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Calling IME Doctors to Tort Trial

View all articles written by Jack Fireman

Wednesday, January 4th, 2012

Article by Jack Fireman & Adam Somogyi

The Independent Medical Examiner (“IME”) is typically a doctor retained by an insurance company to evaluate a patient for the purpose of that patient’s accident benefits claim. An issue that arises frequently arises in my practice, as plaintiff’s counsel in motor vehicle accident litigations, is the calling of Independent Medical Examiners to give evidence at the tort trial. This paper will discuss issues relating to offering the IME doctor’s evidence at tort trial and evaluate whether the IME doctor’s evidence ought to be admitted at trial, despite him/her not having been retained by any party to the tort action. Practical recommendations will also be offered.

Amendments to the Rules of Civil Procedure

January 1, 2010 brought the most extensive amendments to the Rules of Civil Procedure[1] since they were first adopted in 1985. A focus of these amendments, concerns the admissibility of expert opinion evidence. Indeed, the amendments provide for additional requirements upon expert witnesses and the parties that wish to tender an expert’s opinion as evidence. This is, of course, relevant to the issue of calling IME doctors as witnesses since their evidence typically relates to their beliefs and conclusions; in other word, the IME doctor’s opinions. It follows, therefore, that if their opinion is to be admitted as evidence, the IME doctor must be properly qualified as an expert.

The new Rule 4.1.01 is aimed at ensuring a proposed expert witness recognizes that their duty, in tendering evidence, is to the Court and not to any party in the action. Rule 4.1.01 states as follows:

Duty of Expert

4.1.01(1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,

(a)     to provide opinion evidence that is fair, objective and non-partisan;

(b)     to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and

(c)     to provide such additional assistance as the court may reasonably require to determine a matter in issue.

Duty Prevails

(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.

Rule 53.03 deals largely with the requirements of an expert’s report, which ought to be served on all parties prior to trial. Rule 53.03 states as follows:

53.03(1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference required under Rule 50, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).

(2)  A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).

(2.1)  A report provided for the purposes of subrule (1) or (2) shall contain the following information:

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,

(i)    a description of the factual assumptions on which the opinion is based,

(ii)   a description of any research conducted by the expert that led him or her to form the opinion, and

 (iii) 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.

Who can testify?

Treating doctors who do not comply with the requirements of Rule 53.03 may still testify to their factual observations. Experts, on the other hand may testify to their factual observations and their opinions. However, as a general rule, experts may only testify if they 1) are properly qualified as an expert; and 2) satisfy the requirements of Rule 53.03, including the requirements incumbent upon counsel to serve an expert’s report on all parties well in advance of the pre-trial.

I have no clue what a “factual observation” is, nor do I have any idea why courts have been enthusiastic to draw such a distinction. In my opinion, allowing the treating doctor to testify as to their observations of the patient but not to their prognostications is overly idiosyncratic and also misleading to the jury.

Evidential Parameters of Expert Evidence

Since the expert witnesses may only give opinion evidence if the opinion relates to matter solely within the expert’s area of expertise, it is incumbent upon both the expert and the party calling the expert to ensure that the expert’s testimony does not overstep the bounds of the witness’s expertise. In fact, there ought to be no question that, during the stage where an IME doctor is qualified as a witness, opposing counsel will vet the credentials, training, and experience of the doctor.  Accordingly, I make a habit of reminding all my expert witnesses, prior to trial, of this limitation to their testimony.

Indeed, I have found that there is almost nothing worse, than, at trial, having counsel object to a witness overstepping the bounds of their expertise and the trial judge delivering a scathing rebuke.

It is worth noting, that despite an expert being properly qualified, a judge may still rule that the expert’s proposed evidence not be offered to the Jury. For example, in Gutbir  v. University Health Network[2] (“Gutbir”)a medical malpractice case, the Plaintiffs sought to call as an expert witness, a neonatologist who treated the plaintiff at a different hospital after she was born. Wilson J. in refusing to admit that expert to testify would remark that the jury would be further confused by the testimony of the doctor in two roles, both as a treating physician and an expert witness; furthermore, the jury would be tempted to accord more significance to the opinion of that doctor, having been the Plaintiff’s treating physician, than the opinions of other experts.

