McCague Borlack LLPLitigation Boutique, GLOBAL Litigation Law Firm

 

 

 

Articles and Publications

September 23, 2010

The Use of No-Fault Reports by a Tort Defendant:

The Case of Beasley et al. v. Barrand

James Tomlinson
James Tomlinson,
Partner

Adrian Nicolini
Adrian Nicolini,
Associate Lawyer

By James Tomlinson, Adrian Nicolini
First presented at a Transportation Law Seminar

Introduction

The case of Beasley and Scott v. Barrand,1 decided by Moore J.of the Ontario Superior Court, appears at first blush to be a bar to the use at trial by a tort defendant of expert reports commissioned by a no-fault insurer. However, rather than barring the use of such reports by tort defendants, a careful review of this case reveals that it provides guidance on the proper practice to be followed by defence counsel when they seek to do so.

Facts

The action arose from a motor vehicle accident that occurred on September 16, 2002, when the plaintiff was the operator of a motorcycle involved in a collision with a car.

Before the jury was selected, defence counsel applied for a ruling on the matter of whether certain expert medical witnesses retained by the no-fault insurer of the plaintiff could be called by a tort defendant to provide expert opinion evidence at trial.

The specific reports that the defendant sought to introduce were those of a physiatrist, a psychologist, and a neurologist, each of whom prepared reports for Kingsway, the plaintiff's no-fault insurer, in 2002 and 2003, shortly after the accident occurred. Those reports were originally commissioned pursuant to the statutory accident benefits regime contained in the Ontario Insurance Act.

The reports at issue were significant in that they concluded that the plaintiff was able to complete his normal daily activities, including housekeeping and home maintenance, and that his impairments were of moderate severity and did not pose a barrier that would substantially preclude the plaintiff from performing the essential tasks of his pre-accident employment position.

Issue

The relevant rule governing the admissibility of expert reports in civil proceedings is Rule 53.03 of the Rules of Civil Procedure. Rule 53.03 was recently amended on January 1, 2010.

The central dilemma faced by Moore J. in this matter was whether the 2002 / 2003 medical reports, which were prepared for the purposes of the plaintiff's no-fault claim, were in compliance with the recently amended Rule 53.03. That is, Moore J had to determine whether the requirements of Rule 53.03, though only introduced in 2010, applied retroactively and were applicable to no-fault commissioned medical reports written in 2002 and 2003.

Legal Test

There is a legal test that must be met in order for expert evidence to be led at trial. The legal test which Moore J. considered in order to determine whether to admit expert testimony of the three experts was whether or not the probative value of the opinion evidence proffered outweighed the prejudicial effect to the plaintiff. The defendants in this case asserted that the three medical experts held expert opinions that were highly probative.

Rule 53.03(3) provides that an expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set down in a report. Thus, in making his determination on the probative value of the expert testimony, Moore J. had to undertake an analysis of the doctor's reports themselves and determine whether those reports met the requirements mandated in Rule 53.03.

After considering various factors, Moore J. held that the expert reports were more prejudicial than probative, thereby disallowing the medical experts from testifying at trial.

This test, and the factors identified by Moore J., will be examined in greater detail once the central issue of the applicability of Rule 53.03 is adequately canvassed.

Failure to Comply with Rule 53.03

The fact that the reports were not in compliance with Rule 53.03 of the recently amended Rules of Civil Procedure, was undoubtedly the most important factor in Moore J.'s holding that the expert reports were more prejudicial than probative. The Rules of Civil Procedure were amended on January 1, 2010, in response to the findings and recommendations of the Osborne Report, which was part of the Civil Justice Reform Project.2 Among the major amendments, Rule 53 of the Rules of Civil Procedure was modified so as to mandate specific requirements to be included in an expert report.

In the opinion of Moore J., one of the important reasons for the rule change was to eliminate the practice of tendering opinion evidence of questionable value at trial; particularly where the evidence was created in another proceeding at the instance of a party (in this case Kingsway) who was not before the court to address the matter.

Under Rule 53.03, a party who intends to call an expert witness at trial shall serve on every other party to the action a report containing all of the information listed in sub rule 2.1.

The specific requirements of sub rule 2.1 are as follows:

  1. The expert's name, address and area of expertise.
  2. The expert's qualifications and employment and educational experiences in his or her area of expertise.
  3. The instructions provided to the expert in relation to the proceeding.
  4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.
  5. 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.
  6. 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 him or her to form the opinion, and
    • a list of every document, if any, relied on by the expert in forming the opinion.
  7. An acknowledgement of expert's duty (Form 53) signed by the expert.

Rule 53.03: Content of the Reports

In holding that the expert reports themselves did not comply with Rule 53.03, Moore J found a number of problems with their content. He held that the none of the three doctors stated in their reports whether they were qualified to opine, on the basis of the information and documentation available to them, that the plaintiff was physically or psychologically capable of returning to every aspect of his activities of daily living and pre-accident and employment.

Moore J further commented that the doctors did not describe on what basis the plaintiff might undertake the essential duties of his occupation. In fact, the basis for their optimism that the plaintiff would be able to meet the demands of job was simply not addressed.

Form 53: Inadequacies

In this case, the defendants made limited efforts to bring the three doctors into substantial compliance with Rule 53.03 by having the experts complete a Form 53 Acknowledgment of Expert Duty Form. Moore J. noted that the preparation of the form in question was, in and of itself, inadequate for the purposes of compliance with Rule 53.03.

Specifically Moore, J. found that it was important for these forms to be both read by the doctors in question, and explained to them by defence counsel. Moore, J. found further fault with the fact that the forms erroneously stated that the doctors had been retained by the defendants, when in fact they had been retained by the no-fault insurer to prepare their reports. In addition, the form failed to indicate that the doctors had been engaged by the defendants for the sole purpose of completing the acknowledgement form. Clearly, these were not formalities which Moore, J. deemed could be dispensed with lightly.

