Aug 7, 2018
ONSC gives three rulings regarding admissibility of expert evidence and surveillance evidence in motor vehicle accident jury trial
Author Michael S. Teitelbaum
Please find below my partner, Bevin Shores' three notes about three evidentiary rulings on surveillance evidence, and the admissibility of expert evidence on behalf of the plaintiff and defendant, made by Ontario Superior Court Justice McKelvey in Wray v. Pereira, a mva action.
In Wray v. Pereira, Justice McKelvey, sitting at Oshawa, gave three evidentiary rulings (each reported separately) with respect to expert evidence and surveillance evidence. The underlying action is a personal injury claim arising from a December 31, 2012 motor vehicle accident, being tried before a jury.
Wray v. Pereira, 2018 ONSC 4623, is a ruling as to the admissibility of surveillance evidence, particularly the admissibility of surveillance evidence for substantive purposes. The plaintiff had agreed that the surveillance could be used for purposes of impeachment provided that a proper foundation was laid.
The surveillance had been disclosed in Schedule B of the defendant’s Affidavit of Documents more than two years before the trial, but was not produced to the plaintiffs until approximately 6 weeks before trial in the case of the surveillance report, and just over 2 weeks before trial, in the case of the surveillance video. Significantly, the surveillance video had been provided to the defence’s orthopaedic expert before it was produced to the plaintiff, and more than 90 days before trial. (The admissibility of this expert’s evidence is addressed in another of McKelvey J.’s rulings.)
The defence argued that it could not give the 90 days’ notice required under rule 30.09 because they could not reasonably have anticipated that the trial would be scheduled to take place so soon after the pre-trial. McKelvey J. rejected this argument, finding that privilege had been waived when the defence provided the surveillance video to their expert:
“ Rule 30.09 provides as follows:
Where a party has claimed privilege in respect of a document and does not abandon the claim by giving notice in writing and providing a copy of the document or producing it for inspection at least 90 days before the commencement of the trial, the party may not use the document at the trial, except to impeach the testimony of a witness or with leave of the trial judge.
 The defence acknowledges that it did not abandon its claim for privilege 90 days before the commencement of trial, but argues that this was because of the fact that it could not reasonably anticipate prior to the pre-trial that this case would be set for trial so shortly after the pre-trial. However, it is significant in my view that the defence delivered a copy of the surveillance report when it delivered its pre-trial memo on April 9, 2018, approximately two weeks before the pre-trial. There is no explanation for why a copy of the video was not provided at this time as well. It is apparent that the significance of the video surveillance was fully appreciated by the defendants. If they had intended to use the video surveillance video for any other purpose other than impeachment, I would have expected the video itself to be produced at the same time as they produced written reports of the surveillance.
 Further, the defence received a request for a copy of the video surveillance in an email on April 30, 2018, but did not respond to this request until May 7, 2018, only a week before trial. The explanation provided by the defence that they did not keep a copy of the video in their office does not provide an adequate explanation for the delay in providing the video to plaintiff’s counsel. I see no reason why a copy of the video could not have been picked up promptly from either Dr. Finkelstein’s office or the investigator who conducted the surveillance.
 Further, I have concluded that the surveillance video should have been delivered for inspection by January of 2018. Where a party has provided a document over which privilege is claimed to a health practitioner for the purpose of preparing a report pursuant to rule 33.06, there is a waiver of any litigation privilege. In Aherne v. Chang, 2011 ONSC 3846 (CanLII), Justice Perell notes that if a defendant discloses surveillance evidence to a health practitioner, “then the defendant has waived the litigation privilege associated with the surveillance evidence”. As Justice Perell notes at para. 13, “put somewhat differently, the defendant’s voluntary disclosure of surveillance evidence to a health practitioner for the purposes of a defence medical has the consequence that the surveillance evidence should be immediately disclosed to the plaintiff”.”
McKelvey J. concluded that the defendant had not satisfied the test for granting leave under Rule 53.08, and the prejudice had occurred that could not be overcome by an adjournment or costs:
“ The case law makes it clear that in considering whether leave should be granted under rule 53.08, a trial judge must grant leave unless to do so would cause prejudice that cannot be overcome by an adjournment or costs. See Marchand v. The Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 OR (3d) 97 (ONCA). This mandatory orientation is understandable since relevant evidence, including surveillance is ordinarily admissible. I accept that the exclusion of the surveillance evidence in this case will prevent the defendant from adducing some relevant evidence. In a civil trial the goal is to have a fair adjudication of the dispute on its merits, subject to overall principles of fairness to both parties.
