Court File and Parties

COURT FILE NO.: CV-14-120967 DATE: 20231023 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

CHANGRUN LU Plaintiff – and – DR. PETER KALMAN, THE ESTATE OF DR. ALEKSANDAR GEORGIEVSKI by his Estate Trustee Susan Brackenbury, DR. RAM K. SINGAL and DR. INDIRA SEN Defendants

COUNSEL: CHANGRUN LU, Self-Represented Leah Ostler and Akiva Stern, for the Defendants

HEARD: September 28-29, 2023

RULING RE: PLAINTIFF’S MOTION TO STRIKE THE EVIDENCE OF DR. JOHN BOHNEN

MCKLEVEY J.:

Introduction

[1] These Reasons set out my decision on a motion by the plaintiff for an Order prohibiting Dr. John Bohnen from giving evidence on behalf of the defence as an expert at this trial.

[2] This action arises out of two hernia procedures performed by Dr. Kalman at the Shouldice Hospital. The plaintiff alleges that he was not adequately informed of the risks, benefits and alternative treatments available. He also alleges negligence in the care he received from the defendants in the action.

[3] Dr. Bohnen is an expert who was retained by the law firm of McCarthy Tétrault LLP to comment on the care received by the plaintiff at the Shouldice Hospital.

[4] As noted by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, the legal test for admissibility for expert evidence has two components.

[5] In the first stage, as articulated by the Supreme Court in R. v. Mohan, [1994] 2 SCR 9, the proponent of the evidence must persuade the trial judge that the proposed expert opinion is:

i. Relevant; ii. Necessary; iii. Not barred by any other exclusionary rule; and iv. Given by a proper qualified expert.

[6] In the second stage the trial judge must engage in a gate keeping function in which the trial judge balances the potential risks and benefits of admitting the evidence to determine whether the potential benefits justify the risk (White Burgess, at para. 24).

[7] In the present case, there is no issue about the fact that the opinion of Dr. Bohnen is relevant to the allegations against the defendant physicians. There also does not appear to be an issue about necessity. Dr. Bohnen’s proposed evidence deals with the standard of care of a physician performing a hernia operation which is beyond the expertise of a lay person. Nor does there appear to be any issue with any other exclusionary rule. The issues raised by the plaintiff deal with Dr. Bohnen’s qualifications as an expert. The plaintiff does not take issue with Dr. Bohnen’s clinical qualifications. He does, however, argue that the following issues should disqualify Dr. Bohnen from being permitted to give expert opinion in this action:

1. Dr. Bohnen prepared three reports for the litigation. These reports are dated August 29, 2018, December 14, 2021, and September 18, 2023. With respect to his report of August 29, 2018, Dr. Bohnen has not signed the report, although he did sign a From 53 acknowledging his responsibility as an expert to the court.
2. With respect to Dr. Bohnen’s second report, the plaintiff states that Dr. Bohnen’s office address and phone number as set out in the report are not valid.
3. With respect to Dr. Bohnen’s third report, the plaintiff asserts that Dr. Bohnen gave a fake address and that there was no telephone number referenced on this report.
4. The plaintiff takes issue with respect to the relationship between Dr. Bohnen and Dr. Kalman. He asserts that they were friends and/or are acquaintances.
5. The plaintiff takes issue with the relationship between Dr. Bohnen and McCarthy Tétrault LLP.

[8] Dr. Bohnen was challenged on each of the above noted issues in the Voir Dire which took place in advance of my Ruling as to whether he should be entitled to give expert opinion evidence at this trial.

Should Dr. Bohnen be prohibited from giving evidence because he initially failed to sign his first report of August 29, 2018?

[9] The plaintiff in his argument referred to Rule 53.03(1) of the Rules of Civil Procedure which provides as follows:

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). [Emphasis added.]

[10] The plaintiff argues that as Dr. Bohnen did not sign the first report until the issue was brought to his attention at trial, he should be prohibited from giving any of the opinion evidence as set out in that report. His argument is that the report is not a valid report if it is not signed.

[11] The issue which arises is whether there is any basis to allow testimony into evidence from an unsigned report which does not comply with Rule 53.03 of the Rules of Civil Procedure. I note initially that under Rule 53.03(4) of the Rules of Civil Procedure that the time provided for service of a report may be extended or abridged by the court, on motion. As Dr. Bohnen’s report has now been signed, there is an issue as to whether this Court should allow late service of Dr. Bohnen’s signed report.