Particularly when appearing before a Jury at trial, Counsel ought to be mindful of “potential objections” to an IME doctor’s testimony. “Potential objections”, as I call them, have more to do with the way in which an expert’s testimony might be received by a jury, then the qualifications of the expert or the quality of the expert’s testimony. Nevertheless, this type of objection might cause a judge to determine the expert’s evidence ought to be withheld from the jury.

In my experience, this position makes no sense. Why a treating doctor who has treated and evaluated the patient over a period of time and who is likely an expert in their field could not testify due to a fear that the jury would accord that testimony undue weight, is a mystery. I argue that this not undue weight it is most due weight.

Diligent counsel ought to nevertheless consider “potential factors”. I have found that these factors may include, the potential that an expert’s evidence may cause the jury to apprehend bias (whether present or not), the potential that a jury might accord undue weight to the expert’s evidence and the potential that expert’s evidence may be too technical for a jury to understand. Indeed, judges are aware of and try to avoid circumstances, where the expert’s evidence is so technical that a jury is likely to simply defer to it.

Obligations under Rule 53. How far do they go?

Justice Wilsonin Gutbir, would state, “The amendments made to Rule 53.03 were meant to ensure the impartiality of expert opinions and to ensure the duty of experts are to the court to provide objective opinions.[3]”

Therefore, the obligations under Rule 53 typically go so far as necessary to ensure that the expert offering the opinion evidence maintains his/her duty to the court and not to any party in the proceedings. This mandatory duty, however, has not been defined as mere neutrality; rather an expert witness is required to “meet the [more stringent] test of an appearance of neutrality” Girao v. Cunningham[4] (“Girao”)[5].

In Girao, at paragraph 54, Master Short would further define the standard applicable to expert witnesses at trial, as follows:

In Frazer, [2008] O.J. No. 3277, I said:

  • Whatever role the expert may have undertaken during the course of the litigation in assisting counsel to a fuller appreciation of the facts in dispute and the inferences that might be drawn from them, the expert must set aside that role upon entering the witness box at trial. From the witness box the expert speaks only to assist the court.
  • At trial the expert must be and appear to be independent of the party or counsel who retained the services of the expert and must demonstrate objectivity and impartiality in the analyses and opinions that she or he is allowed to give. Because the opinions stated by an expert are predicated upon expertise that the court does not possess, the court must be confident in relying upon the expert to provide a thorough, balanced and technically sound analysis. Independence and impartiality; the court expects nothing more and it will accept nothing less.
  • The court endeavors to adjudicate each matter coming before it fairly and free from bias. To the extent that the court must receive and rely upon the expert opinions of others and to the extent that those opinions are tainted, the administration of justice is imperiled.

Accordingly, if satisfied that prejudice will not be suffered and also convinced that the requisite standard for neutrality and duty to the court is present, courts have shown a propensity to relax the strict requirements of Rule 53.03.[6]

Insurance medical examiners giving evidence at trial: None, some or all?

Determining whether the IME doctor may give evidence at a tort trial is largely related to the issue of whether the doctor is bound by the requirements of Rule 53.03. It follows, therefore, that if the doctor is bound by the requirements of 53.03 then doctor ought to not be allowed to offer opinion evidence unless the doctor has complied with the Rules. Complying with the Rules regarding expert evidence, however, is arguably impossible for an IME doctor, since Rules 4.1.01, 53.03 and the Acknowledgment of Expert’s Duty form refer to the expert having been retained by a party(ies) to the proceeding.

Despite the foregoing, I have not found any Ontario cases which prohibit the IME doctor from testifying at the tort trial under any circumstance. For such a conclusion to be drawn it must be found both, that the requirements set out in Rule 53.03 always apply to the IME doctor and that the requirements can never be relaxed. On the other hand, several recent Superior Court decisions, have relaxed the Rule 53 requirements in the context of calling IME doctors at tort trial. A recent case has even eliminated the Rule 53 requirements altogether for the IME doctor called to tort trial.