 However, the Court of Appeal has made it clear that the court expects parties to comply fully and rigorously with the disclosure and production obligations under the rules. Where significant prejudice occurs, exclusion of surveillance evidence is justified. The leading case in this area is Iannarella v. Corbett, 2015 ONCA 110 (CanLII). In that case the Court of Appeal concluded that the defence had breached their obligations in disclosing surveillance evidence. At para. 90 of their decision the Court found that the trial judge erred by failing to advert to and apply the rule 53.08 test in its entirety. As a result, the conditions for admissibility under rule 53.08 were not satisfied and it was therefore an error for the trial judge to have admitted the surveillance evidence.”
 In the present case there would not appear to be any basis to exclude the surveillance evidence for purposes of impeachment. This is based on the fact that the defendants did disclose the existence of the surveillance report in their Affidavit of Documents and presumably would have disclosed the particulars of the surveillance had they been asked about this at examination for discovery.
 However, by failing to produce the surveillance video when they were required to do so, I have concluded that there will be significant prejudice to the plaintiff if the evidence is used substantively by the defence. The plaintiff has not had the benefit of considering the surveillance in the context of any pre-trial settlement. This includes consideration of the surveillance video in the preparation and delivery of any rule 49 offers. In addition, given that the defence motion was not brought until the plaintiff was giving his evidence, the plaintiff is at some disadvantage in planning the most effective strategy for dealing with this evidence in the plaintiff’s examination in chief. The plaintiff also argues that they have been disadvantaged because they have not had an opportunity to obtain responding reports from medical physicians they intend to call at trial. They refer to the fact that there is an order excluding witnesses which prevents them from speaking with these witnesses. I am mindful that there could be an order made to address this situation. For example, I could provide an exception to the order excluding witnesses which would facilitate the preparation of responding reports by the plaintiff’s experts. In any event, it is my understanding that the medical witnesses have in fact been shown a copy of the surveillance video.
 However, there are more general concerns about allowing the surveillance evidence in at this point. The defence motion was not brought until after opening statements were made by both parties to the jury and the plaintiff had started to give his evidence in chief. The defence argues that the plaintiff could have brought a motion itself to exclude the surveillance evidence earlier. However, I accept the plaintiff’s position that it was not entirely clear whether the defence intended to introduce the video for substantive purposes. There was no clearly stated position by the defence about their intended use of the video when they delivered the video surveillance to the plaintiff on May 7, 2018. The reason for the plaintiff’s demand for the video surveillance was on the basis that privilege may have been waived by the plaintiff if in fact the video surveillance had been given to Dr. Finkelstein. It is also apparent that the onus to bring a motion for leave under rule 53.08 lies with the party seeking leave to introduce the evidence, which in this case is the defendant.
 This is not a situation where an adjournment can cure the potential prejudice to the plaintiff. The trial has commenced. The time for making offers to settle under rule 49 have expired. The parties have committed to their positions in the openings which have been given and much of the plaintiff’s evidence in chief has already been given. Defence counsel has suggested that this problem has been caused as a result of the court’s refusal to grant them the adjournment requested. However, at the time of the adjournment request no reference was made to this issue, and therefore it was not considered by me.”
In the result, the surveillance evidence was not admissible for substantive purposes.
The decision in Wray v. Pereira, 2018 ONSC 4621 is a ruling as to the admissibility of the evidence of Dr. Finkelstein, the defence’s expert, who had reviewed the surveillance evidence that had not been produced to the plaintiff until less than 90 days before trial.
In the ruling discussed in the previous case note, Wray v Pereira, 2018 ONSC 4623, McKelvey J. had concluded that the surveillance evidence was not admissible for substantive purposes due to the defence having failed to comply with Rule 30.09 of the Rules of Civil Procedure.
Justice McKelvey allowed the expert to testify with certain terms and conditions, but cautioned that “defence counsel should not assume that a medical expert who has reviewed surveillance evidence will always be allowed to testify where the rules relating to that surveillance have not been complied with” (para 22).
The positions of the parties were summarized at paras. 3-4:
“… the plaintiff objects on the basis that Dr. Finkelstein has reviewed a surveillance video taken by the defendant’s investigator. This is referenced in his report. In a previous ruling I held that the surveillance video could not be used for substantive purposes in this action in large part based on the defendant’s failure to comply with their disclosure obligations.
