COURT FILE NO.: CV-11-4963-00; CV-11-3609-00

DATE: 2023 01 26

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

EROL OZDEMIR

PLAINTIFF

– and –

ECONOMICAL MUTUAL INSURANCE GROUP

DEFENDANT

AND BETWEEN:

EROL OZDEMIR

PLAINTIFF

-and-

ADEBOLA MAKINDIPE and ADE MAKINDIPE

DEFENDANTS

Self-Represented

Tripta Sood and Katrina Bekkers, Lawyers for the defendants

Self-Represented

Neil Searles, Lawyer for the defendant

HEARD: January 24, 2023

ENDORSEMENT

Ranjan K. AGARWAL J.

I. Introduction

[1] In November 2009, the plaintiff Erol Ozdemir was allegedly injured in a car crash. He sued, in two separate actions: (a) the owner and driver of the other car (the defendants Adebola Makindipe and Ade Makindipe) for negligence; and (b) his insurer (the defendant Economical Mutual Insurance Group) for failing to provide him accident benefits under the Statutory Accident Benefits Schedule, O Reg 34.10. In October 2015, the court ordered that the trials of these action should be heard at the same time.

[2] The trials began on January 23, 2023. Though Ozdemir was represented by lawyers at various stages of these proceedings, he represented himself at the trials. In Ozdemir’s evidence in chief, he sought to put into evidence a document entitled “Catastrophic Determination Executive Summary”, dated March 17, 2014, which was written by Dr. Mohamed Khaled. The purpose of this document is to “provide an opinion as to the nature of the injuries sustained in the motor vehicle accident (MVA) of November 24, 2009” regarding Ozdemir.

[3] Ozdemir sought to rely on this report to support his claim that he was catastrophically impaired from the accident. Ozdemir wanted to rely on the words of Dr. Khaled’s opinion as being true. The defendants objected to the admission of this report. They argued that Ozdemir wants to use Dr. Khaled’s statement for the truth of its contents without presenting Dr. Khaled for cross-examination, making it inadmissible hearsay evidence. Following a mid-trial hearing on the admissibility of the report, I endorsed an order that it was inadmissible. These are my reasons.

II. Factual Background

[4] In July 2021, Ozdemir served an “Exhibit Book”, containing Dr. Khaled’s report. In November 2022, the defendants notified Ozdemir that they objected to him filing this report unless he called Dr. Khaled to testify at trial (the defendants explained that the delay was because there were two pre-trial conferences in the interim). In December 2022, Ozdemir, who, at that time was being represented under a limited scope retainer by James Cooper, a lawyer, served a brief entitled “Factum” that enclosed the report. The defendants notified Ozdemir and Mr. Cooper that they objected to the filing of this brief because the information in the brief is inadmissible.

[5] The defendants say that Ozdemir didn’t serve a formal notice of intent under the Evidence Act, RSO 1990, c E.23. Ozdemir has made clear, both at trial, at the trial management conference immediately before the trial, and at various pretrial conferences, that he doesn’t intend to call Dr. Khaled as a witness at trial.

III. The Parties’ Positions

[6] The defendants argued that there are three reasons why this report shouldn’t be admitted into evidence. First, Ozdemir didn’t comply with section 52 of the Evidence Act in that he didn’t serve a notice of intent. Second, Dr. Khaled hasn’t been, and won’t be, presented for cross-examination. Third, Dr. Khaled’s report doesn’t comply with rule 53.03 of the Rules of Civil Procedure, which requires an expert’s report to contain certain specified information. They also argued that an adjournment, so Ozdemir can summons Dr. Khaled mid-trial, would be improper (relying on Mujagic v Kamps, 2014 ONSC 5504 (Div Ct), at para 18).

[7] Ozdemir argued that trial fairness warrants admitting the report. He is self-represented. The accident underlying this proceeding allegedly caused him psychological distress and pain. He said that he can’t, because of his condition, organize himself to present Dr. Khaled for cross-examination. He argued that this lawsuit is about showing how injured he is, which he can’t do without this report, putting him in an impossible position. Ozdemir didn’t ask for an adjournment of the trial.

IV. Analysis

[8] Hearsay evidence is presumptively inadmissible because—in the absence of the opportunity to cross-examine the declarant at the time the statement is made—it is often difficult for the trier of fact to assess its truth. See Girao v Cunningham, 2020 ONCA 260, at para 42.

[9] There are certain exceptions to the hearsay rule under which a statement may be adduced for its truth value. Section 52 of the Evidence Act is one such exception. It permits the court to allow medical reports to be admitted into evidence without the need to call the practitioner. The opinion can then be accepted for the truth of its contents. That said, the trial judge must, at the request of a party, oblige the medical practitioner to testify in order to permit cross-examination. Section 52 was designed as an alternative to oral testimony. See Girao, at paras 45, 47.

[10] In Pintea v Johns, 2017 SCC 23, the Supreme Court endorsed the Statement of Principles on Self-represented Litigants and Accused Persons (2006), issued by the Canadian Judicial Council. The Principles provides guidance to the judiciary on how to ensure litigants “understand and meaningfully present their case, regardless of representation”. I must do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons. I have a special duty to Ozdemir, in terms of acquainting him with courtroom procedure and the rules of evidence. See Girao, at paras 149-151.