[12] In addition, in a decision from the Ontario Physicians and Surgeons Discipline Tribunal in College of Physicians and Surgeons of Ontario v. Khan, 2022 ONPSDT 5, the tribunal had to deal with a similar issue where the proposed expert did not sign an acknowledgment of duty as an expert form. In deciding that it was appropriate to allow the expert to testify and give opinion evidence, the tribunal stated,

In failing to sign an Acknowledgement of Duty form and failing to include a statement of acknowledgement of duty in his report, Dr. Younus technically breached Rule 12. However, we did not find the breach to be sufficiently egregious that it should disqualify Dr. Younus from testifying. Further, based on his testimony, we were satisfied that Dr. Younus understood his responsibilities and duty when he reviewed Dr. Khan’s care for the purposes of his 2018 report.

[13] A similar situation which specifically dealt with the provisions of Rule 53 of the Rules of Civil Procedure was considered by the Ontario Court of Appeal in Rosehaven Homes Limited v. Aluko, 2022 ONCA 817. In that case the expert had failed to sign a form 53 acknowledgment of an expert’s duty. In the Rosehaven decision the appellant’s had the opportunity to object to the admissibility of the report at trial and failed to do so. In the appeal decision the court stated,

However, we are not persuaded that any failure to comply was material.

[14] The test which the Court appears to be applying is that a failure to comply with Rule 53.03 of the Rules of Civil Procedure will not lead to a disqualification of the expert unless the failure to comply is “material”.

[15] In the present case I have concluded that Dr. Bohnen’s failure to initially sign his report of August 29, 2018 is not material.

[16] Dr. Bohnen gave evidence on the Voir Dire that his failure to sign the report was an oversight on his part and that he wrote the report himself and adopted the contents of the report. In these circumstances, I have concluded that his failure to initially sign the report is not a material omission by him.

[17] In my opinion, the underlying rationale for the requirement to have an expert sign his or her report is to properly authenticate the report. Dr. Bohnen’s evidence satisfies me that the report has been properly authenticated and that the opinions contained in the report are Dr. Bohnen’s independent opinions in this case.

[18] Further, there would not appear to be any prejudice to the plaintiff in allowing Dr. Bohnen to testify. The report of Dr. Bohnen was delivered otherwise in accordance with the rules. Apart from adding his signature to the report there are no other changes. Dr. Bohnen’s opinions, therefore, cannot come as a surprise to the plaintiff. On the other hand, the defendants would be put at a serious disadvantage if they were not able to call Dr. Bohnen as a witness.

[19] The plaintiff has been aware of Dr. Bohnen’s opinions for a lengthy period of time. If necessary I would exercise my discretion under Rule 53.03(4) of the Rules of Civil Procedure to allow for late service of Dr. Bohnen’s signed report.

Did Dr. Bohnen in his second report, provide invalid information regarding his office address and phone number?

[20] In Dr. Bohnen’s second report of December 14, 2021, he lists his address as

Division of General Surgery, St. Michael’s Hospital 55 Queen Street East, Suite 402 Toronto, Ontario, M5C 1R6

He further lists his telephone number as 416-864-3047.

[21] In his evidence, Dr. Bohnen testified that he stopped doing major surgery in 2018 but worked as an assistant until 2022 when he retired. He gave up his license to practice in June, 2022. The plaintiff cross-examined Dr. Bohnen as to whether he still had an office at St. Michael’s Hospital in Suite 402 and whether his telephone number was as described in the report. Dr. Bohnen explained that he continues to have an office in Suite 402 which comprises several different offices in the Suite. In addition, the phone number referenced was his phone number but contained a recording advising callers that the phone was not monitored as Dr. Bohnen was only doing surgical assists after January, 2019. He used this phone to make calls when he was in his office.

[22] Under Rule 53.03(2.1) of the Rules of Civil Procedure an expert report is required to include the following information: the expert’s name, address and area of expertise. There is no requirement for an expert to disclose their telephone number. In any event I am satisfied that the telephone number given by Dr. Bohnen was the one he routinely used when he was in the office. Similarly, I am satisfied by Dr. Bohnen’s uncontradicted evidence that he did indeed have an office located in Suite 402 at 55 Queen Street East. There is no basis to disqualify Dr. Bohnen as an expert on this basis.

Did Dr. Bohnen use a fake address in his third report dated September 18, 2023 and is there an issue with respect to the fact that no telephone number is listed on this report?

[23] As noted previously, there is no requirement under the rules for an expert to disclose his or her telephone number. The address used on the third report is the same address used on the other two reports, although by this time Dr. Bohnen had given up his licence to practice medicine. Dr. Bohnen testified that he still attends at that office at St. Michael’s Hospital to pick up his mail because he still works as a consultant to firms like McCarthy Tétrault LLP. I am satisfied that the address given by Dr. Bohnen on his expert report is not a “fake” address and that this office is used for purposes of his medical legal practice.