 The defence position is that it will suffer serious prejudice if Dr. Finkelstein is not allowed to testify. The defence argues that any prejudice can be minimized by requiring Dr. Finkelstein not to make any reference to the surveillance evidence in the course of his evidence. In response to this argument, the plaintiff states that there will still be significant prejudice because they will not be in a position to cross-examine Dr. Finkelstein about some of the evidence which he has relied upon in reaching his opinion. To do so would inevitably bring the existence of the surveillance, which has been held to be inadmissible, to the attention of the jury. The plaintiff therefore reiterates that it will suffer prejudice which cannot be remedied if Dr. Finkelstein is allowed to testify.”
McKelvey J. ruled that Dr. Finkelstein would be allowed to testify on certain terms and conditions, namely that Dr. Finkelstein will not be allowed to comment on any of the surveillance evidence in his examination-in-chief; on cross-examination, the plaintiff will be entitled to cross-examine Dr. Finkelstein on his knowledge of the plaintiff’s activities as disclosed in the plaintiff’s evidence, both in examination-in-chief and cross-examination; and on cross-examination, the plaintiff will also be entitled to cross-examine Dr. Finkelstein on the surveillance video. However, if the plaintiff elects to cross-examine on the surveillance directly, this is without prejudice to the right of the defendant to conduct any re-examination it may be entitled to under the rules.”
McKelvey J. concluded that “Dr. Finkelstein’s opinions were not directly impacted by the surveillance, but the surveillance was taken into account and was considered as being supportive of the opinions he had reached in this case,” (para 8) following a voir dire in which Dr. Finkelstein testified, in part, that “the opinions expressed in his report were the same regardless of the surveillance” (para 7).
After reviewing the case law concerning the admissibility of expert opinion evidence, including the Supreme Court of Canada’s White Burgess decision, at para 16 of his reasons, McKelvey J. provided a succinct summary of considerations to weigh when determining the admissibility of “expert opinion evidence which is to some extent based on inadmissible surveillance evidence:”
“(a) To what extent is the expert’s opinion based on inadmissible surveillance evidence and to what extent is it based on other admissible evidence?
(b) To the extent that the opinion is based on inadmissible evidence can a jury be properly instructed on the limited weight to be given to that evidence?
(c) To what extent will inadmissible evidence be introduced indirectly through the evidence of the expert?
(d) What is the prejudice to the party calling the witness if the evidence is excluded?
(e) What steps are available to minimize any prejudice if the expert is allowed to testify?”
McKelvey J. then reasoned:
“ In the present case I accept that Dr. Finkelstein’s evidence is substantially based on his own examination of the plaintiff and his evidence under normal circumstances would be admissible. To the extent that Dr. Finkelstein has relied on the surveillance video, the degree of prejudice to the plaintiff has been substantially reduced. This is because in his cross-examination, defence counsel has cross-examined the plaintiff about the activities which are shown on the video. In his cross-examination the plaintiff has acknowledged his ability to carry out the relevant activities shown in the video. Thus, without referring to the surveillance video itself, plaintiff’s counsel will be able to cross-examine Dr. Finkelstein on the foundational facts which form the substance of the video surveillance.”
McKelvey J. concluded his reasons with a caution:
“ While I have determined that Dr. Finkelstein is entitled to give evidence in this case, the question of admissibility is largely influenced by the factual circumstances in this case. In my view, defence counsel should not assume that a medical expert who has reviewed surveillance evidence will always be allowed to testify where the rules relating to that surveillance have not been complied with. There may certainly be situations where the probative value of the evidence is outweighed by its prejudicial effect. In the present case, however, I have concluded that the probative value exceeds any potential prejudice, but that conclusion is very much tied to the particular circumstances in this case.”
Further to the previous case notes regarding this action, the decision Wray v. Pereira, 2018 ONSC 4622 is a ruling as to the admissibility of the evidence of two orthopaedic surgeons proposed to be called by the plaintiff. One expert, Dr. Luba, was a treating doctor and put forth as a “participant expert”; the other, Dr. Ogilvie-Harris, was a Rule 53 expert.
McKelvey J. ruled that both experts would be permitted to testify.
The parties’ positions were summarized at paragraphs 5-6:
“ The defence position is that Dr. Ogilvie-Harris’ report duplicates the opinions provided by Dr. Luba and that the inclusion of a second orthopedic surgeon, whose conclusions are the same as the first, is not in the interest of a speedy and just resolution of this matter. Further, the defence argued that Dr. Ogilvie-Harris has been found to have blurred the boundary between acting as an expert witness and acting as an advocate in a number of court decisions. Finally, the defence refers to the fact that in responding to the plaintiff’s case, it only has one expert and that allowing the plaintiff to introduce evidence from two orthopedic surgeons would unfairly prejudice the fairness of the trial for the defendants.
