019 ONSC 6030

Case Summary

Ruling on ADMISSIBILITY OF EXPERT EVIDENCE

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Legal Tests 2

Legislation 1