- IV. Practice Issues
- November 22, 2017
B. The trial judge was held to have erred in allowing an expert witness, who the judge had reservations about, to testify when said expert was clearly not independent. Judges have a role as gatekeeper to ensure expert witnesses are worthy of being experts by demonstrating independence and an ability to provide evidence that is fair, objective and non-partisan.
Bruff-Murphy v Gunawardena, 2017 ONCA 502, per Lauwers, Hourigan and Benotto, JJ.A. 
I. FACTS AND ISSUES
The Appellant (Plaintiff) was rear ended by the Respondent (Defendant) and alleged that she suffered multiple soft tissue injuries to her neck, lower back and right shoulder. The Appellant also alleged that the accident left her with a chronic pain condition, anxiety, and depression. Liability was admitted by the Respondent.
At trial, the Appellant called a number of physicians who had either treated or examined her, two of whom were retained by the insurers to conduct independent medical examinations. The consensus among these witnesses was that she had suffered in the manner she complained of, and that the cause of her suffering was the MVA.
The defense called two witnesses, both of them medical expert witnesses who had been retained by the defense to conduct IME’s. The first was an orthopedic specialist who testified that there was nothing wrong with the Appellant from a musculoskeletal point of view. The second witness was a psychiatrist, Dr. Monte Bail. Counsel for the Appellant objected to Dr. Bail testifying on the grounds that his report was essentially an attack on the Appellant and that he was biased. Appellant’s counsel argued in favor of being able to cross-examine Dr. Bail on findings made in other cases where he was not an independent witness, but this was denied by the trial judge.
“It became apparent to the trial judge during the expert’s testimony that he crossed the line from an objective witness to an advocate for the defence” but “[d]espite his concerns, the trial judge did nothing to exclude the opinion evidence or alert the jury about the problems with the expert’s testimony” (¶3). The trial judge allowed Dr. Bail to testify but that Dr. Bail could not testify on certain sections of his report and was not to testify as to the Appellant’s credibility.
Dr. Bail gave evidence that his practice was not to review a subject’s medical records before meeting with them, but rather to review their medical records to look for discrepancies after meeting with the subject.
In summary, Dr. Bail testified that he felt the Plaintiff did not develop any psychiatric disorders or limitations as a result of the accident and required no medication as a result of the accident. He opined that her pre-accident profile was not exacerbated by the accident and that she did not require housekeeping or attendant care as a result of any psychiatric condition.
Dr. Bail was the last witness to testify and after closing submissions, the judge gave his charge to the jury. The judge did not instruct the jury regarding the duty of expert witnesses or raise any concerns with respect to the substance of Dr. Bail’s testimony or his independence.
There was a threshold motion brought by the defense and the Court held that the threshold had been met. The jury assessed general damages at $23,500 and rejected all other heads of damages including special damages, future care costs and past and future income loss.
The issues on the Plaintiff’s appeal were:
1. Did the trial judge err in not permitting Plaintiff’s counsel to cross-examine Dr. Bail on prior court and arbitral findings against him?
2. Did the trial judge err in qualifying Dr. Bail as an expert and/or in not intervening or taking steps to exclude Dr. Bail’s testimony?
II. HELD: For the appellant; appeal allowed and new trial ordered.
1. The trial judge was upheld in refusing to allow the Plaintiff’s counsel to cross-examine Dr. Bail about comments made about Dr. Bail in prior proceedings. It was held that prior comments made about an expert do not amount to a finding of discreditable conduct. They are simply the opinions of a judge and arbitrators regarding Dr. Bail’s testimony in other cases. The comments would be of no assistance to the jury without an understanding of their factual foundation.
2. The trial judge was found to have erred in permitting Dr. Bail to testify and in failing to exclude in whole or in part Dr. Bail’s testimony. It was held that the basic structure relating to the admissibility of expert evidence has two main components:
a. The first component requires the court to consider the four traditional “threshold” requirements for the admissibility of evidence established in R v Mohan,  2 SCR 9:
ii. Necessity in assisting the tier of fact.
iii. Absence of an exclusionary rule.
iv. Need for the expert to be properly qualified.
b. The second component is the “discretionary gatekeeping” function of the court, which requires the judge to balance the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. Expert witnesses are required to be independent and their function is to provide the trier of fact with expert opinion evidence that is fair, objective and non-partisan. It is the judge’s role to evaluate the expert and ensure that his/her evidence is meeting this standard.
i. The analysis under this component is best thought of as a specific application of the court’s general residual discretion to exclude evidence whose prejudicial effect exceeds its probative value.
ii. In this situation, the potential risk of admitting Dr. Bail’s evidence far outweighed the potential benefit of the testimony. It was evident from a review of Dr. Bail’s report that there was a high probability that he would prove to be a troublesome witness. He was intent on advocating for the defence and unwilling to properly fulfill his duties to the court. Dr. Bail was not bringing to bear any medical evidence and thus the benefit of his evidence was very low.
iii. Dr. Bail’s methodology was held to have raised a major red flag; it was unfair for Dr. Bail to search for discrepancies between a short interview and several years of medical records and this unfairness was exacerbated by Dr. Bail not giving the Plaintiff an opportunity to explain the discrepancies.
iv. There were also issues in relation to Dr. Bail’s impartiality, as he set up tests for the Plaintiff that the court found were “deliberately interpreted to fit a theory of mendacity” and Dr. Bail showed the court that he was looking to assess the Plaintiff’s credibility rather than just the medical evidence.
3. With the finding under the second issue, the Court of Appeal found it unnecessary to consider the Browne v Dunn argument.