The Divisional Court recently considered a case involving an appeal from the Licence Appeal Tribunal and made certain comments related to an Expert Witness Report.
Refer to: Plante v. Economical Insurance Company, 2024 ONSC 7171
In this case the Plaintiff, Shannon Plante was injured in an automobile accident and the Defendant, Economical Insurance was under an obligation to pay accident benefits based upon injuries sustained resulting from the accident. Shannon Plante suffered from cerebral palsy and certain other conditions prior to the accident.
At the outset, payments were made, but then Economical retained Dynamic Functional Solution (DFS)s to investigate her case. They engaged an Occupational Therapist, Janelle MacKinnon to meet and review the matter. A Report was obtained, in fact, there were several Reports and as time went by those Reports were re-written in Economical’s favour, with DFS’s assistance. Because of the discrepancy, Plante’s lawyer wanted to cross-examine MacKinnon. That seems reasonable, but Economical did not call her as a witness. The LAT refused to have her testify and simply accepted her report. That was rather shocking!
Here are some comments by the Court,
related to the LAT:
“[59] What happened before VC Moore failed to accord the parties procedural fairness.
[60] It is clear from our review of the transcript of the first day of the hearing that VC Moore (the Adjudicator at LAT) had made up his mind even before he met with counsel that the hearing was going to be fundamentally different from what Adjudicator Gosio ( a previous adjudicator at LAT) had mapped out in his endorsement. While he allowed Mr Obagi (the lawyer for Plante) a few minutes to make submissions, the outcome was a foregone conclusion.related to the role of an Expert Witness:
[63] As it relates to the refusal of VC Moore to allow cross-examination of MacKinnon, it is worth repeating the basis for that refusal established in his reconsideration decision. VC Moore determined that he was satisfied that any inconsistencies in MacKinnon’s reports were cleared up by Radzio’s evidence. (Radzio was with DFS)This conclusion is remarkable as Radzio was not the person who prepared the reports at issue – the author was MacKinnon. The opinion of an expert is the opinion of the person authoring the report. It is most definitely not the opinion of an assessment company who is hired to engage the services of the expert.
[64] While it is entirely appropriate for parties to a dispute before the LAT to engage the services of an assessment company, it is entirely inappropriate for that assessment company to be involved in the substantive writing of an expert’s report. In this case MacKinnon had prepared numerous drafts of her report that addressed whether the Appellant had demonstrated a greater level of dependency because of injuries suffered in the MVA. Radzio did not author the reports that bore MacKinnon’s signature. Only MacKinnon could explain why her opinion had changed from:a) The appellant had demonstrated a greater level of dependency …to
b) The appellant demonstrated the same level of dependency.
[67] The refusal of VC Moore to allow the Appellant an opportunity to cross-examine MacKinnon was fundamentally flawed. His rationale appears to have been it all went to what weight he would put on MacKinnon’s report. The report went into evidence completely unchallenged. [68] The Appellant was entitled to rely on the Respondent’s list of witnesses as being witnesses who might be called at the hearing as part of the Respondent’s case. One of those witnesses was MacKinnon. The Respondent was entitled to file MacKinnon’s report in lieu of calling her as a witness. But what VC Moore failed to appreciate is the undisputed fact that Mr Obagi had put Mr Forget on notice that he wanted to cross-examine the Respondent’s experts. [71] The LAT is required to allow cross-examination in accordance with s. 10.1(b) of the SPPA. The hearing that took place before VC Moore, while abbreviated, was nonetheless a contested adversarial hearing that adopted many of the procedures found in a trial. In Vivekanantham v. Certas Direct Insurance Company, 2024 ONSC 6198, the Divisional Court held that where an expert did not attend for cross-examination the LAT should not have admitted the report of the expert. While factually different from the facts before this court, the refusal of VC Moore to allow cross-examination of MacKinnon, where notice had been given by Mr Obagi that he required MacKinnon to be available for cross-examination and the subsequent acceptance of her unchallenged evidence, was a denial of procedural fairness. [72] While the LAT may have its own procedural rules that allow for the most expeditious and cost-effective hearing of a dispute, those rules do not allow for an unfair process by which an expert’s opinion can become unchallenged evidence – this is doubly so where there is a prima facie inconsistency of significance exposed in the expert’s reports. [73] The particular significance of the Appellant’s right to cross-examine is revealed by the apparent weight attached by VC Moore to MacKinnon’s report. It was never disputed by the Appellant that she had a significant medical condition pre accident that had necessitated medical assistance. A significant issue at the hearing was whether the accident had resulted in the Appellant having suffered a change in her level of dependency. At paras. 