In Beasley et al. v. Barrand[7] (“Beasley”), a case often referred to as the leading case regarding the calling of IME doctors at tort trial, Justice Moore denied the Defendant’s motion to call three IME doctors or file the reports of those doctors. The doctors were retained by the insurer in the accident benefits action and the accident benefits insurer was not a party to the tort proceedings. Despite the fact the Defendant had made efforts to have the doctors sign a Form 53, Acknowledgment of Expert’s Duty, Justice Moore found that the doctors had misunderstood and incorrectly signed the Form 53. The Justice further criticized the Defendant for not having made reasonable efforts to assist the three experts to an understanding of the requirements of Rule 53.03.

Justice Moore qualified his reasoning by adding that he was not holding, as a rule, experts retained by accident benefits insurers are prohibited from offering opinion evidence in tort actions; rather experts retained by accident benefits insurers should first make utmost efforts to comply with Rule 53.03. In fact, Moore J. suggests that the IME doctors, at the Defendant’s expense, create reports that would comply with amendments regarding expert evidence. However, it is difficult to understand why the accident benefits independent medical examiner, who is instructed only to deal with questions in the present tense in their report, have in practice been allowed to give a prognosis, regardless of Rule 53.03.

Arnand v. State Farm[8](“Arnand”), an unreported decision, concerned largely the same facts as Beasley. However, Justice Stinson held that the IME doctors would be allowed to testify only to their “factual observations” and not to their opinions or conclusions. Justice Stinson agreed with counsel for the Plaintiff that since none of the experts were retained by the Defendant to examine the Plaintiff in connection with the tort action, the proposed witnesses did not meet the requirements of 53.03. However, the justice tried to balance this with the principle that it is not improper for those who having direct knowledge of the Plaintiff’s condition to testify at trial, even when that knowledge may have been gleaned from an accident benefits claim-based examination.

In Slaght v. Phillip[9] (“Slaght”), Justice Turnbull agreed with the reasoning of Justice Moore in Beasley, but felt the need to define categories of experts and whether Rule 53.03 would apply to each particular category. With respect to witnesses retained by third parties, the justice grouped the experts into those that provide litigation opinions to the third parties that retained them (typically, with respect to causation, proper treatment, and eligibility for insurance coverage), and those experts who are paid by third parties but whose primary purpose is to assist the person with his/her needs (although these experts might still produce reports expressing opinions respecting treatment and the persons condition.) Justice Turnbull determined that Rule 53.03 applied to the former but not the latter.

In making this finding, the justice relied on the distinction made in Burgess v. Wu[10] (“Burgess”) between “treatment opinions” which are opinions formed at the time of treatment, and “litigation opinions” which are opinions formed for the purpose of assisting the court at trial and not for the purpose of treatment.  According to Justice Turnbull, the purpose of Rule 53.03 is directed at “litigation opinions” rather than at “treatment opinions”.

Justice MacLeod-Beliveau in McNeill v. Filthaut[11] (“McNeill”), on the other hand, explicitly disagreed with the reasoning of the judges in Beasley andSlaght. She determined that the key factor triggering applicability of the Rule 53.03 requirements is being engaged by or on behalf of a party. MacLeod-Beliveau J., therefore, finds that IME doctors are not required to comply with the requirements set out in Rule 53.03 (2.1) since they are not retained by a party; similarly, it would be misleading for them to sign the Form 53 since they are not engaged by or on behalf of a party.

In rejecting the logic of Stinson J. in Anand, MacLeod-Beliveau J. states that allowing an IME doctor to testify regarding their factual observations but not the opinions they formed based on those factual observations, would severely limit the value of the expert evidence; the witness would be unable to convey an accurate portrayal of their findings, and this would have the potential of confusing a jury.

Report Production

To summarize several key components of R. 53.03 as they relate to the expert’s reports: 1) the party seeking to call the expert at trial must serve on every other part to the action a report of the expert 90 days in advance of the pre-trial or 60 days in the case of an expert’s rebuttal report; 2) the report of the expert must contain information, helping verify the neutrality and objectivity of the report; and 3) the report must contain an acknowledgment of expert’s duty in Form 53 signed by the expert.

