Court File and Parties
COURT FILE NO.: 16-67152 DATE: 20200122 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
CATHERINE McNAMEE AND JOHN McNAMEE Plaintiffs – and – PAM OICKLE Defendant
COUNSEL: Colleen Burns/Éliane Lachaîne, for the Plaintiffs Tom Ozere/Erin Durant, for the Defendant
HEARD: January 6, 7, 2020
BEFORE: Beaudoin J.
Ruling
[1] The Plaintiffs seek an order under s. 12 of the Evidence Act, R.S.O. 1990, c E.23 granting them leave to call more than three experts at the trial of this action. The Plaintiffs also seek an order abridging the time for service of their expert reports – a necessary pre-condition for calling any litigation expert to testify at trial.
[2] This motion only addresses the expert evidence to be called on behalf of one of the Plaintiffs, Catherine McNamee (“Ms. McNamee”). The Defendant takes no issue with the witnesses to be called on behalf of the other Plaintiff, John McNamee.
[3] In their original notice of motion seeking an abridgment of time, the Plaintiffs only identified the report of their actuary, Maryse Larouche, which is dated December 30, 2019. After it was pointed out that the reports of Dr. Kenneth Suddaby (two reports), Dr. Maurice Siu (two reports), Dr. Tammie Ricci, and Ms. Nathalie Beck-Livingston, were also served out of time, the Plaintiffs sought to amend their motion to include these reports. The amendment of the motion is not opposed by the Defendant.
[4] There is no evidence before me as to why these reports were not obtained earlier. This dearth of evidence undermines the argument that the Defendant had sufficient time to respond to these reports.
[5] Plaintiffs’ counsel notes that there is no motion for an adjournment submitted by the Defendant. It should not be the case, however, that any party can serve an expert report at any time before trial and then shift the onus to the opposing party to seek an adjournment because of its late delivery.
[6] Rule 53 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 clearly sets out the procedure to be followed in these matters:
EXPERT WITNESSES
Experts’ Reports
53.03 (1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference scheduled under subrule 50.02 (1) or (2), serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).
(2) A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1)
Schedule for Service of Reports
(2.2) Within 60 days after an action is set down for trial, the parties shall agree to a schedule setting out dates for the service of experts’ reports in order to meet the requirements of subrules (1), (2) and (3), unless the court orders otherwise.
Sanction for Failure to Address Issue in Report or Supplementary Report
(3) An expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set out in,
(a) a report served under this rule;
(b) a supplementary report served on every other party to the action not less than 45 days before the commencement of the trial; or
(c) a responding supplementary report served on every other party to the action not less than 15 days before the commencement of the trial.
Extension or Abridgment of Time
(4) The time provided for service of a report or supplementary report under this rule may be extended or abridged,
(a) by the judge or case management master at the pre-trial conference or at any conference under Rule 77; or
(b) by the court, on motion.
EVIDENCE ADMISSIBLE ONLY WITH LEAVE
53.08 (1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial.
(2) Subrule (1) applies with respect to the following provisions:
- Subrule 53.03 (3) (failure to serve expert’s report).
[Emphasis Added.]
[7] The mandatory language of paragraph 53.08(1) does not shift the onus to the opposing party. It is the party who has not complied with subrule 53.03(3) and that seeks relief from the court who bears the onus. The moving party must justify the late service of the expert’s report. Only then can the trial judge assess the prejudice to the opposite party and whether there is undue delay.
[8] In my view, the better practice is to seek a motion for the abridgment of time as soon as a party anticipates that additional expert evidence will be called at trial. This should be by way of a motion if it is anticipated that the relief will be opposed. A full evidentiary record is required. This should include a motion for relief under s.12 of the Evidence Act where necessary.
[9] Late service of expert reports and the number of experts to be called at trial are recurrent problems in our civil trial system. Given the long wait to obtain a civil jury trial date – an event which might not take place for at least two years – many counsel set their cases down for trial as a matter of course. In the intervening period, the nature of the case can evolve, resulting in new evidence being obtained in support of a party’s claims.
[10] This trajectory is reflected in the chronology of this case, which is as follows:
The Plaintiffs filed a pre-trial certification and request form dated January 21, 2018, wherein they indicated that all expert reports had been exchanged.
The parties were then given notice of a pre-trial conference scheduled for August 15, 2018. The notice emphasized that all expert reports were to be served as required by Rule 53.
On August 7, 2018, Ms. Burns, on behalf of the Plaintiffs, indicated in her trial management brief that further expert reports and responding reports may be required.
