COURT FILE NO.: CV-17-588513
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Cecile Zaifman, Plaintiff
AND:
Dr. Harpreet Sangha, Dr. Pinder Sahota, Dr. Michael Olsen, Amy Robidas, University Health Network and Toronto Rehabilitation Institute, Defendants
BEFORE: D.A. Wilson J.
COUNSEL: Justin Linden, for the Plaintiff
Junior Sirivar & Amanda Iarusso, for the Defendants, Dr. Harpreet Sangha, Dr. Michael Olsen and Dr. Bhupinder Sahota
Robyn Grant & K. Hepp, for the Defendants, University Health Network and Amy Robidas
HEARD: In Writing
ENDORSEMENT
1This is a medical negligence case which is fixed to commence trial on September 19, 2022 for a period of 4 weeks with a jury. It arises from an injection of anaesthetic the Plaintiff had in the hip joint by Dr. Sahota, a physiatrist. Following the procedure, the various Defendants left the room. The Plaintiff alleges she fell as she was getting off the table and that the doctors and nurse were negligent in failing to ensure that she was helped off the table, given the circumstances. Furthermore, she alleges there was no informed consent obtained for the procedure.
2I have presided over several pretrials, the first of which was in 2021. Initially, the issues of liability, causation and damages were in dispute; more recently the issue of damages has been resolved so the trial will proceed on the issues of whether or not the various Defendants breached the applicable standard of care and if so, whether the negligence caused damage to the Plaintiff.
3In the initial pretrial brief submitted by counsel, each party included a list of all witnesses they anticipated calling at trial. The list from the Plaintiff included various experts: Dr. Spinner, an American pain specialist; Dr. Syed, a physiatrist and the Plaintiff’s treating doctor; Dr. Kreder, an orthopedic surgeon; Dr. Waddell, an orthopedic surgeon; and Dr. Waseem, a physiatrist. In the defence pretrial brief, the defence had expert reports from Dr. Williams, a physiatrist, on the standard of care issue and from the orthopedic surgeon Dr. Paitich on the causation issue. Defence counsel noted that they objected to the Plaintiff calling more than 1 expert of the same specialty.
4At a subsequent pretrial held April 25, 2022, one of the issues for discussion was the number of expert witnesses the Plaintiff proposes to call at trial. The orthopedic surgeons both offer opinions on the standard of care issue in their reports and the physiatrists offer opinions on both standard of care and causation.
5At the April pretrial, I advised Mr. Linden that as part of the trial management process, I intended to deal with the number of experts who would be called at trial and the possible duplication of evidence from experts of the same specialty. Mr. Linden’s position was that such a decision belonged to the trial judge, and a pretrial judge undertaking trial management ought not to make any orders limiting the number of experts a party could call. I advised counsel that I intended to convene another case conference closer to the trial date to specifically deal with trial management issues which included how long the trial would take, the form of the questions for the jury, what witnesses would be called, how long their evidence would take, whether there would be any challenges to the qualifications of a proposed expert, as well as other matters that would affect the efficiency of the trial process.
6The solicitor for the Plaintiff has served reports from multiple experts who offer opinions on the same issue. In addition, one of the Plaintiff’s experts is an American physician who in his report offers an opinion on the standard of care of a physician in Ontario, despite the fact that he has never practiced in Ontario. Defence counsel has asked the solicitor for the Plaintiff which experts he intends to call at trial on which specific issue; the solicitor for the Plaintiff’s response was that he would advise in due course, but that he was not prepared to make the election at the time of the pretrial.
7In my endorsement following the April pretrial, I directed Mr. Linden to advise defence counsel by July 31, 2022 if he intended to call the American physician as an expert at the trial and on what issue(s). I made other trial management orders at the pretrial, governing such matters as demonstrative evidence, the joint document brief and the form of the jury questions. A further trial management conference was set for August 24, 2022.
8In a letter dated July 13, Mr. Linden wrote to me confirming his view that as the pretrial judge, I ought not to make determinations concerning witnesses to be called at trial. He advised, “We will elect which of the experts to call and seek leave accordingly at trial.” With respect to the case against the Hospital and nurse, he noted, “We have a case to prove against the hospital and will call expert evidence on that as well.” He did not provide a date by which decisions concerning expert witnesses at trial would be made.