 The plaintiff in response takes the position that while there is some overlap between the evidence of Dr. Luba and Ogilvie-Harris, there are also a number of important differences which justifies allowing both physicians to testify. They also argue that to exclude Dr. Ogilvie-Harris, would leave the defence with the only rule 53 expert testifying at trial. It is argued that this would unfairly prejudice the plaintiff’s ability to present its case at trial. They refer to the fact that Dr. Ogilvie-Harris has challenged the opinion of the defence Orthopedic Surgeon, Dr. Finkelstein, whereas Dr. Luba as a participant expert has not “entered the debate”.”
McKelvey J.’s analysis is at paragraphs 7 through 17, and includes, notably, discussion of the defence’s argument that prior judicial comment with respect to Dr. Ogilvie-Harris ought to affect the admissibility of his evidence:
“ It is apparent that a critical issue for trial will be the extent to which the plaintiff’s current symptoms are related to his pre-existing condition of arthritis as opposed to being the consequences of the motor vehicle accident. On this issue it would appear that the opinions of Dr. Ogilvie-Harris are quite important for the plaintiff’s case. In his report dated December 14, 2016 which outlines his anticipated evidence, he states that prior to the accident the plaintiff had no symptoms, although arthritis was present. Subsequent to the accident, Dr. Ogilvie-Harris states that the plaintiff has suffered significant symptoms and functional loss which is consistent with aggravation of the pre-existing arthritis by the trauma of the motor vehicle accident. As a result he states, “the trauma has played a material role in producing pain, functional limitations and necessitating surgical intervention”. The surgical intervention referred to by Dr. Ogilvie-Harris is knee replacement surgery.
 I accept that there appears to be some significant overlap between the opinions of Dr. Ogilvie-Harris and those of Dr. Luba. In a report prepared by Dr. Luba dated July 25, 2017, he states:
My initial impression was that this gentleman had pre-existing osteoarthritis in his right knee which had been slightly bothering him but not significantly affecting his ability to function or to do the activities that he enjoyed doing on a day to day basis. However, trauma sustained at the time of the motor vehicle accident seemed to cause his right knee to flare up. The pre-existing arthritis which was not that bothersome became more of an issue and he started to develop swelling of the knee which led to Baker’s Cyst formation posteriorly.
 It is significant to note that this is not a case where the plaintiff needs to seek leave of the court to call more than three experts pursuant to s. 12 of the Evidence Act, RSO 1990, c E.23. The plaintiff is only proposing to call one rule 53 expert. In Davies v. The Corporation of the Municipality of Clarington, 2016 ONSC 1079 (CanLII), Justice Edwards concluded at para. 40 that a plaintiff does not have to seek leave to call any of the plaintiff’s treating doctor’s to the extent that they are testifying as a participant expert. Thus, in this case, the plaintiff is only seeking to call one rule 53 expert. In any event, even if Dr. Luba is considered to be an expert witness, the total number of experts being called does not exceed three and leave is therefore not required under s. 12 of the Evidence Act.
 Prima facie a party has a right to call up to three rule 53 experts at trial. However, even if s. 12 of the Evidence Act is not engaged, I have concluded that this is subject to the right of the court to act as a gatekeeper to exclude evidence which is not necessary. Under the criteria established under the Supreme Court of Canada decision in R. v. Mohan, 1994 CanLII 80 (SCC),  2 SCR 9, necessity is a requirement for the admission of expert evidence. To the extent that the evidence of one expert simply duplicates that of another, there may well be a live issue as to whether an expert’s evidence is necessary. As noted by Justice Edwards in the Davies decision, trial judges are constantly reminded of their obligation to act as the gatekeeper when it comes to the admission of expert evidence. However, in my view, where a party intends to call a participant expert, a court will be less inclined to exclude that evidence as it provides the relevant factual background which a court will require to understand the circumstances surrounding a party’s treatment. In many cases the rule 53 experts will be relying on the opinions, observations and treatment decisions of treating clinicians when forming their rule 53 opinions.
 In the Westerhof v. Gee Estate, 2015 ONCA 206 (CanLII) decision, the Court of Appeal confirmed that a court retains its gatekeeper function in relation to opinion evidence from both participant and non-party experts. At para. 64 of their decision, the court concludes:
As with all evidence, and especially all opinion evidence, the court retains its gatekeeper function in relation to opinion evidence from participant experts and non-party experts. In exercising that function, a court could, if the evidence did not meet the test for admissibility, exclude all or part of the opinion evidence of a participant expert or non-party expert or rule that all or part of such evidence is not admissible for the truth of its contents.