Master Fortier presided over the pre-trial. At that time, a seven-week trial commencing on January 6, 2020 was scheduled for this action. Master Fortier directed that a further pre-trial take place. It is unknown how many witnesses were to be called when those trial dates were set. At that time, however, the Plaintiffs had identified only one expert witness: Dr. Kevin Smith, a physiatrist. The Defendant indicated that it intended to call Dr. Devlin, a physiatrist, and Dr. Peter Judge, a psychologist.
A further pre-trial conference was held on April 25, 2019. The evidentiary record had not changed. In her trial management brief, dated April 16, 2019, Ms. Burns did not indicate that any further expert reports or responding reports would be required.
In July 2019, Ms. Burns advised the Defendant’s counsel, Mr. Ozere, of an upcoming psychiatric assessment of Ms. McNamee with Dr. Suddaby, and that a report was expected before the end of August 2019. In addition, the Plaintiffs advised that they would be obtaining a psycho-vocational assessment by Dr. Ricci and Ms. Beck-Livingston, and that this report would be served by late October. I agree with the Defendant that a letter advising of an intent to obtain an expert report is not the same as the service of a report. Such a letter is the legal equivalent of a “save the date” notice. Until such time as a report has been served, an opposing party does not know to what it will respond.
On August 2, 2019, Ms. Burns advised that Dr. Suddaby had recommended that Ms. McNamee undergo an independent addictionology assessment. The Defendant was advised that this assessment would take place with Dr. Maurice Siu in October.
Dr. Suddaby’s report was not served until September 4, 2019.
On September 30, 2019, Mr. Ozere contacted the trial coordinator’s office. He indicated that he was concerned that the action would not be completed in the time allotted given the delivery of additional expert reports. He also expressed concern that the trial date was in jeopardy, as he would be required to retain experts to counter the new evidence proffered and promised by the Plaintiffs. He was not optimistic that the appropriate reports could be obtained prior to the commencement of trial. He requested that the action be added to the trial management court list for October 25, 2019.
On the same date, Mr. Ozere wrote to Ms. Burns indicating that he had been served with Dr. Suddaby’s report and was expecting a report from Dr. Ricci, but that he was unaware of the medical qualifications and specialty of Dr. Siu. He asked that the matter be raised at the trial management court on October 23, 2019.
On October 21, 2019, the Plaintiffs served the psycho-vocational assessment report of Ms. Beck Livingston and Dr. Ricci. The parties attended trial management court on October 23, 2019.
Justice Roger was presiding at trial management court on that date. His endorsement reads as follows:
The Defendant seeks to adjourn the trial because of recent report served by the Plaintiffs. This is a seven-week trial and the next available dates are only in 2023. The request for an adjournment of the trial is not granted at this time and is to be reviewed at the trial management court on December 11, 2019. In the interim, the Defendant shall exert all reasonable steps to be ready for trial.
The Plaintiffs served the report of Dr. Maurice Siu on November 12, 2019.
I presided at the trial management court on December 11, 2019. No copy of my endorsement has been provided. The Defendant was able to obtain a responding psychiatric report and expected to deliver it soon. I was made aware that a pre-trial motion would be required by the Plaintiffs for leave to call more than three experts. I recommended that a trial management conference take place before trial in order to schedule the hearing of that motion. The Defendant reserved the right to seek an adjournment of the trial.
The Defendants served the report of Dr. Ross, dated December 17, 2019.
On December 23, 2019, the Plaintiffs served additional reports from Dr. Suddaby, dated December 23, 2019, and Dr. Ricci, dated December 19, 2019.
On December 27, 2019, the Plaintiffs served a report of an occupational therapist, Susan Yungbluth.
On December 30, 2019, the Plaintiffs served addendum reports from Ms. Larouche and an addendum report from their occupational therapist, Ms. Matheson.
An addendum report from Dr. Siu, dated January 5, 2020, was provided to the court during the argument of this motion.
I was assigned to hear this trial and was able to convene a short trial management conference on January 3, 2020. By then, the Plaintiffs had served two motion records: the first dealing with the request to call more than three experts at trial, and the second being their motion to exclude the report of Dr. Ross for misapprehension of bias. It was determined that we would proceed with jury selection on Monday, January 6, 2020. At that time, I would deliver my preliminary remarks to the jury and would then hear arguments on the motions.
At the time of jury selection, the Plaintiffs identified a total of 31 witnesses to be called on their behalf.
Before proceeding to argue the motions, the Plaintiffs delivered an amended motion record wherein they proposed to call an additional expert witness, Dr. Peter Judge. This was because the Defendant indicated that they had no intention of calling him. While there was no motion for leave before me, Ms. Lachaîne indicated that the Plaintiffs intended to serve the reports of Drs. Roy and MacLeod pursuant to s. 52 of the Evidence Act. The situation became further muddled when counsel indicated that it was her intention to not only serve the report of Dr. MacLeod but also to call her as a witness. It was later resolved that they would only serve the reports and make the doctors available for cross-examination if I allowed their evidence to be heard.