Again this amendment to the former rule, requiring that reports be served 30/60/90 days before trial, makes no sense. Indeed, Counsel has no way of knowing at which point in time the pre-trial will occur, and thus the practicality of this rule eludes me. Further, different jurisdictions in Ontario have different practices for setting a pre-trial date and the time of the pre-trial in relation to the trial necessarily differs across the province. Moreover, Counsel has very little warning before a pre-trial is scheduled and definitely not enough time to manage their expert reports and determine which ones will be relied on at trial.

It is always prudent, however, in personal injury actions to serve all necessary experts’ reports on the opposing party well before the mediation. I find this strategy allows for the insurer’s reserves to be adequately set and that the person with authority to settle (usually the adjuster) comes to mediation with the appropriate monetary amounts to resolve the matter. However, in practice, they rarely come prepared with enough money, in any event. It also seems to me that insurers are holding on to money, despite knowing they will eventually have to pay it out, so that interest can accrue to them and not the Plaintiff.

Notwithstanding the strict requirements of Rule 53.03, Courts have granted relief from the requirements in a variety of circumstances. Grigoroff v. Wawanesa Mutual Insurance Co.[12] (“Grigoroff”) involved a situation where the experts’ reports (which predated the amendments) did not comply with the requirements listed in subrule 2.1 of Rule 53.03.  The experts did not set out their employment and education, their instruction letters were not produced, two doctors did not appear to have signed an acknowledgment to expert’s duty, whereas one did so but not within the time limits required under the rule. Justice Wilson explained, however, that while it was troubling that the reports did not technically comply with the requirements of Rule 53.03, the reports still contained the information contemplated by Rule 53.03(2.1).  The reports set out the issues the experts were asked to opine on and the reasons for the opinion and the instructions given to the experts were indicated in their reports.

Justice Wilson determined that a court can relieve of the requirements set out in 53.03(2.1) if it is in the interests of justice to do so.  Citing Justice Moore in Beasley v. Barrand, Justice Wilson agreed that “there may be cases where it is not possible (to comply with Rule 53.03) and then the court might consider reliving against non-compliance to ensure a fair adjudication of the issues up their merits…[13]”  Furthermore, Justice Wilson explained no prejudice would have resulted to the Plaintiff by reason of admission of the expert opinions as the Plaintiff was in possession of the reports for more than a year and knew that defence intended to rely on the opinions at trial.  Moreover, the contents of the reports were probative and would be of great assistance to the jury in understanding mater at issue

Similarly, in Brandiferri v. Wawanesa Mutual Insurance Co.[14]  (“Brandiferri”) Justice Lauwers allowed experts’ reports which were not in strict compliance with Rule 53.03 to be tendered as evidence. In doing so, Justice Lauwers noted that although the new rules have retrospective effect, Rules 2.01 to 2.03, and 53.03 allow the Court to relieve a party from strict compliance with a rule where trial fairness demands. The Justice also found relevant that the expert’s reports were written years before the amendments came into effect and accordingly, the reports were not required to comply with all the formal elements of Rule 53.03 to be introduced as evidence in this case.

In Gardner v. Hann[15] (“Gardner”) the plaintiff served a number of expert reports after the first pre-trial date. Despite acknowledging the fact that expert reports ought to have been served 90 days prior to the pre-trial, Justice Wilson exercised her discretion in admitting the expert evidence. To support her exercise of discretion, Wilson J. quoted Justice Barr in Hunter v. Ellenberger,[16] “relevant evidence should not be excluded on technical grounds, such as lack of timely delivery of a report, unless the Court is satisfied that the prejudice to justice involved in receiving the evidence exceeds the prejudice to justice involved in excluding it.[17]”

Lawyers and experts alike, often ask me if they are required to enclose their instructing letters in the report that ought to be served on all counsel. Indeed, the wording of Rule 53.03 (2.1) (3) refers only to the instructions provided to the expert in relation to the proceeding. There is no mention of instructing document. However, in Fowler v. Belair Insurance Co.[18] Eberhard Jrequired that instruction letters be produced 90 days before the pre-trial.

