Court File and Parties

Court File No.: 17-00072696 Superior Court of Justice

Between: JEANNE D'ARC CHAMOUN AND MAHROUS CHAMOUN AND GLORIA SEMAAN Plaintiffs

• and -

ETHIOPIA GEBRU AND YARED MESFIN Defendants

Proceedings

Before: THE HONOURABLE JUSTICE P. ROGER On: April 5, 2024, at OTTAWA, Ontario

Appearances: J. Obagi/A. Aldersley/C. Colangelo, Counsel for the Plaintiff A.C. Gluek/E. Scott, Counsel for the Defendant

Transcript Ordered: April 5, 2024 Transcript Completed: April 17, 2024

Ruling

FRIDAY, APRIL 5, 2024

ROGER, J. (Orally):

[1] The defendants bring a motion for leave to admit the report of Dr. Armstrong dated October 13, 2023.

[2] This action arises from a car accident of May 25, 2015. The first pretrial conference occurred on November 30, 2022. The parties did not comply with rule 53.03 and did not serve all their expert reports prior to the pretrial. The trial was originally scheduled to start on November 14, 2023, but at the last minute could not proceed for lack of judicial resources. A second pretrial conference occurred on March 18, 2024, for the new trial date of April 2, 2024.

[3] The plaintiffs' claims include a claim for past and future cost of care. In support of this the plaintiff rely on a future care needs analysis report of October 18, 2022, and a present value report of October 5, 2023. The plaintiffs' present value report assumes that the plaintiff's life expectancy is consistent with that of the average Canadian of the plaintiff's gender, or 15.7 years (the plaintiff is now 73).

[4] On October 4, 2023, the defendants sought to retain Dr. Armstrong, and his report of October 13, 2023, was served on the plaintiffs on November 1, 2023. Dr. Armstrong arrives at a life expectancy of 8.8 years.

[5] We tried to decide this issue solely on the basis of leave, but I felt that some of the leave issues that were raised by the plaintiffs were intertwined with admissibility issues and we scheduled a voir dire that I limited to 1.5 hour per party on a without prejudice basis to a further voir dire should leave be granted and counsel feel that admissibility still required further questioning of Dr. Armstrong.

[6] After hearing from Dr. Armstrong, it became apparent that his report is not admissible.

[7] Leave is provided at rule 53.08 of the Rules of Civil Procedure. As the trial could not proceed in November 2023, and was rescheduled to start on April 2, 2024, I find that the defendants have provided a reasonable explanation and have sufficiently established that leave would not cause prejudice to the plaintiffs that could not be compensated by costs or by an adjournment. Here, the parties were both late in filing their reports and the report of Dr. Armstrong is part of how the defendants chose to respond to the plaintiffs' late delivered present value report of October 5, 2023.

[8] Once the November 14, 2023, trial date was cancelled, the plaintiffs had about five months to respond to the report of Dr. Armstrong. As a result, they were not prejudiced by the late delivery of his report. The plaintiffs' arguments are really more focused on issues of admissibility.

[9] With regards to admissibility, I find that:

1. The report of Dr. Armstrong is not compliant with rule 53.03(2.1)6;
2. The probative value of Dr. Armstrong's report is very low to nonexistent such that the prejudice of its admission would be extremely high; and
3. Dr. Armstrong is not qualified to arrive at the diagnosis outlined in his report.

[10] Dr. Armstrong’s report is not compliant with rule 53.03(2.1)6 because it fails to provide a methodology and it fails to list every document that Dr. Armstrong relied upon. Dr. Armstrong arrives at conclusions without explaining how he arrived at these conclusions. When examined during the voir dire, Dr. Armstrong explained that his conclusions are based on his experience. He explained as well that his experience relies upon countless articles and papers that he reviewed over the years but that he did not list in his report and that he could not particularize. An expert cannot merely state a conclusion: see Marchand v. The Public General Hospital Society of Chatham, (2000) 51 OR(397) at paragraph 38.

[11] An expert must set out the methodology that was used to arrive at his or her conclusions: see Hearn v. Maslak-McLeod Gallery Inc., (2018) ONSC 945, and as well the decision of Moffit v. TD Canada Trust, (2021) ONSC 6133. Although Dr. Armstrong does set out some information in his report, he does not set out his methodology and documentation relied upon.

[12] Dr. Armstrong's report has very little probative value. Dr. Armstrong adopted a life insurance approach to his analysis despite admitting that the situation applicable is more analogous to the purchase of an annuity. Dr. Armstrong has no experience with annuities and admitted that an annuity would have used 90 percent mortality instead of the 50 percent mortality that he used and did not explain in his report. Indeed, his report does not explain that his conclusions are based on 50 percent of the population, let alone that this is the wrong percentage for an annuity. As well, Dr. Armstrong used Statistics Canada information which incorporates the general population. As a result, his analysis double counts to some unknown extent factors such as obesity, smoking, and other health concerns already reflected in numbers incorporating the general population, yet Dr. Armstrong made no attempt to explain this in his report.

[13] Finally, Dr. Armstrong has not been a member of the College of Physician and Surgeon since 2010. As a result, Dr. Armstrong could not assess the medical condition of the plaintiff which he did as outlined in the body of his report. Even during his re-examination, Dr. Armstrong could not agree that he did not diagnose the plaintiff.

[14] Consequently, his report is not admissible. I make the same disposition re costs, that the costs of this motion, unless submissions wish to be made, shall be payable to the plaintiff irrespective of the outcome of this trial.

Electronic Certificate of Transcript

FORM 3 ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act

I, Jennifer Baird-Norman, certify that this document is a true and accurate transcript of the recording of CHAMOUN ET AL V. GEBRU ET AL in the Superior Court of Justice held at 151 Elgin Street, Ottawa, Ontario, taken from Recording No. 0411_CR32_20240405_095748 10_ROGERP.dcr, which has been certified in Form 1.

April 17, 2024 (Date) (Electronic Signature of Authorized Person) _2869957139 (Authorized Court Transcriptionist's Identification Number) Ontario, Canada. (Province of Signing)

*This certification does not apply to the Ruling which was judicially edited.

A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.