I determined that the motion to dismiss Dr. Ross’s report was premature and that the issue of any bias on his behalf should be determined at the voir dire, when the Defendant seeks qualify and call Dr. Ross as a witness.
Leave to Call More Than 3 Expert Witnesses
[11] The factors for granting leave to qualify more than three expert witnesses is set out in the decision of Justice Ferguson in K.N.B. v. Wu, at para. 35:
A decision on motions like this will necessarily be fact driven, and consequently, it is not possible to identify a fixed list of relevant factors. However, I conclude the following are relevant factors in this case taking into account the caselaw and the circumstances of this case:
a. Whether the opposing party objects to leave being granted. While I can imagine situations where both parties are “overkilling” the evidence, I think that if both parties have agreed on certain numbers of experts or on filing reports from some experts in addition to calling others then this is a significant factor. While there is certainly public expense involved, in civil cases, the parties bear a very substantial portion of the costs of trial which is the crux of the rule. I believe contested motions on the issue of granting leave are rare. I think that where there is no opposition then leave is usually granted;
b. The number of expert subjects in issue;
c. The number of experts each side proposes to have opined on each subject;
d. How many experts are customarily called in cases with similar issues?
e. Will the opposing party be disadvantaged if leave is granted because the applying party will then have more experts than the opposing party?
f. Is it necessary to call more than three experts in order to adduce evidence on the issues in dispute?
g. How much duplication is there in the proposed opinions of different experts?
h. Is the time and cost involved in calling the additional experts disproportionate to the amount at stake in the trial?
The Scope of Section 12
[12] Before addressing the application of these factors to the facts of this case, it is necessary to address the scope of s. 12 of the Evidence Act. It must be remembered that s. 12 was enacted long before the requirements imposed by Rule 53, which now control the admissibility of expert reports and litigation expert evidence. Section 12 was also enacted long before the Court of Appeal made a distinction between litigation experts, participant experts, and non-party experts in Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721.
[13] As Justice Edwards commented in Davies v. The Corporation of the Municipality of Clarington, 2016 ONSC 1079, 95 M.V.R. (6th) 231, at paras. 30-31,
[t]he policy behind s. 12 of the Evidence Act also helps to inform my decision regarding the necessity of calling more than one expert on any given issue. While some may think that the proliferation of experts is something new to civil litigation, this in fact is an issue that has been around for nearly 100 years. …
Section 10 of the Evidence Act, which became law in 1914, is for all intents and purposes the same as s. 12 of the Evidence Act, which today governs the need to seek leave to call more than three expert witnesses. Given the comments of our Court of Appeal which date back to 1925, it appears that the policy and purpose behind s. 10 and now s. 12 was, and remains, to grant leave only where the time and expense involved in calling more than three experts is justified.
[14] I do not accept the Plaintiffs’ argument that s. 12 of the Evidence Act pertains to litigation experts only. As noted, the scope of s.12 was canvassed by Justice Edwards in the Davies decision. He makes the following comments at para. 3:
The parties to a civil trial are entitled to a fair trial. They are not, in my view, entitled to a trial that will hear every relevant piece of evidence, where the evidence becomes repetitive of other evidence already heard. In short, a trial must be fair, but the evidence - which is in the control of the parties, must be placed before the court in a cost effective and timely fashion.
[15] In that case, the plaintiff proposed to call 18 litigation and 18 participatory experts. In his analysis, Justice Edwards makes no distinction between litigation experts and participatory experts.
[16] Justice Edwards goes on to say this at paras. 25-27, 29:
It can be beyond doubt that counsel must know that they call the case they feel will ensure that justice will be done for their client. That case, however, cannot include a multitude of evidence that is duplicative of other evidence already called. The lawyers will always, so says the traditional final admonition to the jury, be left to present the case. The trial judge will always now have a more fundamental gatekeeper role to play in the evidence that is called and the length of the trial. As this case before me amply demonstrates, a trial that is now in its fourteenth week is a trial few, if any, Canadian citizens could afford to mount.
A treating doctor can now be both a fact witness and an expert offering opinion evidence. If that treating doctor is to offer opinion evidence, then in my view the fundamental rules as they relate to expert evidence are engaged. As such, opinion evidence must meet the requirements laid down by the Supreme Court of Canada in R. v. Mohan, [1994] 2 S.C.R. 9, at para. 17, to be admissible. They are (a) necessity in assisting the trier of fact; (b) relevance; (c) the absence of any exclusionary rule; and (d) a properly qualified expert. For the purposes of the following discussion, I am going to assume that all of the proposed treating doctors that the plaintiff wishes to call can meet the requirements of relevance. As well, I assume they can be properly qualified as an expert and that there is no exclusionary rule that would preclude their evidence. I focus my discussion on whether the evidence of the proposed treating doctors, who might offer opinion evidence, is necessary to assist me as the trier of fact.