Further, I have found that Defence counsel will almost always request copies of the correspondence between counsel and the expert. For that reason, and because instructions letters may be ordered producible under the new amendments, I make a habit of advising my experts to enclose the instructing letter in their reports. Further, I always ensure that these letters are drafted with a view to any potential inferences which a judge or enterprising defence counsel might infer from the contents of the letter. Thus I keep my instructing/retaining letters as professional and as sparse as possible. Although I may be on a first name basis with the expert, and may even be a friend, I avoid the appearance of familiarity. You will never see a “Dear Frank” or “Hi Suzy” as a salutation. Likewise, with good communication, and if one has had a good discussion with the expert, then the expert understands the task and sparseness is all that is required.

Improving your odds at getting the IME’s testimony admitted

I have found that the likeliest scenario in which an IME Doctor will be allowed to testify is if counsel satisfies the requirements for service of the expert’s report and if the IME doctor attempts to satisfy the requirements aimed at proving impartiality and found in subrule 53.03(2.1), to the extent possible. In that case, Judges will more often than not allow the IME doctor to testify, particularly if their evidence is highly probative; especially if the evidence is not prejudicial to any party.

As a practical matter, Counsel may wish to consider simply retaining the IME doctor to examine their client for the purpose of the tort proceeding. Counsel and the expert should then comply with the Rules and simply tender the new report instead of the one that was prepared for the accident benefits action.

Another option, might be to argue that a given independent medical examiner is offering a “treatment opinion” and not a “litigation opinion”. Though there are potential pitfalls to this strategy. In Kusnierz v. Economical Mutual Insurance Co.[19] (“Kusnierz”), for example, Justice Lauwers only accorded minimal weight to the IME doctor’s evidence; Lauwers J. would refer to the doctor as a “passionate advocate” for Mr. Kusnierz and as having formed a “therapeutic alliance” with Mr. Kusnierz. However, to this date, I have no idea what Lauwers J. was referring to – the physician in question simply performed a Catastrophic Impairment Assessment and could not possibly have formed a “therapeutic alliance”.

Always communicate with the IME doctor before Trial

Counsel wishing to call the evidence of an IME doctor ought to communicate effectively with the doctor prior to trial. Counsel should review the expert’s report and serve it on the other parties to the proceedings well in advance of the pretrial. Furthermore, it is incumbent on counsel to ensure that the doctor is properly qualified to render expert opinion evidence in the proceedings. Therefore, counsel should endeavor to find out the limits of the IME doctor’s expertise, so as to ensure that the testimony given by the IME doctor falls squarely within the doctor’s area of expertise.

It is advisable for opposing counsel to also communicate with the IME doctor prior to trial. There is no property in the witness. Opposing counsel will want to become aware of the doctor’s expertise and any potential biases, so as to ensure the testimony to be offered is relevant, necessary, impartial, and within the expert’s area of expertise.

What if the same specialty is being called to testify?

Both the Ontario and Canada Evidence Acts contain limits on the number of expert witnesses each side may call without leave of the trial judge. These statutory restrictions were meant to save the court’s time and to acknowledge the fact that the case is not meant to be decided on the basis of a numerical count of experts called on each side.[20]The Ontario Evidence Act[21] permits a party to call three experts while the Canada Evidence Act[22]permits a party to call five experts. However, under both Acts leave may be granted at any time during the trial.

Counsel ought to be mindful of the criteria for admitting expert evidence and of the factors relevant to a motion for leave to call additional witnesses, in particular. Sopinka J., speaking for the Court in R v. Mohan[23], indicated that the following prerequisites ought to be met before any expert evidence can be introduced:

(a) relevance;

(b) necessity in assisting the trier of fact;

(c) the absence of any exclusionary rule; and

(d) a properly qualified expert.

