[21] Dr. Hershberg testified that for the past five years or so, 80 to 90 per cent of his income has been generated from conducting defence medical examinations – for defendants in litigation or for insurers in responding to claims. He estimated that (a) as of 2014 he did 80 to 90 assessments per year and (b) in the five years leading up to the date of trial he had done 400 to 500 assessments in total. He charges $600 per hour for his services.
[22] In cross-examination, Dr. Hershberg acknowledged that his curriculum vitae does not portray the extent to which he has been doing assessments for the past five or more years.
[23] Dr. Hershberg’s experience in conducting assessments includes doing other types of assessments within the motor vehicle insurance system and the Workplace Safety and Insurance context. The majority of the information about Dr. Hershberg’s assessment work appears in his curriculum vitae under the heading “Ontario Insurance Commission” (the “Commission”). I find that the appearance created by the manner in which that work is described and included in the curriculum vitae is that the work is in some way done under the auspices of the Commission. In addition, the manner in which that work is described and is included in the curriculum vitae serve to downplay the prevalence in Dr. Hershberg’s work of the defence medical examinations and assessments for insurers.
[24] Based on Dr. Hershberg’s level of experience in conducting defence medical and other assessments, I draw the following inferences:
• He is aware that his qualifications are not likely to be tested on cross-examination unless and until the dispute proceeds to trial or to an arbitration;
• He knows that a copy of his curriculum vitae is provided with his reports when they are served on an opposing party and may be provided to the Court in the course of litigation, the latter including for the purpose of pre-trial conferences;
• He understands that the contents of his report are considered, at least in part, in light of his qualifications and experience as set out in his curriculum vitae;
• He is aware that the contents of his report may play a role in the settlement positions adopted by parties to a dispute; and
• He is aware that the contents of his report, including in the light of his experience as detailed in his curriculum vitae, may contribute to settlement recommendations made by judges and others presiding over pre-trial and other forms of settlement conferences.
[25] It is troubling to me that Dr. Hershberg, carrying out the type of work that he does and understanding the purpose served by his curriculum vitae and reports, is not more careful with respect to the accuracy of and the impression left by the information set out in his curriculum vitae.
[26] I am also concerned by the lack of attention to accuracy demonstrated by the manner in which Dr. Hershberg dealt with the mechanics of the collision – both when he interviewed the plaintiff and when giving evidence at trial. Dr. Hershberg testified that he made notes while interviewing the plaintiff. At the end of the day on which the examination was conducted he would, as was his practice, have dictated his report relying at least in part on his notes.