[11] At the same time, the defendants are entitled to expect that a claim of liability brought against them will be decided by the same rules of evidence and substantive law whether the plaintiff is represented by a lawyer or self-represented. In order to preserve fairness in a trial, I must, of course, respect the rights of the defendants. As a self-represented litigant, Ozdemir, under the Principles and our courts’ precedents, is expected to learn about the relevant legal practices and procedures pertaining to his case. See Girao, at para 151; Sanzone v Schechter, 2016 ONCA 566, at para 22; Cicciarella v Cicciarella, 2009 34988 (Div Ct), at paras 37-38.

V. Disposition

[12] I am sympathetic to Ozdemir’s arguments. The law of evidence is difficult even for lawyers, never mind self-represented litigants facing the types of personal challenges described by Ozdemir. The report is, in his view, critical to the success of his case.

[13] But I’m bound by our court’s precedents. Once the defendants objected, I’m required to refuse to admit Dr. Khaled’s report for the truth of its contents unless he is presented for cross-examination by Ozdemir. He’s not being presented for cross-examination. On this basis, the hearsay content of Dr. Khaled’s opinion is not admissible for any purpose. The Principles, and my accompanying obligations to Ozdemir as a self-represented litigant, don’t and can’t override the law of evidence.

[14] As a result, I endorse an order that the Catastrophic Determination Executive Summary, dated March 17, 2014, written by Dr. Khaled, is inadmissible.

[15] Given my disposition, I need not decide whether the failure to serve a notice of intent or the failure to comply with rule 53.03 are also grounds to deny the admissibility of the report.

VI. Best Practices for Self-Represented Litigants

[16] To the extent other self-represented litigants read this decision for information about the law and evidentiary requirements, I make these observations:

• if a party wants to rely on a medical report from a health professional without calling the practitioner as a witness, they must notify the other side at least 10 days before the hearing or trial (Evidence Act, s 52(2))

• there is no prescribed form—it may be sufficient to notify the other side, by email or letter, that “the plaintiff intends to rely upon the reports of the following practitioners pursuant to section 52 of the Evidence Act” and list the report and the report’s author

• the other side is entitled to a copy of the report—if the report is not served, the practitioner may not be allowed to testify at trial (Evidence Act, s 52(3))

• the other side can require the party relying on the report to summons the witness at trial (see rule 53.04(1) of the Rules of Civil Procedure and Form 53A for the rule on compelling attendance at trial)

[17] In addition, I don’t believe a practitioner obliged to be presented at trial under section 52 of the Evidence Act must also, always, comply with rule 53.03 of the Rules of Civil Procedure. On one hand, rule 53.03 is intended to ensure consistency in the standard content of expert reports.

[18] On the other hand, our courts have held that rule 53.03 doesn’t apply to all opinion evidence. For example, rule 53.03 doesn’t apply to the opinion evidence of a participant expert or 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. See Westerhof v Gee Estate, 2015 ONCA 206, at paras 61-62.

[19] In that case, the Court of Appeal held that a physiotherapist and kinesiologist who conducted a functional abilities assessment for the plaintiff and prepared a report for his SABs insurer could testify as non-party experts on the history they took, the tests they performed, and the results they observed, including their observations about whether the plaintiff was experiencing pain, without complying with rule 53.03. Also, for self-represented litigants, I note that the Principles state that self-represented persons “should not be denied relief on the basis of a minor or easily rectified deficiency in their case”.

[20] In any event, as a best practice, self-represented litigants should try to ensure that any report they are relying on includes:

• the expert’s name, address and area of expertise;

• the expert’s qualifications and employment and educational experiences in their area of expertise;

• the instructions provided to the expert in relation to the proceeding;

• the nature of the opinion being sought and each issue in the proceeding to which the opinion relates;

• the expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range;

• the expert’s reasons for his or her opinion, including, a description of the factual assumptions on which the opinion is based; a description of any research conducted by the expert that led them to form the opinion; and a list of every document, if any, relied on by the expert in forming the opinion; and

• an acknowledgement of expert’s duty (Form 53) signed by the expert.

[21] Several online resources may assist self-represented litigants in understanding and applying the rules of court and the law of evidence:

• The CJC has published an informational handbook for self-represented litigants involved in civil, criminal, and family litigation procedures.

• Pro Bono Law Ontario is a charitable organization that promotes access to justice in Ontario by creating and facilitating opportunities for lawyers to provide pro bono (free) legal services to low-income people and charitable organizations. The organization’s primary focus is to help low-income people with civil (non-family) legal problems that aren’t covered by Legal Aid Ontario. Pro Bono offers a free legal advice hotline for up to 30 minutes of legal advice and assistance. The toll-free number is 1-855-255-7256.

• The National Self-Represented Litigants Project regularly publishes resources designed specifically for SRLs.

[22] I am grateful for the defendants’ lawyers’ assistance, Ozdemir’s respect for the court process and officials, and Omer Faik Boran’s willingness to serve as the plaintiff’s “McKenzie Friend”.

Agarwal J.

Released: January 26, 2023

COURT FILE NO.: CV-11-4963-00; CV-11-3609-00

DATE: 2023 01 24

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

EROL OZDEMIR

PLAINTIFF

– and –

ECONOMICAL MUTUAL INSURANCE GROUP

DEFENDANTS

AND BETWEEN:

EROL OZDEMIR

PLAINTIFF

-and-

ADEBOLA MAKINDIPE and ADE MAKINDIPE

DEFENDANTS

ENDORSEMENT

Agarwal J.

Released: January 26, 2023