 I therefore conclude that a court is expected to exercise its gatekeeper function for all expert opinion regardless of whether the provisions of s. 12 of the Evidence Act are engaged. However, courts are less likely to intervene to exclude the evidence of a participant expert like Dr. Luba, where he provides factual evidence with respect to his treatment of the plaintiff, provided that his evidence does not go beyond the scope of an opinion formed in the course of treatment.
 With respect to the evidence of Dr. Ogilvie-Harris, it is apparent that his opinion, although it overlaps to some extent with Dr. Luba, has a number of significant differences. Dr. Ogilvie-Harris provides an opinion as to whether the injuries suffered by the plaintiff exceed the threshold set out in s. 267.5 of the Insurance Act, RSO 1990, c I.8. This is an opinion which would obviously be beyond the scope of a participant expert like Dr. Luba. Dr. Ogilvie-Harris has also challenged the opinion of the defence expert, Dr. Finkelstein, which will be an important consideration for the jury in its consideration of all the relevant evidence. It is also significant that as a rule 53 expert, Dr. Ogilvie-Harris has had the opportunity to consider all available and relevant information concerning the plaintiff’s alleged injury. This contrasts with a participant expert like Dr. Luba who is limited to the information he had available at the time of his treatment.
 In these circumstances I have concluded that while there is some overlap between the opinions of Dr. Luba and Dr. Finkelstein, there are also important differences which justify the plaintiff being allowed to call both Dr. Luba as a participant expert and Dr. Ogilvie-Harris as a rule 53 expert. This is not a situation which in my view will represent, “overkill” as suggested by the defence.
 With respect to the defence allegation that Dr. Ogilvie-Harris has demonstrated bias or acted as an advocate as referenced in other court decisions, I am mindful that the prior judicial comments about an expert which the defendant relies on here are only the opinions of the court in other cases, which on their own should not be sufficient to disqualify Dr. Ogilvie-Harris. In Bruff-Murphy v. Gunawardena, 2017 ONCA 502 (CanLII), the Court of Appeal considered a ground of appeal based on the fact that the trial judge ruled that an expert could not be cross-examined regarding prior court or arbitral findings made against him. The Court of Appeal did not accept this argument and stated that the prior comments made about the expert did not amount to a finding of discreditable conduct. Rather they represented the opinions of a judge and two arbitrators regarding the reliability of his testimony in particular cases. The Court of Appeal did not think it would be useful to allow cross-examination of a witness on what is, in essence, no more than an opinion on the credibility of unrelated testimony given by the witness in the context of another case. At para. 32 of their decision in Bruff-Murphy, the court states:
[T]he comments of the judge and arbitrators about Mr. Bail’s testimony in the previous cases would have been of no assistance to the jury without an understanding of their factual foundation. That necessary context would only have served to divert the jury from the task at hand and convert the trial into an inquiry regarding the reliability of Dr. Bail’s testimony in the three other proceedings. Thus, in my view, the trial judge did not err in prohibiting this line of cross-examination.
 In my view, if the defence in this case wishes to take issue with the issue of potential bias by Dr. Ogilvie-Harris, it should be done in the context of a voir dire in which the criteria under R. v. Mohan and subsequent case law including the Court of Appeal decision in Bruff-Murphy can properly be considered.
 For purposes of this decision, I have assumed that the opinion evidence to be given by Dr. Luba properly falls within the context of his role as a participant expert. To the extent that his evidence goes beyond those limits, then he would have to be qualified as a rule 53 expert. His evidence in that regard would then have to be considered separately under the court’s gatekeeper function. This is consistent with the Court of Appeal’s decision in Westerhof, where the Court states, “if participant experts or non-party experts also proffer opinion evidence extending beyond the limits I have described, they must comply with rule 53.03 with respect to the portion of their opinions extending beyond those limits.”
McKelvey J. commented in conclusion:
“ Finally, even had I concluded that it would inappropriate for the plaintiff to call both Dr. Luba and Dr. Ogilvie-Harris, I would not accept the defence position that I should require the plaintiff to call Dr. Luba over Dr. Ogilvie-Harris. The choice of which witness to call is within the discretion of the plaintiff. It would not be appropriate for the court to dictate to the plaintiff which of two witnesses should be called in the event that the overlap in evidence justifies excluding one of the witnesses.”