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.”