[27]               When an expert and that expert’s report is notably partisan, acts as judge and jury, advocates for the insurer rather than being impartial, is not credible, and fails to honour the undertaking to the court to be fair, objective, and non-partisan, it directly affects a party’s right to a fair trial.

[28]               Kane J. in Bruff-Murphy v. Gunawardena, 2016 ONSC 7 (CanLII), held that Dr. Bail was not a credible witness and that he failed to honour his obligation and written undertaking to be fair, objective and non-partisan pursuant to Rule 4.1.01 (see paras. 53-125). He did not meet the requirements under Rule 53.03. Justice Kane found that Dr. Bail’s report and testimony was not of a psychiatric nature but was presented under the guise of expert medical testimony and the common initial presumption that a member of the medical profession will be objective and tell the truth.  He further held that the purpose of Rule 4.1.01 is to prohibit and prevent such testimony in the guise of an expert, and that “Dr. Bail undertook and thereby promised to not do what he did in front of this jury.” Importantly, Justice Kane held that, “I will not qualify witnesses as experts in the future whose reports present an approach similar to that of Dr. Bail in this case.”

[29]               Additional critical findings in relation to Dr. Bail can be found in Gordon v. Greig (2007), 46 C.C.L.T. (3d) 212 (Ont. S.C.J.), at paras. 43-48; Sidhu v. State Farm Mutual Automobile Insurance Co., 2014 CarswellOnt 18595 (F.S.C.O. Arb.), at para. 68; Sohi v. ING Insurance Co. of Canada, 2004 CarswellOnt 3236 (F.S.C.O. Arb.), at paras. 35-41; Gabremichael v. Zurich Insurance Co., 1999 CarswellOnt 4480 (F.S.C.O. Arb.), at para. 132; and Rocca v. AXA Insurance (Canada), 1999 CarswellOnt 5506 (F.S.C.O. Arb.), at para. 66.

[30]               The recent changes to the Rules to require experts to undertake to the court to be fair, objective, and non-partisan has done little if anything to curb the use of certain favoured biased “hired guns” by the parties. The consequences of an expert signing the undertaking and failing to honour their obligation in their expert report or evidence is simply the rebuke of the court.  This does nothing to prevent that same expert from being further retained and repeating the process over again in other trials as long as trial counsel are willing to retain them.

[31]               Rule 33.02 provides that the court shall name the health practitioner by whom the independent medical examination is to be conducted. It could be argued that the court, in the exercise of its discretion, should therefore consider and determine in appropriate cases whether or not the proposed named health practitioner is biased in favour of a party on the balance of probabilities and therefore fails to qualify as an expert under Rule 4.1.01. The court’s discretion would therefore include the discretion not to name a particular health practitioner if that health practicioner fails to meet the criteria set out in Rule 4.1.01 on the basis of bias. While it would be uncommon to find an expert biased and impartial, such an expert so found should not be allowed to have any role in the court process.

Citation: Daggitt v Campbell, 2016 ONSC 2742 (CanLII), <http://canlii.ca/t/gpqm3>

Read the full case via CanLII – 2016 ONSC 2742 (CanLII)

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