Trial judges are constantly reminded of their obligation to act as the gatekeeper when it comes to the admission of expert evidence. That gatekeeper function involves a cost benefit analysis. In this case, accepting the various treating doctors may be properly qualified and may offer relevant evidence, acting as the gatekeeper I fundamentally ask the question, is their evidence necessary. Will their evidence add anything to what may already be before the court, or is it simply duplicative and for want of a better expression, is it an example of “piling on?”
Fundamentally then, I ask, will the additional evidence of the various treating doctors whom the plaintiff wishes to call add anything to this case that I will not already have, and equally as important will their evidence waste time and resources.
[Emphasis added.]
[17] Justice Edwards concludes with the following at para. 35:
The plaintiff has a total of 18 litigation experts and 18 participant experts. In two key areas, orthopaedics and neurology, the plaintiff has two orthopaedic surgeons who are litigation experts and two who are participant experts. The same applies in the field of neurology, except the plaintiff has three litigation experts. The plaintiff will have to decide which of these experts will best assist the court in coming to an informed and just decision. It was never the intention of s. 12 of the Evidence Act, that leave should be given to allow such duplicative evidence. To the extent that the plaintiff intends to call any of the proposed participant experts to give opinion evidence that strays beyond the opinion evidence of a treating doctor, leave will not be granted. In that regard, I offer as an example the opinions reproduced above in para. 10, where Dr. Baranowski offers his opinion on causation and agrees with the opinions of various litigation experts engaged by the plaintiff to offer opinion evidence to this court.
[Emphasis added.]
[18] In discussing participant experts, Justice Edwards adds the following at paras. 38-40:
It might be argued that to exclude the opinion evidence of a participant expert will be to deny the plaintiff the opportunity to properly place before the court relevant evidence that will ultimately assist me in the assessment of the plaintiff’s damage claim. Perhaps another way of looking at this argument would be to suggest that the court should simply allow the evidence in and let it all go to weight. Fundamentally, to adopt such an approach would be an abrogation of this court’s role as gatekeeper, a role that has been emphasized for many years. In R. v. J. (J.-L.), 2000 SCC 51, [2000] 2 S.C.R. 600, Justice Binnie stated:
The court has emphasized that the trial judge should take seriously the role of “gatekeeper”. The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties can go at the end of the day to weight rather than admissibility….
Having reviewed some of the reports of the treating doctors that the plaintiff wishes to call, I have come to the conclusion that many of these doctors are pure fact witnesses whose evidence falls clearly within the definition of a participatory witness. Others do not and offer opinion evidence that goes well beyond the normal role of a treating doctor in terms of history, treatment and prognosis. Those experts, such as Dr. Baranowki, would have to comply with the requirements of Rule 53.03. Even assuming they had prepared reports that complied with Rule 53.03, leave would still have been required under s. 12 of the Evidence Act. In a situation where the plaintiff intends to call more than one expert in the same specialty, it would be a rare occasion where that leave should be granted. The party seeking to call more than one expert in the same specialty has, in my view, a very high onus to establish why the court should allow evidence that would be repetitious of evidence already received. Such expert evidence would not be necessary, as it would not assist the court in coming to its decision on what damages to award. Fundamentally, it would fail to meet one of the important requirements of Mohan.
The plaintiff does not have to seek leave to call, as a participatory expert, any of the plaintiffs treating doctors to the extent their evidence relates to the history taken from the plaintiff; the treatment afforded the plaintiff; the diagnosis of the doctor; and the doctor’s prognosis as revealed in his clinical notes. To the extent a doctor proceeds to offer opinion evidence, along the lines set forth in the report of Dr. Baranowski, the plaintiff will have to seek leave to call that evidence if the plaintiff also intends to call the evidence of a litigation expert in the same specialty. In short, the plaintiff and the defendants will be limited to one expert per specialty unless leave is first sought from the court.
[Emphasis added.]