9In advance of the trial management conference set for August 24, 2022, in accordance with the procedure in Toronto, counsel were required to fill out the Report to the Trial Judge and submit it to the Court. That report requires counsel to review the evidence and confer in advance of the pretrial conference on matters such as joint document briefs, demonstrative evidence to be used, challenges to experts being qualified at trial and the length of trial. Counsel are required to list each witness who will be called at trial along with a time estimate for their evidence in chief and the cross examination. In that report, counsel for the Defendant Physicians again raised the issue of which experts the Plaintiff would be calling at trial, as Mr. Linden had not confirmed this, despite my earlier order.
10At the trial management meeting, I reviewed the proposed witness lists, as well as the various other matters bearing on readiness for trial. Mr. Linden advised that he had 2 physiatrists and he had not yet decided if he was calling both of them or just one and if so, which one. He advised that he had not yet decided which orthopedic surgeon he would call to testify at trial; he indicated likely he would call Dr. Kreder but he would not confirm that to defence counsel or to the Court. Both of the orthopedic surgeons have delivered Rule 53 reports on the issue of the standard of care.
11Mr. Linden also has expert reports from two physiatrists, Dr. Syed and Dr. Wasser as well as an opinion from the American pain specialist, Dr. Spinner. The report from Dr. Spinner contains an opinion on the issue of whether there was a breach of the standard of care in the treatment provided to the Plaintiff and also on the issue of causation. At the trial management meeting, Mr. Linden would not commit to which experts he would be calling at trial. Again, he submitted that the decision of which experts would be permitted to testify at trial was within the province of the trial judge and he objected to my making the determination as part of the trial management process.
12Following the meeting, I issued an endorsement dated August 24 in which I dealt with various matters concerning the evidence at trial. I made the following orders:
The Rules of Civil Procedure, specifically Rule 50, permits a pretrial judge undertaking trial management to make orders that are necessary for an efficient trial. Mr. Linden submits that the number of experts counsel may call is an issue for determination by the trial judge; I do not agree. Counsel requires leave of the Court to call more than 3 expert witnesses. It is unnecessary and duplicative for the Plaintiff to call more than 1 expert of the same specialty to opine on the same issue. This is a jury trial and counsel’s efforts should be focused on making the issues for adjudication as clear as possible for the triers of fact. It is unnecessary and a waste of valuable court time for the jury and judge to hear opinions from experts in the same area of specialty on the same issue. Dr. Kreder and Dr. Waddell are both orthopedic surgeons in Ontario. There is no need for both of them to testify on the issue of standard of care and/or causation. Mr. Linden is to decide which of these 2 experts he will call at the trial by September 2, 2022 and inform defence counsel.
Dr. Spinner has never practiced in Ontario; it is unclear on what basis he would be qualified by the Court to offer an opinion on the correct standard of care of an Ontario physiatrist. Dr. Waseem is an Ontario physiatrist who would prima facie be entitled to opine on standard of care and causation in this case. Mr. Linden is to decide if he wishes to call Dr. Spinner at trial on the issue of causation or Dr. Waseem; he may wish to call the latter on the standard of care issue, which is separate from the causation issue. In any event, Mr. Linden is to advise defence counsel by September 2 if it is his intention to call Dr. Spinner to opine on the causation issue or if he elects to call Dr. Waseem for that issue.
As I advised counsel, professional negligence cases are challenging for a jury and it is counsel’s duty to the Court to ensure that the issues for the jury to determine are made as clear as possible for them and that the trial proceed in an expeditious fashion, making economical use of the time of the Court and of the jurors who have agreed to give up their personal time to serve as jurors in this case.
13Following release of my endorsement, Mr. Linden wrote to me advising that he did not know that an order would be made at the trial management meeting concerning the expert evidence at trial. He indicated that any decision governing expert evidence must be made “on the record” and that it ought to be made by the trial judge.
14Counsel for the Defendant Physicians then wrote to me taking strong issue with the contents of Mr. Linden’s letter of August 31, noting it was a collateral attack on the order I had issued after the trial management meeting.
Analysis
15The Rules of Civil Procedure set out the matters to be considered at a pretrial conference. Rule 50.06 includes: possible settlement; simplification of the issues; the estimated duration of the trial; the number of expert witnesses and other witnesses that may be called by each party; and any other matter that may assist in the just, most expeditious and least expensive disposition of the proceeding.
