2023 ONSC 4100

Court File and Parties

Court File No.: CV-4405-00 and CV-18-4440-00 Date: 2023 05 16 Ontario Superior Court of Justice

Between: KENISHA DESMOND, Plaintiff Counsel: Lisa Bishop, for the Plaintiff

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EVAN HANNA and RONETYA YOUSUF, Defendants Counsel: Keith Smockum, for the Defendants

Heard: May 15, 2023

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Between: SHIAN HENRY, Plaintiff Counsel: Lisa Bishop, for the Plaintiff

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EVAN HANNA and RONETYA YOUSUF, Defendants Counsel: Keith Smockum and S. Desai, for the Defendants

Heard: May 15, 2023

NOTE: Not to be Uploaded to any Public Database or Released Publicly Until the Jury has Rendered its Verdict.

Trial Ruling #2: Calling Future Care Expert Yvonne Pollard

Trimble J.

The Motion (in the Desmond v. Hanna Action)

[1] This trial is a personal injury trial arising from a motor vehicle accident. The parties estimate that the trial will take approximately 8 weeks, before a jury. We are in the 2nd week of the trial, having selected the jury and had 5 days of evidence.

[2] On 8 May, I released Trial Ruling #1 - my ruling on the Plaintiffs’ motion for leave to call more than three experts. The defence only objected to medical experts.

[3] In my ruling, I grouped Ms. Desmond’s medical experts into two groups. The first group comprised Dr. Blitzer, Dr. Kekosz, and Dr. West, all of whom diagnosed chronic pain. They reached the same diagnoses with respect to the same injuries. Therefore, their reports were duplicative of each other, and their specialties not so different as to require separate opinions from specialty.

[4] The second group of doctors comprised Dr. Wolf and Dr. Vitelli, a psychiatrist and psychologist, respectively. They took the same history, administered virtually the same tests, and reached the same diagnoses. Therefore, they were duplicative of each other, and their specialties not so different as to require separate opinions from each specialty.

[5] I ordered that Ms. Desmond could select one expert from each group. Ms. Desmond elected to call Dr. Blitzer from the first group of doctors and advised on the argument of this motion that they will call a psychiatrist, Dr. Wolf from the second group.

[6] I made a similar ruling for Ms. Henry’s experts, holding that Drs. Mailis, Westreich, and Vitelli (a physiatrist, psychiatrist and psychologist respectively), all provided psychiatric opinions about Ms. Henry’s post accident condition, which were duplicative, and because the specialties were not so different, Ms. Henry had to select one of that group of doctors.

[7] During the course of that motion, no one argued that the opinions of any one or more of the duplicative doctors’ opinions were necessary for the Future Care needs and costs reports.

[8] On 15 May, the Defence sought a ruling that Ms. Pollard cannot be called.

Positions of the Parties

[9] The Defence argued that Ms. Pollard’s reports were almost exclusively based on experts that the Plaintiffs decided not to call, following my 9 May ruling. Accordingly, there can be no factual foundation to her evidence.

[10] Ms. Desmond argued that Ms. Pollard’s reports were not based largely solely on the opinions of experts that Ms. Desmond elected not to call following my 9 May ruling. In any event, Ms. Pollard’s evidence was the only evidence on the cost of future care.

The Law

[11] Neither party referred to any law on this motion. Each approached the issue as a fact driven matter.

[12] More specifically, the parties did not argue, and my decision does not rest on the admissibility of Ms. Pollard’s reports or evidence under the 4 admissibility criteria from R. v. Mohan, [1994] 2 SCR 9, White-Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182, and R. v. Abbey, 2017 ONCA 640.

[13] Implicitly, however, the parties asked me to perform the gatekeeper function from the second step under White-Burgess, para.24; namely weighing the benefit of admitting the evidence against the prejudice of doing so (see: White Burgess, para.24), or balancing the relevance/reliability /necessity of admitting the evidence against the needless consumption of time/prejudice/confusion of doing so (see: Mohan, para. 47, per Binnie, J.).

[14] The Defence argued that given the lack of factual foundation for Ms. Pollard’s opinion, there is no necessity, relevance or reliability to it and is severe prejudice in allowing her evidence to go before the jury. Ms. Desmond argued the opposite; namely that there was an admissible factual base for Ms. Pollard’s opinion, and severe prejudice in not admitting it since Ms. Pollard’s evidence is the only evidence Ms. Desmond has on the cost of future care.