52 and 60 of his reasons, VC Moore stated in relation to the Appellant’s claim for a monthly $6000 attendant care benefit: [75] An assessment company like DFS may have a role in retaining experts on behalf of a Respondent whose dispute is before the LAT. DFS may also have a role in ensuring that reports prepared by an expert are grammatically and stylistically sound. But DFS and any assessment company should perform no role in the substantive nature of an expert’s report. MacKinnon changed her opinion as it relates to whether the Appellant had a greater level of dependence after the accident. Only MacKinnon could explain why she changed her opinion. MacKinnon authored her report that went into evidence unchallenged by cross-examination. The Appellant had made it clear prior to the hearing that she wanted to cross-examine MacKinnon. The failure of VC Moore to allow that cross-examination to take place and then using the unchallenged evidence was fundamentally unfair. [76] The role of an expert in a contested hearing, whether it is before the LAT or in a trial, requires that the expert is independent and objective. Far too often so called “independent medical examinations” are nothing more than the opinion of a “hired gun”. The role of an expert is to provide the trier of fact with an independent and unbiased opinion. The evidence of an expert must be the independent opinion of the expert uninfluenced by the party who has retained the expert. [77] Where there is evidence that the report of an expert has been altered in a material way, the report cannot be said to be the independent objective opinion of that expert and thus can be of little to any use to the trier of fact. [78] This court is not blind to the ever increasing use of medical assessment companies like DFS in disputes before the LAT and in personal injury litigation in general. These companies provide ready access to experts in multiple disciplines. The experts engaged whether for one side or the other are to provide their opinions to the ultimate trier of fact uninfluenced by the party retaining them. The opinions must be independent, fair and objective. If the opinions do not reach this minimal level of scrutiny they are of no use to the trier of fact and should not become evidence. The facts of this case demonstrate that DFS failed to understand its role. [79] While the LAT is best placed to determine the procedures that will apply in any hearing, those procedures must be fair to all parties. The decision of VC Moore to unilaterally change the length of the hearing; his decision to unilaterally sever the hearings of the Appellant and her mother; and his decision to refuse the Appellant’s request to cross-examine MacKinnon were unfair to the Appellant and were not a proper exercise of the discretion afforded to an Adjudicator under either Rule 3.2 of the LAT Rules ors. 25.0.1 of the SPPA. [80] For these reasons, the appeal is granted and a new hearing before a different Adjudicator is directed. [83] Having considered the costs outlines of the parties, we are fixing costs in the amount of $69,000 all inclusive which costs are payable by the Respondent within 30 days.”COMMENT
The role of DFS in this case is much like the role of lawyer engaged by one of the parties to secure and Expert Report.
The conclusions from this case:
- The Expert is to write their own Report.
- If the Report is to be used by the Court, the Expert must testify in Court or at the least be available for cross-examination.
- The opinion of an expert is the opinion of the person authoring the report.
- It is most definitely not the opinion of an assessment company (or lawyer), that is, a third party contractor who is hired to engage the services of the expert.
- The third party may have a role in ensuring that reports prepared by an expert are grammatically and stylistically sound.
- it is entirely inappropriate for that third party to be involved in the substantive writing of an expert’s report.
- If there are changes of opinion in various drafts of the report, only the Expert can testify as to those changes.
- An Expert Report may be submitted as evidence without direct testimony.
- The Expert must be available for Cross-examination or that Report must be withdrawn from evidence, otherwise it would constitute a denial of procedural fairness.
- Court rules do not allow for an unfair process by which an expert’s opinion can become unchallenged evidence – this is doubly so where there is a prima facie inconsistency of significance exposed in the expert’s reports.
- The failure of a Court to allow that cross-examination to take place and then using the unchallenged evidence was fundamentally unfair.
- The role of an expert in a contested hearing, requires that the expert is independent and objective.
- The role of an expert is to provide the trier of fact with an independent and unbiased opinion.
- The evidence of an expert must be the independent opinion of the expert uninfluenced by the party who has retained the expert.
- Where there is evidence that the report of an expert has been altered in a material way, the report cannot be said to be the independent objective opinion of that expert and thus can be of little to any use to the trier of fact.
- The experts engaged whether for one side or the other are to provide their opinions to the ultimate trier of fact uninfluenced by the party retaining them.
- The opinions must be independent, fair and objective. If the opinions do not reach this minimal level of scrutiny they are of no use to the trier of fact and should not become evidence.
These rules as they apply to Expert Witness Reports and Opinions seem fair and reasonable.
Brian Madigan LL.B., Broker