Is the relationship between Dr. Bohnen and Dr. Kalman such that he should be disqualified from giving evidence as an expert?

[24] In his evidence at the Voir Dire, Dr. Bohnen acknowledged that he and Dr. Kalman were both residents together at Toronto General Hospital. He recalled working with him briefly at the hospital. He might also have attended some of the same lectures and it is also conceivable that they were both at social gatherings together as residents. All of this took place approximately 40 years ago. He has not seen Dr. Kalman since they were both residents in the 1970’s until he saw him in the courtroom as Dr. Kalman was giving his evidence at this trial. He has not socialized with Dr. Kalman and did not consider him to be a friend or acquaintance other than as described above.

[25] In dealing with the threshold requirement for an expert, the Supreme Court in the White Burgess decision notes that the threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert’s evidence will be ruled inadmissible for failing to meet it.

[26] At para. 49 of their decision, the Court states,

In most cases, a mere employment relationship with the party calling the evidence will be insufficient to do so. On the other hand, a direct financial interest in the outcome of the litigation will be of more concern. The same can be said in the case of a very close familial relationship with one of the parties or situations in which the proposed expert will probably incur professional liability if his or her opinion is not accepted by the court. Similarly, an expert who, in his or her proposed evidence or otherwise, assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court.

[27] No evidence has been adduced by the plaintiff that Dr. Bohnen has had any relationship with Dr. Kalman since they were both residents 40 years ago. I have therefore concluded that there is no basis to disqualify Dr. Bohnen from giving expert evidence on this basis.

The relationship between Dr. Bohnen and the defence firm of McCarthy Tétrault LLP

[28] In the plaintiff’s cross-examination of Dr. Bohnen, he questioned the doctor about his relationship with the defence firm who hired him. Dr. Bohnen gave evidence that he has acted as an expert for both plaintiff and defence. He estimated that about a third of the time he works for the defence. The other two thirds of his time is divided between plaintiff’s and third parties such as hospitals. His work for the defence doctors is divided between several firms. He estimated that his best estimate is that he has acted as a consultant in about 100 cases for the defence of doctors. He further estimated that he probably has been retained by McCarthy Tétrault LLP more than 10 times, but less than 50. He charges the CMPA rate for his work on those files. He also pointed out that his opinions for McCarthy Tétrault LLP were not always supportive of the care by the defendants in the action. He was still compensated for unfavourable reports he prepared.

[29] The fact that an expert is paid for his services should not disqualify the expert from giving evidence at trial. This is a normal practice when experts are retained. As noted at para. 32 of the White Burgess decision, experts are generally retained, instructed and paid by one of the adversaries. These facts alone do not undermine the expert’s independence, impartiality and freedom from bias.

[30] In my opinion, the fact that Dr. Bohnen has been retained by McCarthy Tétrault LLP up to 50 times should also not disqualify him as an expert unless it is established that his opinion is not independent, impartial and objective. As noted in the White Burgess case at para. 36, for expert testimony to be inadmissible, more than a simple appearance of bias is necessary. The question is not whether a reasonable person would consider that the expert is not independent. Rather, what must be determined is whether the expert’s lack of independence renders him or her incapable of giving an impartial opinion in the specific circumstances of the case.

[31] In the present situation I am not satisfied that Dr. Bohnen’s prior retention by McCarthy Tétrault LLP has rendered him incapable of giving an impartial opinion in the specific circumstances. In this regard, I note that some of his opinions could be interpreted as being supportive of the plaintiff’s position. In Dr. Bohnen’s report of December 14, 2021, for example, he states,

If it is true that Dr. Kalman did not see Mr. Lu at any point pre-operatively, I would agree that Dr. Kalman did not meet the standard of care in that respect.

[32] Dr. Bohnen has signed a Form 53 in which he acknowledges his duty to provide opinion evidence that is fair, objective and non-partisan. I have no evidence before me at the present time to suggest that Dr. Bohnen will not honour that pledge. Of course, if such evidence does come to light at a later time, I reserve the right to re-visit my decision to admit his testimony into evidence.

Conclusion

[33] For the above reasons, I have concluded that Dr. Bohnen should be entitled to testify regarding his expert opinions in this case. The issues raised by the plaintiff should not disqualify him, but rather are legitimately issues which can be taken into account in determining the weight which should be given to his opinions.

Justice M. McKelvey Released: October 23, 2023