[15] Expert evidence is an exception to the hearsay rule. Expert opinion is accepted where the subject matter is beyond the trier of fact’s experience because of its technical or scientific nature, such that the trier of fact cannot draw an inference or form a proper conclusion without the assistance of the expert. The expert is not required to have firsthand knowledge of the facts that form the basis of the opinion, but s/he can rely on the facts or opinions of others. In other words, the expert provides a ready-made inference for the jury based on his/her own measurements, investigation, or observations, and/or information the expert receives from others. Either way, the party calling the expert must prove the facts underlying the opinion (see: Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 6th ed. (Toronto: LexisNexis, 2002), ¶12.40, pg 896).

[16] In R. v. K. (A.) (1999), 45 O.R. (3d) 641 (CA), the majority said that even if the evidence that the expert will give is relevant, the Court must be alive to the danger that a jury may misuse expert evidence or that it will distort the fact-finding process, especially where a witness of impressive qualifications expresses an opinion in scientific language which the jury does not easily understand. The jury may see the expert as infallible and give the evidence more weight than it deserves.

[17] With this risk, the court must ask whether the evidence is sufficiently probative to warrant its admission. The balancing between the probative value and the prejudicial effect of the evidence will depend, in part, on the extent to which the facts upon which the opinion is based, are proven (see: K(A) at para. 78 through 81). Put another way, the reliability of the opinion depends on the facts underlying the opinion being proved, the extent that the evidence supports the inferences sought to be made from the opinion, and the importance of the matter that it tends to prove (see: Sopinka & Lederman, ¶12.155).

Analysis

[18] The central question before me is whether, as a preliminary matter and based solely on Ms. Pollard’s reports, there is sufficient evidentiary foundation for her opinions such that their probative value outweighs their prejudicial effect. This assumes, of course, that Ms. Pollard’s evidence meets the four Mohan criteria for admissibility, a question which is not before me on this motion.

[19] Ms. Pollard’s first future care needs and costs report dated 19 July 2018 is a paper review. She relied heavily on the reports of Dr. Kekosz, West, and Vitelli, whom Ms. Desmond has elected not to call in light of my 9 May ruling. Ms. Pollard also relied on other healthcare providers who do not fall within the scope of my 9 May ruling such as O. T. Berry, psychiatrist Dr. Doyle, kinesiologist Ms. Stevens, psychologist Dr. Karp, orthopedic surgeon Dr. Alvi, G.P. Dr. Mula, physiotherapist Patel, and defence orthopedic surgeon Dr. Zabieliauskas. Ms. Pollard relies most heavily on Dr. Kekosz.

[20] Ms. Pollard’s addendum future care needs and costs report dated 9 October 2020, too, was a paper review. Ms. Pollard provided a revised future care needs assessment based on new information she received, namely: the 14 November 2017 psychiatric report of Dr. Wolf, the 30 July 2020 chronic pain report of Dr. Blitzer, and a report of MRI of the cervical spine done by Dr. Safvi on 27 September 2020. In her summary of current status, she reiterated the diagnoses of Dr. Doyle and West, then reviewed the new opinions. While most of her future care needs and costing is based on doctors Blitzer and Wolf, she continued to rely on Dr. Kekosz. She also continued to rely on her recommendations in her July 2018 report, many of which were based on Dr. Kekosz, and to a lesser extent, Dr. West.

Result

[21] The Defence motion to exclude the evidence of Ms. Pollard is denied.

[22] Notwithstanding that Ms. Pollard’s reports rely heavily on experts whom Ms. Desmond has opted not to call in light of my 9 May ruling, there is evidence before the jury from Dr. Blitzer that supports some of the recommendations in the Pollard reports.

[23] Further, I have no witness list from the parties to know who will be called on behalf of Ms. Desmond. It may be that witnesses yet to be called will give evidence about the limitations that Ms. Desmond faces and her future care needs, that will provide the foundation for Ms. Pollard’s recommendations. I cannot determine, at this stage, whether that evidence will come.

[24] Notwithstanding that I have dismissed the defendant’s motion, as I have ruled orally in another context, Ms. Desmond, having made her election as to the experts she will call from among the duplicative experts, cannot introduce through Ms. Pollard the reports of those experts she elected to not call. They are hearsay. Ms. Desmond cannot “get through the back door which he cannot get to the front door”.

Trimble J.

Released: May 16, 2023