16Rule 50.07 specifically directs that a judge at a pretrial can make any order that the judge considers necessary or advisable with respect to the conduct of the proceeding.
17Trial time is precious, particularly as the Court emerges from the pandemic, where many trials were adjourned because of the inability of the Court to undertake trials. In particular, jury trials such as the instant case, must be done in the most efficient manner as possible so as to minimize the inconvenience to the jurors. In my view, any procedural matters that can be addressed prior to the commencement of the evidence ought to be dealt with as part of the trial management. This includes document production, demonstrative evidence, an agreed statement of facts, agreement concerning exhibits and the streamlining of witnesses.
18A party requires leave of the Court to call more than 3 expert witnesses. In cases where counsel has retained experts of the same specialty to offer opinions on the same issue, in my view, that is something that a pretrial judge ought to deal with in advance of the trial and is specifically contemplated by Rule 50.06. Trial preparation takes time, and it makes no sense for the opposite party to prepare cross examinations of 2 different experts because they don’t know which one will be testifying at trial. The “cat and mouse” game that Mr. Linden is playing by refusing to elect which expert to call until the trial has started is not acceptable. Each party is entitled to know the case to be met at trial and to know how the opposing party intends to prove its case. This includes providing will say statements of the anticipated evidence of lay witnesses as well as confirming which expert will testify on what issue, provided the expert has served a report in compliance with Rule 53 of the Rules.
19While Rule 50 is not specific about the types of orders that can and ought to be made by the pretrial judge, orders dealing with trial management are different than substantive orders made by a trial judge. For example, if counsel at a trial management meeting indicates that there will be an objection to opposing counsel calling Dr. X as an expert because he/she does not possess the proper expertise to offer an expert opinion to the Court on a particular subject, that is a matter for the trial judge to deal with by way of a voir dire. Similarly, the submission that an expert is biased or that the contents of a written report are outside the scope of the expert’s specialty are determinations to be made by the trial judge. These matters are not the same as directing counsel to decide which expert will be called in advance of trial where there is duplication of expertise and opinion. Having 2 experts in the same area of specialty offer opinions at trial on the same issue is repetitive, unnecessary, and prolongs the length of trial, increasing costs. In my view, a pretrial judge conducting trial management is tasked with such determinations in order to ensure the trial proceeds expeditiously. There is simply no upside to any party waiting until trial to advise the opposing party which expert will be testifying at trial on what issues.
20The recent amendments to Rule 53.03 governing late service of expert reports which came into effect on March 31, 2022 are intended to address the problem with service of expert reports which do not comply with the timelines set out in the Rules. If counsel intends to rely on expert opinion at trial, the expert reports need to comply with Rule 53.03 and to be served in advance of the pretrial conference. This requirement is to ensure that parties know the case that will be presented at trial and how the opposing party intends to prove its case. The Rule and the recent amendments are directed to early and full disclosure of expert opinions. The intended consequences of this Rule would not be realized if counsel were allowed to serve a variety of expert reports and only decide at trial which expert opinions would be relied on as part of the case.
21In my view, the pretrial conference is a critical step in the litigation process. It has two important functions: to determine if the case is capable of resolution without proceeding through a trial; and if not, to streamline the case as much as possible so the issues for adjudication are reduced to the ones that cannot be resolved and to ensure that the trial will proceed as smoothly and efficiently as possible. In order for the pretrial to be productive, it is essential that counsel have served all of their expert reports in accordance with Rule 53.03 and that they are familiar with the anticipated evidence of all of the lay witnesses.
22The requirement that counsel confer and complete the Report to Trial Judge Report in advance of the pretrial is directed to exactly that goal and to ensure counsel are prepared to discuss in a fulsome fashion the evidence that will be presented at trial.
23Mr. Linden’s submission that he was somehow taken by surprise by my endorsement of August 24 dealing with the number of expert witnesses to be called by the Plaintiff is without merit. This issue was canvassed at the original pretrial in 2021, and again in April 2022, when I made an endorsement that specifically commented on the issue and directed the solicitor for the Plaintiff to advise defence counsel of his witness list for trial. The submission that a determination of whether a party can call duplicative evidence must be made in court before the trial judge is incorrect and contrary to both the spirit and the content of the Rules.
Date: September 6, 2022