Counsel should further note that the party tendering the expert evidence bears the burden to establish, on a balance of probabilities, that the evidence satisfies these four pre-conditions.[24] Likewise, “the burden lies on a party seeking to increase the number of expert witnesses it intends to call in the case to seek and obtain the approval of the court to do.[25]”

Taking into account case law and the circumstances of the case, Ferguson J., in Burgess, provides a list of relevant factors which ought to be considered by trial judges in deciding whether to grant leave to call additional expert witnesses. Counsel may wish to address these factors in the affidavit materials accompanying their leave application. The factors are as follows:

  1. Whether the opposing party objects to leave being granted.
  2. The number of expert subjects in issue.
  3. The number of experts to be called on each subject.
  4. The number of experts called in similar cases.
  5. Relative prejudice to the parties.
  6. Necessity of calling multiple experts.
  7.  Whether there is any duplication in the proposed opinions of different experts
  8. The time and cost involved in calling experts.

In my opinion, the critical aspects of a leave application involves demonstrating that each proposed witnesses is necessary to the appreciation of a significant aspect or aspects of the case and proving that the balance of prejudice favours the introduction of the evidence. I would further caution counsel, the leave application is fact driven exercise and shall always take into account the circumstances and complexity of the case. Case law may be relied upon by counsel to help illustrate the merits of the application, but it is by no means determinative.

In Leonard v. Klein[26], a tort action arising out of a motor vehicle accident, Ellis J. granted the Plaintiff leave to call several additional expert witnesses; the Justice permitted an orthopaedic surgeon, a psychiatrist, a psychologist and an actuary to testify, reasoning that each had addressed the issue of the plaintiff’s employability from the standpoint of a different field, hence the testimony of these witnesses was not duplicative. On the other hand, the reluctance of courts, in my opinion, to introduce the evidence of two orthopaedic surgeons, each of whom would address issues of impairment from somewhat different perspectives, has always mystified me.[27]The reasons underlying the above example certainly have to do with shortening the length of trial and the number of experts.  However, the opinion overlooks the fact that, as an example, in the practice of orthpaedics today there is a significant level of specialization.

When my client has a significant arm and a significant leg injury, I generally use two different specialists since they have the highest level of expertise in the particular area in question. Why, in that case, two orthopaedic surgeons would be precluding from testifying is beyond reason. I also have no appreciation for why any judge would refuse to allow the filling of reports, regardless of the number of experts who testify.

When to determine the issue?

In some cases it may be possible to rule on the admissibility of the proposed evidence on the basis of counsel’s submissions alone. However, it may at times prove necessary to hold a voir dire in order to properly consider all relevant factors. Where the trial is before a jury and the question of admissibility cannot be clearly determined in a summary fashion, it may indeed be prudent to scrutinize the evidence during the course of a voir dire before admitting it.[28]

Sometimes the determination of admissibility will be made at the start of the trial and sometimes it will be made later, when the value of the proposed evidence can be properly assessed.

I would, however, advise counsel to attempt to determine the issue at an early stage, even before or during the pre-trial, especially if the trial is to be heard by a jury. Therefore, I advise all counsel to attend at the pre-trial prepared to argue either for or against the number of proposed witnesses or even the merits of a proposed witness. In fact, early resolution of the issues surrounding the calling of expert witnesses to trial was certainly an impetus behind the January 1, 2010 amendments to Rule 50. The new Rule 50 provides: in the case of an action, the number of expert witnesses and other witnesses that may be called by each party, and dates for the service of any outstanding or supplementary experts’ reports, is a matter to be considered at the pre-trial. The trial judge, however, shall have the residual discretion to make the final determination as to whether the proposed evidence shall be introduced.

Parting Thoughts: the View from the Bench

As Justice Moore opined in respect of expert evidence, more is not necessarily better.[29] Accordingly, the trial judge performs the critical role of gatekeeperthroughout the trial process. The gatekeeper role is exercisedboth in connection with controlling the nature of the evidence and the science supporting it as well as controlling the number of experts and the overlap in the evidence they may offer.  It is with a view to his/her role as a gatekeeper, that the trial judge makes decisions such as whether relief from compliance with the strict requirements of Rule 53.03 ought to be allowed and/or whether a given witness, including an IME doctor, ought to be allowed to testify as an expert witness. The gatekeeper task, however, does not simply present a binary choice: exclusion or admission. Parts of proposed testimony can be excluded and other parts admitted. Strategies including appropriate cautionary jury instructions could also be used to solve some problems.