Additional Factors considered in determining the low Probative Value of the Reports

In considering the test of the whether an expert report is more probative than prejudicial, Moore J. assessed various factors associated with the expert reports. He found that if the reports in question were received into evidence, the plaintiff would need to undertake a laborious, time-consuming and unnecessarily complicated description, for the benefit of the jury, of the statutory accident benefits system in place in this province at the time of the accident and at the time of the assessments undertaken by the doctors. He also found that the plaintiff would have to lead evidence to explain the role and function of medical examiners retained by no-fault insurers and to contrast that with the role of doctors retained by parties in a tort action to provide fair, objective and non-partisan opinions. Moore J. found that if the plaintiff did not take such steps he would risk misleading the jury into the belief that all doctors giving evidence present their opinions from an equal footing according to the same rules, which in fact, they do not.

The question for Mr. Justice Moore was whether or not this prejudice was outweighed by the probative value of the evidence to be called. In the view of Moore J, the reports at issue were problematic in a number of respects.

First, the reports at issue were authored approximately seven years prior to Moore J.'s decision. Notwithstanding their age, the tort defendant submitted that the evidence contained in the reports, and the opinions of the doctors, which related to the capacity of the plaintiff to perform activities of daily living, and the essential tasks of the plaintiff's job, remained clearly relevant and probative of the issues between the parties at trial. However, Moore J opined that the three medical assessments were snapshots of the plaintiff's situation taken at a point more than seven years ago. Moore J held that the assessments can be of little, if any, help to the jury in assessing the plaintiff's medical and vocational progress over the past ten years.

Second, and also arising out of the age of the reports was the fact that, contrary to the opinions contained in the reports, the plaintiff did not return to work for three and one half years after the reports' completion. Even then, he had returned to work on a supervised basis and on modified duties. Furthermore, the plaintiff ultimately received income replacement benefits from Kingsway, as well as both long term disability benefits and Canada Pension Plan disability benefits. In short, there was an issue as to whether the opinions of these doctors had been rebutted by the facts on the ground and the decisions of the various benefits providers.

Third, Moore J also found it significant that these doctors were not retained by a party to the present proceeding, and that their reports were not prepared in the context of the current dispute. Moore J. further questioned the probative value of these reports on the basis that they were not formed in the course of providing primary care to the plaintiff. He further opined that none of the opinions provided were determinative of or central to the outcome of the litigation. Moore J. also found fault with the failure of the reports at issue to state the reasons or basis for their opinions.

Moore J ruled that he was “not persuaded that the interests of trial fairness could be well serviced by allowing the three experts to testify; the additional time, complexity and expense necessarily involved, when weighed against the prejudice to the plaintiff, could not be justified”.

Barring No Fault Reports in Tort Proceedings?

In his conclusion, in light of the above cited prejudice to the plaintiff and the many problems with the reports, Moore J ruled to exclude the reports at issue.

However, far from barring the inclusion of such reports in all future cases, at page 14 of his decision he wrote, “I am not to be heard to state that experts retained by accident benefits insurers cannot give opinion evidence in a tort action; rather, I say that such experts should first comply with Rule 53.03”. He thereafter provided the roadmap for compliance discussed below.

Roadmap to Using No-Fault Reports

In the face of the above referenced inadequacies, Moore J. provided a roadmap by which a tort defendant might successfully introduce the evidence contained in reports commissioned by a no fault insurer. In suggesting this route, it is significant that Moore J. left the door open for defence counsel to successfully introduce these reports in the future.

Specifically, it was suggested that in order to meet the technical requirements of Rule 53, the expert could be requested to prepare a supplementary report in compliance with the Rule. In outlining his suggestion, Moore J stated that

the defendants could invite the doctors, at the defendant's expense, to write meaningful, Rule 53.03 compliant, reports to plaintiff's counsel, which, if relevant and producible, could help me understand any opinions they might be able to express on issues between the parties before this court”.

Practically speaking, ensuring such compliance would require sending the expert a new and updated medical brief and the issuance of a supplemental report meeting each of the specific requirements of Rule 53.

However, despite this apparent roadmap, Moore J.'s proposed solution left outstanding the issue of whether such reports would still be considered the reports of a party not involved in a tort proceeding. The issue of whether or not a supplementary report would be deemed that of the tort defendant, and thus of a party to the action was not addressed by Moore J.

Regardless, even if such reports were deemed not to have been prepared for a party to the action, the relevance of such a report to the action might, depending upon the facts, be a key factor in favour of admission. Specifically, while in this case, the reports at issue were aged and flawed in several respects, if the reports at issue could be shown as directly probative and comparatively current (that is, in compliance with Rule 53.03), there would be a strong argument that such reports would be significantly more probative than prejudicial and could not be excluded.

Conclusion

In conclusion, despite appearances, the case of Beasley and Scott v. Barrand, contains an interesting and instructive lesson on the proper practice to be followed by defence counsel where they seek to use reports prepared for a no-fault insurer.


1 2010 ONSC 2095.
2 Ibid, pg. 11


 

TORONTO | OTTAWA | KITCHENER | BARRIE

Copyright McCague Borlack LLP - Legal Notice | mccagueborlack.com | Follow us on Twitter twitter

McCague Borlack LLP is a member of the Canadian Litigation Counsel, a nationwide affiliation of independent law firms. Through CLC's association with The Harmonie Group, our clients have access to legal excellence throughout North America, the U.K. and Europe.

clcnow.com | harmonie.org