The Law, Applied
[19] The full list Ms. McNamee’s proposed litigation participant and non-party experts is outlined below:
| Name | Role | Area of expertise |
|---|---|---|
| Dr. Tammie Ricci | litigation expert | psycho-vocational assessment |
| Dr. Kate Metcalf | participant expert | psychologist no. 2 |
| Dr. Frey | participant expert | psychologist no. 3 |
| Robert Anderson | participant expert | psychotherapist |
| Dr. Suddaby | litigation expert | psychiatrist no 1 |
| Dr. Siu | litigation expert | psychiatrist no. 2 |
| Susan Yungbluth | participant expert | physiotherapist no. 1 |
| Donna Matheson | litigation expert | occupational therapist no. 1 |
| Rebecca Robertson | participant expert | occupational therapist no. 2 |
| Carly Getz | participant expert | physiotherapist no. 2 |
| Dr. Ryan Benedict | participant expert | chiropractor |
| Dr. Charania | participant expert | family Dr. |
| N. Beck-Livingstone | litigation expert | vocational expert |
| Dr. Kevin Smith | litigation expert | pain specialist |
| Marie’s Larouche | litigation expert | actuary |
| Dr. Peter Judge | litigation expert | psychologist no 4 |
[20] In addition, the Plaintiffs seek to file s. 52 reports from the following individuals:
| Name | Role | Area of expertise |
|---|---|---|
| Dr. Roy | psychiatrist no. 3 | |
| Dr. MacLeod | psychologist no. 5 |
[21] In its factum, the Defendant submits that the Plaintiff, Ms. McNamee, should be permitted to call one psychiatrist, one occupational therapist, and one psychologist. In argument, Mr. Ozere suggested that Ms. McNamee should be limited to one “mental health” professional; be it a psychologist or a psychiatrist.
[22] The Defendant does not take issue with both treating physiotherapists testifying, but objects to the late service of Ms. Yungbluth’s report. They also seek a ruling limiting the scope of her evidence.
[23] The Defendant also takes issue with the late addendum report of Ms. Larouche, which increases Ms. McNamee’s damages by $216,852.
Applying the Relevant Factors to this Case
1. Whether the opposing party objects to leave being granted.
[24] The Defendant opposes leave being granted.
2. The number of expert subjects at issue.
[25] Causation is the major issue in this case. The diagnosis of a somatoform pain disorder, a major depressive disorder, and an alcohol abuse disorder are at issue, as is the extent of impairment and the requirement of treatment.
3. The number of experts proposing to opine on each subject.
[26] On each of these issues, the Plaintiffs seek to call doctors Smith, Ricci, Suddaby, Siu, Frey, and Judge. The Defendant will only have two experts: Dr. Devlin, and Dr. Ross.
4. How many experts are customarily called in cases with similar issues?
[27] In chronic pain cases, it is not unusual to have more than one expert – each with different expertise – to comment on the issue of causation.
5. Will the opposing party be disadvantaged if leave is granted because the applying party will then have more experts than the opposing party?
[28] I accept that this is not simply a question of numbers. Moreover, an opposing party cannot choose to limit their expert witnesses and expect the opposite party to be bound by their choice. Rather, as set out in Davies, a disadvantage arises where a party is met with the “piling on” of experts.
[29] An additional disadvantage occurs when reports are served late. In the present case, we have in late service the reports of Dr. Suddaby, Dr. Siu, Dr. Tammie-Ricci, and Ms. Yungbluth, as well as the updated report of Ms. Larouche. The Defendant has maintained its position that it will need an adjournment if Dr. Siu is permitted to testify.
[30] The Plaintiffs’ position on this issue is difficult to understand. The Plaintiffs maintain that Dr. Siu’s report, from a psychiatrist with an addiction specialty, is not duplicate to the report of Dr. Suddaby. They also maintain that it is a necessary piece of evidence. At the same time, the Plaintiffs suggest that the Defendant should be limited to calling Dr. Ross, and that no adjournment should be granted.
[31] When the Plaintiffs set their action down for trial two years ago, their counsel certified that all expert reports had been exchanged. In advance of the first pre-trial in August 2018, they signaled that further expert reports might be necessary. At a second pre-trial in April 2019, no such notice was given, and the evidentiary record remained the same. All of this changed in the four months preceding trial, when the Plaintiffs’ counsel served two psychiatric reports (each with their own addendum), a psycho-vocational report, an updated actuarial report, and a physiotherapist report.
[32] In short, while the Defendant disputed causation from the outset, they are now being presented with a completely new evidentiary record on the eve of trial.
[33] To their credit, the Defendant would prefer not to adjourn the trial. They instead seek to limit the number of experts called, as well as the terms and conditions of any relief granted.
6. Is it necessary to call more than three experts in order to adduce evidence on the issues in dispute?
7. How much duplication is there in the proposed opinions of the different experts?
8. Is the time and cost involved in calling the additional experts disproportionate to the amount at stake in the trial?
[34] These last three factors will be discussed together.
[35] I turn first to the Plaintiffs’ proposal regarding all three psychiatrists.
