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Bakalenikov v. Semkiw, 2010 ONSC 4928 (Master) (Rule 53.03 – expert witnesses)

Judgment Released: September 15, 2010  Link to Judgment

In the second of a “trilogy” of cases relating to Rule 53.03 and the duties of experts (Adams v. Cook being the first, link to summary on this blog and 2010 ONSC 4946 being the third, to be released), the Court dealt with a motion by the Plaintiff that his medical examination be video or audio recorded. 

The Court commented on the Osborne Report and the case law relating to the duties of experts, noting that “… the new duty of an expert to the court comes with a previously unaddressed potential issue for trial counsel. Before, the plaintiff could remind the jury that the expert was retained by the defendant. Now counsel for the defence may seek to enhance the evidence of such experts by pointing out that the expert is the court’s expert, without any risk of bias as his or her primary duty is now to the court. Surely,  if it can be argued that such experts bear an implicit imprimatur of the court, the court has an obligation to ensure to the extent possible that the experts have understood and acted in accordance with their new, very different, responsibilities.”  

The Court noted that the Expert’s Acknowledgement and Undertaking required by Rule 53.03(2.1) ”…must be read as seeking to improve the way expert evidence is procured.”  Further, the Master noted that each Court “…expects and relies upon frank and unbiased opinions from its Experts. This is a major sea change which requires practical improvements to past opaque processes. How are long time plaintiffs’ and defendants’ experts to be “trusted” to change their stripes? At the initial stages skilled, licenced professionals clearly must be taken at their word that on principal they take their Form 53 Undertaking to Court seriously. They are clearly promising to bring a new, transparent and objective mind set to the drafting of their reports and to their subsequent testimony.”

In reaching its finding and ordering that an audio (but not video) recording of the examination be taken, the Court acknowledged that the proposed expert had on at least three occasions had his opinions disregarded by the Court for bias and advocacy for the defendant and had been criticized as being “an advocate for the party calling him as a witness.”  The Court further noted that the defendant/respondent on the motion presented no evidence that a recording would be impractical, intrusive or an obstacle to the expert conducting the interview and examination.  In fact, the Court noted that the expert in question has deposed that if ordered to record the examination, he would not conducted the examination at all.  In ordering an audio recording of the examination, the Master noted that “That is of course his prerogative.”

Bakalenikov v. Semkiw, 2010 ONSC 4928 (Master) (Rule 53.03 – expert witnesses)

Kingspan Insulated Panels Ltd. v. Brantford (City), 2010 ONSC 4610 (S.C.J.) (Rule 20 – summary judgment)

Judgment Released: September 13, 2010  Link to Judgment

On a motion for summary judgment in an action relating to the disclosure required in a land purchase transaction, the Court noted that, despite the change in the wording of Rule 20, there has been no essential change to the test for summary judgment.  In dismissing the motion and citing the decision of Justice Karakatsanis in New Solutions Extrusion Corp v. Gauthier (summarized on this Blog), the Court stated that although the additional powers granted to the motions judge, to weigh evidence, evaluate credibility and draw inferences, are more akin to the powers of a trial judge, the task of the motions judge is different from that of a trial judge: “The motions judge must take a ‘hard look’ at the evidence to determine whether it raises a genuine issue requiring a trial”.  The Court went on to note that the onus on the moving party was to show there was no genuine issue requiring a trial and both parties are required to “put their best foot forward”.

Kingspan Insulated Panels Ltd. v. Brantford (City), 2010 ONSC 4610 (S.C.J.) (Rule 20 – summary judgment)

Thirukumar v. Aravinthan et al., 2010 ONSC 4839 (S.C.J.) (Rule 20 – summary judgment)

 Judgment Released:  September 3, 2010  Link to Judgment

In an action relating to default under a mortgage, the Court dismissed a motion and cross-motion for summary judgment brought by the parties.  The Court noted that, despite its expanded powers to decide summary judgment motions, it remains the motion judge’s task to determine whether there is a genuine issue requiring a trial.  Noting that the test for summary judgment remains the same as the test set out by the Court in Irving Ungerman Ltd. v. Galanis, and agreeing with the analysis in Healey v. Lakeridge Health Corporation (summarized on this Blog), the Court stated that “the moving party must provide a level of proof that demonstrates that a trial is unnecessary to truly, fairly and justly resolve the issues”.  In dismissing both motions, the Court noted that the parties provided “diametrically opposed” versions of events and even with the power to weigh evidence and evaluate the credibility, the versions of events differed to such a significant degree that the “forensic machinery” of a trial would be required to resolve the issues.

Thirukumar v. Aravinthan et al., 2010 ONSC 4839 (S.C.J.) (Rule 20 – summary judgment)

McHardy v. Ball, 2010 ONSC 5321 (S.C.J.) (Rule 1.04 – proportionality)

Judgment Released: September 27, 2010   Link to Judgment

The plaintiffs sought production of studies possessed by the defendant city for review by the plaintiffs’ expert.  The studies bore on whether a break-away traffic pole should have been installed at a certain intersection.  The defendant opposed the motion and sought, as an alternative, to cross-examine the plaintiff’s expert on the motion under Rule 39.03.  The Court granted the plaintiffs’ motion and stated that given Rule 1.04(1) “the request to examine the plaintiff’s expert on a simple documentary productions motion is entirely out of proportion to the matters at issue.”

McHardy v. Ball, 2010 ONSC 5321 (S.C.J.) (Rule 1.04 – proportionality)

Battistella v. Rossi, 2010 ONSC 5336 (S.C.J.) (Rule 20 – summary judgment)

Judgment Released: September 27, 2010  Link to Judgment

The plaintiff commenced an action six years after a motor accident but within two years of an MRI which helped her understand whether her injuries exceeded the statutory threshold.  The court denied summary judgment to the defendant based on a limitations defence, holding that discoverability was a genuine issue for trial.

Battistella v. Rossi, 2010 ONSC 5336 (S.C.J.) (Rule 20 – summary judgment)

Girao v. Cunningham, 2010 ONSC 4607 (Master) (Rule 4.1.01 – duty of expert; Rule 53.05 – expert witnesses)

Judgment Released:  August 27, 2010  Link to Judgment

[Note: this decision is currently under appeal.]

In a motor-vehicle injury case, the plaintiff had undergone several medical examinations, but none to date by defence experts.  The defendant sought an order for three defence medicals; the plaintiff resisted any defence medicals, given the volume of already-existing medical reports. 

The Court granted the defendant’s motion, but noted that the new Rules regarding experts mean that the plaintiff was entitled to expect a different approach to defence medical examinations by doctors appointed by an insurer due to the duties now set out in Rule 4.1.01 and 53.03.  The Court quoted from the discussion on these Rules in Beasley v. Barrand, 2010 ONSC 2095, including that the Rules are aimed at “reining in the growing use of and reliance upon the evidence of experts at trial.”  The Court ordered counsel for the defendant to provide the Endorsement to their experts, who would have to acknowledge receiving and reading the Endorsement in their Acknowledgement of Expert’s Duty.

Girao v. Cunningham, 2010 ONSC 4607 (Master) (Rule 4.1.01 – duty of expert; Rule 53.05 – expert witnesses)