The trial judges’ role is limited, on the other hand, in the sense that a judge is charged only with the responsibility to decide whether the evidence is sufficiently reliable to merit its consideration by the jury. The integrity of the trial process requires that the trial judge not overstep this function and encroach onto the jury’s territory. In fact, the Supreme Court of Canada has said that once an expert’s evidence is admitted, “[d]eficiencies in the expertise go to weight, not admissibility.[30]”

Counsel’s strategy for calling the IME doctor may nevertheless have a profound effect on the trial, as well. Thus counsel ought to reflect on whether it is truly necessary to elicit opinion evidence from the IME doctor; perhaps the client would be better served with the IME doctor merely testifying to fact. Indeed, when testifying only to fact, the IME doctor would presumably not have to deliver reports under Rule 53.03 and would not have to acknowledge a supervening duty of impartiality to the court.

Attention to the objectives of the court and the integrity of the trial process and reflection on the judge’s role as a gatekeeper is paramount. Thoughtful consideration of these matters will assist in the development of prudent strategies which are in the best interests of the parties and the court, each and every time a litigant is faced with the myriad of issues surrounding the calling of an IME doctor to tort trial.

[1] R.R.O., 1990, Reg 194.

[2] Gutbir (Litigation guardian of) v. University Health Network, [2010] O.J. No. 4982.

[3] Ibid., at para 11.

[4] [2010] O.J. No. 3642.

[5] Girao involved a motion brought by defence counsel to compel the Plaintiff in a motor vehicle accident to attend three defence medical examinations. Counsel for the Plaintiff objected to psychiatrist examiner nominated by the insurer, because that psychiatrist was connected with the Multi-Disciplinary Assessment Centre; the same organization a psychiatrist that had previously examined the Plaintiff had been connected with. Master Short, in his written endorsement, would order the Plaintiff to attend for examination at a different psychiatrist, nominated by the Defendant, since the Master was “not satisfied that the proposed psychiatrist meets the test of an appearance of neutrality in this case.”

[6] See: Brandiferri , Infra, at note 14; GardnerInfra, at note  15; Grigoroff , Infra, atnote 12.

[7] 2010 ONSC 2095.

[8] (2010), 85, C.C.L.I (4th) 34.

[9] [2010] O.J. No. 5343.

[10] Burgess (Litigation guardian of) v. Wu, [2005] O.J. No. 929.

[11] [2011] O.J. No. 1863.

[12] [2011] O.J. No. 2277.

[13] Ibid., at para 21.

[14] [2011] O.J. No. 2723.

[15] [2011] O.J. No. 2578.

[16] [1988] O.J. No. 49.

[17] Supra, atnote 15at para 14.

[18] [2011] O.J. No. 18.

[19] [2010] O.J. No. 4462.

[20] John Sopinka, Sidney N. Lederman & Alan W. Bryant, The Law of Evidence in Canada (2nd ed.), at 665.

[21] R.S.O., 1990, c. E. 23.

[22] R.S.C., 1985, c. C-5.

[23] [1994] 2 S.C.R. 9.

[24] R v. Terceira, 107 O.A.C. 15.

[25] Eli Lilly and Co. v. Apotex Inc., [2007] FC 1041.

[26] 2011 O.J. No. 2001.

[27] In Marsland v. Nochez [1995] O.J. No. 5119, leave to call two different orthopedic surgeons that examined the Plaintiff several years apart was held to be duplicative and therefore denied. Similarly, a court would not allow two orthopaedic surgeons, one that specializes in legs and the other arms for example, to testify.

[28] R v. K. (A.) 125 O.A.C. 1.

[29] Suwary (Litigation guardian of) v. Women’s College Hospital, [2009] O.J. No. 553 at para 36.

[30] R. v. Marquard, [1993] 4 S.C.R. 223.