Dr. Paul Roy, Psychiatrist No. 1
[36] Ms. McNamee was seen by Dr. Roy at the request of her family doctor. This was to determine her motor vehicle accident (“MVA”)-related psychiatric diagnoses and impairments, as well as to provide treatment recommendations. Dr. Roy did not provide any treatment himself.
[37] At page 6 of his report, dated May 10, 2018, he states the following:
Based on the information at hand, the current diagnoses (DSM 5) are of major depressive disorder, recurrent, moderate, without psychosis; alcohol use disorder, and somatic symptom disorder, predominantly pain. From the history I have, it appears that the subject MVA triggered an episode of major depression. The diagnosis of somatic symptom disorder appears to be entirely attributable to the subject MVA.
[38] As will be seen, these diagnoses are the same as those provided by Dr. Suddaby.
Dr. Suddaby Psychiatrist No. 2
[39] Dr. Suddaby has delivered two reports. In his first report, dated August 20, 2019 (but not served until September 4, 2019), he concludes that Ms. McNamee’s major depressive disorder was aggravated as a result of the MVA. At page 41, he concludes that Ms. McNamee meets the diagnostic threshold for somatic symptom disorder with predominant pain. He notes that this is consistent with Dr. Roy’s diagnosis and that of the psychologists.
[40] Dr. Suddaby also determined that Ms. McNamee met the diagnostic criteria for alcohol use disorder. He notes that, at present, Ms. McNamee requires addiction treatment as part of her treatment program. He adds as follows at page 42:
I note that general comments on alcohol use disorder and its diagnoses is within the scope of expertise of general psychiatric evaluation. However, I note that I am not an addiction specialist and I would defer to an addiction medicine specialist for a definitive comment on Ms. McNamee’s alcohol use disorder and its treatment. [Emphasis added.]
[41] I will come back to this comment when I refer to Dr. Suddaby’s diagnoses.
[42] At page 45, Dr. Suddaby concludes that the three conditions mentioned (i.e., major depressive disorder, somatic symptom disorder, and alcohol use disorder), in combination with others, act in a negatively synergistic fashion to amplify her symptoms and impairment.
[43] At page 46, Dr. Suddaby offers his opinion that the preponderance of negative prognosticators indicates that it is probable that some or all of Ms. McNamee’s current level of impairment will be permanent.
[44] With respect to the alcohol use disorder, he suggests obtaining a definitive comment from an addiction medicine specialist.
[45] First, I note that Dr. Suddaby states that comments on alcohol use disorder and its diagnoses are within the scope of expertise of the general psychiatry evaluator. There is no issue as to whether he is qualified as an expert in that area. While he defers to an addiction medicine specialist for definitive comment on Ms. McNamee’s alcohol use disorder and its treatment, a definitive comment is not necessary. Ms. McNamee must establish her case on a balance of probabilities, and that is the very test that Dr. Suddaby relies upon in his subsequent report.
Dr. Siu Psychiatrist No. 3
[46] In a report dated November 10, 2019, Dr. Siu makes a diagnosis of a persistent depressive disorder and of an alcohol use disorder. However, at page 43 of the report, his opinion differs with that of Dr. Suddaby in that he states the following regarding condition permanence:
At the present time, I’m not of the opinion that Ms. McNamee’s impairments are permanent given that she’s not had an adequate course of treatment to address her alcohol use disorder. If she were to complete an adequate course of treatment and continued to experience ongoing impairment one would be in a better position to determine that her impairments are likely to be permanent in nature.
[47] This drew a response from Dr. Suddaby in his report dated December 23, 2019. Therein, he comments on Dr. Ross’s report and on Dr. Siu’s report. At page 17, Dr. Suddaby says this:
Dr. Siu’s conclusions with respect to the diagnosis of major depressive disorder, the impairment arising out of the major depressive disorder, and the fact that, but for the subject MVA, Ms. McNamee would not have developed a current episode of major depressive disorder – are in alignment with my own opinions expressed in my prior report. I’m in agreement with Dr. Siu when he indicates that the subject MVA was contributory to an aggravation of Ms. McNamee’s alcohol use disorder and that this condition contributes to ongoing significant levels of impairment. I am in agreement with Dr. Siu’s opinion that there is a poor prognosis for Ms. McNamee being able to engage in treatment and demonstrate symptomatic or functional instrument that are significant enough for her to be able to return to her prior normal activities including housekeeping and remunerative activities.
I am in disagreement with Dr. Siu’s opinion that Ms. McNamee’s impairments are not permanent. I am in agreement with Dr. Siu that if Ms. McNamee were able to participate in evidence-based treatment that there is a possibility of symptomatic and functional improvement with respect to her alcohol use disorder and major depressive disorder.
However, given the medical legal definition of permanency is based upon the balance of probabilities. Given the preponderance of poor prognostic factors outlined by Dr. Siu (and myself), it is not probable that Ms. McNamee will be able to achieve significant symptomatic or functional improvement and therefore her current impairments are considered permanent from a medical legal perspective. That is to say there is a 49% (or less) chance that Ms. McNamee will be able to achieve significant symptomatic or functional improvement.
[48] This report elicited a response from Dr. Siu, dated January 5, 2020 and delivered in the course of the argument on this motion. Dr. Siu now says this in this report at pages 10 and 11:
I also had an opportunity to review my response to the question whether or not Ms. McNamee’s impairments were expected to be permanent, bearing in mind that permanent means indefinite…. Taking into consideration my description of Ms. McNamee’s prognosis a resolution being poor I am of the opinion that Ms. McNamee’s of the psychological impairments are likely permanent given it is unlikely (i.e. less than 50% chance) that she would have a resolution for psychological impairments given the multiple negative prognostic factors that have documented page 43 of my report. It is notable that psychological impairments I’m referring to relate to Ms. McNamee’s alcohol use disorder and major depressive disorder. I’m not taking into consideration Ms. McNamee’s diagnosis of somatic symptom disorder.
[49] In summary, Dr. Siu and Dr. Suddaby are now in total agreement that any alcohol treatment program is unlikely to affect Ms. McNamee’s prognosis. The difference in Dr. Siu’s expertise does alter the conclusions reached.
[50] Therefore, Ms. McNamee has not met the high threshold required to call three psychiatrists. In the circumstances, the experts in question have come to the very same conclusions. She will thus be limited to calling one psychiatrist.
The Psychologists
Dr. Tammie Ricci, Psychologist No. 1 (and Ms. Beck-Livingstone)
[51] My reasons for including Ms. Beck Livingston in this discussion will become apparent presently.
[52] Dr. Ricci identifies her area of expertise as clinical and rehabilitation psychology. Ms. Beck Livingston’s expertise is in the area of vocational evaluation. Ms. Beck Livingston’s expertise would be employed in determining Ms. McNamee’s transferable employment skills given her limitations.
[53] Although the report of October 18, 2019 is jointly authored, it states this at page 38:
Based on the current assessment findings as well as review of documentation and Ms. McNamee’s file, it is Dr. Ricci’s opinion that she (Ms. McNamee) presents with the following DSM-5 disorders:
− persistent depressive disorder with anxious distress with persistent major depressive episode, moderate to severe
− alcohol use disorder, severe
− somatic symptom disorder, predominantly pain, persistent, severe.
[Emphasis added.]
[54] In response to the question of whether Ms. McNamee will be able to return to any form of remunerative employment, Dr. Ricci says the following at page 39:
In Dr. Ricci’s opinion, Ms. McNamee’s psychological conditions of escalated and her ability to function has deteriorated over time. Furthermore, her vocational functioning has shown a progressive decline since the accident, despite her strong work ethic and determination to push through in spite of pain and mood symptoms. Dr. Ricci concurs with doctor Suddaby his opinion that it is probable that Ms. McNamee should’ve been out of the workforce on mental health disability and receiving multidisciplinary evidence-based treatment several years ago.
The report goes on to conclude that it is unlikely that Ms. McNamee will be able to return to any type of remunerative employment given her current psychological conditions.
[55] This assessment is within Dr. Ricci’s area of expertise. Given that it is her opinion that it is unlikely that Ms. McNamee will ever return to work, Ms. McNamee has not demonstrated why the additional evidence of Ms. Beck Livingston, which would be to the same effect, is necessary.
Dr. Robert Frey, Psychologist No 2.
[56] Dr. Frey assessed Ms. McNamee to determine her entitlement for accident benefits, and was retained to provide opinion evidence only. While Ms. McNamee categorizes Dr. Frey as a non-party expert, I have already concluded that this label is not definitive.
[57] On March 30, 2016, Dr. Frey diagnosed Ms. McNamee with a major depression and alcohol use disorder. When asked if Ms. McNamee suffered from a psychological condition or impairment solely, directly, or causally related to the MVA, he answered as follows:
From a psychological perspective, Ms. McNamee suffers from a psychological condition or impairment that is solely, directly and causally related to this MVA of February 11, 2014; major depression, due to another medical condition (i.e. neck injury) and alcohol use disorder, mild.
[58] In a subsequent report dated March 15, 2017, he repeated that conclusion.
Dr. Lindsay MacLeod, Psychologist No. 3
[59] Ms. McNamee proposed to file Dr. MacLeod’s report pursuant to s. 52 of the Evidence Act. In her report dated June 28, 2016, Dr. MacLeod made the following DSM-5 diagnoses:
• major depressive disorder, recurrent, but mild with anxious distress;
• alcohol use disorder, mild.
She added that her opinion is consistent with that formulated by Dr. Frey.
Dr. Karen Metcalfe, Psychologist No.4
[60] Dr. Karen Metcalfe provided treatment to Ms. McNamee, and her progress notes were produced. I see no issue with her testifying about her observations, or with her reporting on the outcomes of the therapy progress. The Defendant does not oppose this.
Dr. Peter Judge, Psychologist No. 5
[61] Dr. Peter Judge is the psychologist retained by the defence and is a litigation expert. At the time of his report dated August 3, 2018, Ms. McNamee was still working, and Dr. Judge was somewhat optimistic about her prospects for recovery. Otherwise, his report is the same as the others. He offers the same opinion on causation; the diagnoses of somatic symptom disorder with predominant pain, major depressive disorder, and alcohol use disorder; and the permanence of her impairments.
[62] I agree with the defence that the reasons Ms. McNamee wishes to call Dr. Judge are to pile on the reports and because he was retained by the defence.
[63] Ms. McNamee is therefore permitted to call only one psychologist.
The Occupational Therapists
Donna Matheson
[64] The occupational therapy, housekeeping, and home maintenance assessment report of Donna Matheson, dated July 9, 2018, recommends occupational therapy, indoor housekeeping assistance, outdoor housing assistance, and participation in a multidisciplinary, group pain-management program.
Rebecca Robertson
[65] Rebecca Robertson provided a report dated July 19, 2018. She also gave a functional occupational therapy assessment and recommended occupational therapy.
[66] Both of the aforementioned occupational therapists were retained by Ms. McNamee. The more comprehensive report is that of Ms. Matheson. Ms. McNamee has not demonstrated the need to call two occupational therapists on the same issues.
[67] Once again, the Plaintiffs have failed to discharge the burden of establishing why a second expert, with the same specialty, needs to testify.
Susan Yungbluth, Physiotherapist
[68] Most of the debate on this motion focused on whether Ms. McNamee could call more than three experts without regard to their being labelled as litigation experts, participant experts, or non-party experts. The same is not true with respect to Ms. Yungbluth.
[69] Ms. McNamee maintains that Ms. Yungbluth is a participant expert who has provided treatment and, in the course of that treatment, has made certain recommendations.
[70] Ms. Yungbluth provided a report dated December 16, 2019, which was served on December 27, 2019. This was quickly followed by an addendum report by the actuary, Maryse Larouche, wherein she provides the present value of the hydrotherapy sessions recommended by Ms. Yungbluth.
[71] The Defendant argues that Ms. Yungbluth is caught by Rule 53, as her report was prepared solely for the purposes of litigation. I agree with that submission.
[72] Prior to preparing her report, Ms. Yungbluth had last seen Ms. McNamee in May 2018. Ms. McNamee had discontinued hydrotherapy sessions after that date.
[73] Ms. McNamee did not attend for further hydrotherapy sessions on December 16, 2019. She was there to undergo a further assessment and to obtain treatment recommendations solely for the purposes of this litigation.
[74] This fact is demonstrated by Ms. Yungbluth’s report having been relied upon by Ms. Larouche to come up with a present value for the hydrotherapy sessions over the balance of Ms. McNamee’s lifetime. She arrives at a figure of $158,738. There is nothing in Ms. Yungbluth’s report that suggests that these hydrotherapy sessions would be of any value to Ms. McNamee over her lifetime. Ms. Larouche’s assumption is not supported by any evidence.
[75] While a physiotherapist might often be considered a participant expert, the Court of Appeal in Westerhof said this at para. 62:
Similarly, I conclude that rule 53.03 does not apply to the opinion evidence of a non-party expert where the non-party expert has formed a relevant opinion based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation.
[Emphasis added.]
[76] Accordingly, Ms. Yungbluth can testify with respect to her observations of Ms. McNamee during the time Ms. McNamee attended her hydrotherapy sessions, which was up until May 2018. Ms. Yungbluth may also testify to any observations that she may have made of Ms. McNamee in December 2019. However, Ms. Yungbluth is not permitted to give opinion evidence with respect to the benefits of any future hydrotherapy sessions for Ms. McNamee, and Ms. Larouche cannot rely on Ms. Yungbluth’s report in updating Ms. Larouche’s previous report.
[77] Ms. Larouche can provide a present value for any future psychotherapy sessions should Ms. McNamee call Dr. Ricci as their psychology expert.
[78] Cost of these motions are reserved to the conclusion of the trial.
Mr. Justice Robert N. Beaudoin