▪ Evidence of Dr. Faris
[207] The qualification of Dr. Faris as an expert witness was relatively brief; there was no cross-examination. This qualification process followed a pattern that had developed over time (in particular subsequent to the discharge of the jury). When possible, counsel agreed prior to the qualification process, as to the wording of the qualification ruling the court would be requested to make.
[208] Dr. Faris was qualified as a litigation expert (a) in the field of physical medicine and rehabilitation, and (b) to give opinion evidence with respect to causation, pre-collision diagnoses, post-collision diagnosis, present condition, future condition, and future treatment—all related to Mark’s injury-related physical impairment including traumatic brain injury, musculoskeletal matters, and chronic pain.
[209] The concerns with respect to Dr. Faris’ testimony did not arise at the qualification stage; the concerns arose both during examination-in-chief and cross-examination. Regardless of timing, because of the court’s gatekeeping function, it is incumbent on the court to carry out a cost-benefit analysis with respect to Dr. Faris’ testimony. The Ontario Court of Appeal describes this aspect of the court’s function as a “discretionary gatekeeping step” (Bruff-Murphy v. Gunawardena, 2017 ONCA 502 (CanLII), 414 D.L.R. (4th) 65, at para. 36).
[210] I have both general and specific concerns with respect to Dr. Faris’ testimony. My first general concern is Dr. Faris’ practice of not taking comprehensive notes during the interview portion of a defence medical examination. In keeping with that practice, Dr. Faris does not have any notes from his interview of Mark.
[211] While Mark answered questions during the interview portion of the defence medical examination, Dr. Faris wrote “cues”, not notes, upon which he relied later in dictating his report. The cues consist of single words, statements, and acronyms that might be organized or might be scattered on a page. Dr. Faris uses the same approach in his clinical practice—on cues only to dictate his clinical records.
[212] For the physical examination part of the evaluation, Dr. Faris followed his practice of recording only abnormal findings. In some circumstances, he records a number only; the meaning of the number is clear only to him.
[213] Dr. Faris described the cues and other records made as a “tool” for dictation. Dr. Faris acknowledged that if the pages were still available he would not necessarily be able to decipher them now; the cues are neither structured nor elaborate enough to be a record of the encounter.
[214] Relying on the cues, Dr. Faris dictated his report on the night following the day on which he interviewed and examined Mark. The invoice for Dr. Faris’ work identifies that he spent seven hours dictating the report. He testified that the entire report was dictated in one session subsequent to the examination.
[215] The concerns with respect to Dr. Faris’ practice go beyond the issue of the quality of his note-taking; the concerns extend to what he did with his cues and other notes. Once Dr. Faris had dictated his report, he shredded the pages on which he wrote the cues from the interview with Mark.
[216] At paragraph 25 of its decision in Bruff-Murphy, the Court of Appeal described the trial judge as “highly critical” in his analysis of the evidence of an expert witness called by the defendant. The criticisms included the expert’s practice of “discarding any notes he may have made during his interview of [the plaintiff] as to what she allegedly told him” (para. 25).
[217] My second general concern with Dr. Faris’ testimony is that for the purpose of his examination-in-chief, Dr. Faris prepared pages of handwritten notes in which he set out the evidence as he intended to give it. In essence, he had prepared a script. The notes are 25 pages in length. The existence of and reliance on the notes were identified part way through Dr. Faris’ examination-in-chief. The notes were made an exhibit (Exhibit 38) and Dr. Faris was cross-examined on their contents.
[218] The reliance on prepared notes alone is a concern. I am also concerned about Dr. Faris’ evidence as to how he made decisions with respect to the records or reports to which he would refer during his testimony. Dr. Faris attempted to portray, as something other than deliberate, the bases for his decision to exclude from his script a number of pre-collision records that (a) make reference to some stability in Mark’s condition, and/or (b) provide evidence that the post-collision cognitive difficulties Mark has been experiencing differ from the pre-collision cognitive difficulties, if any, from which Mark suffered.
[219] I reject Dr. Faris’ explanation in that regard. I find that Dr. Faris was deliberate in his approach to the contents of the prepared notes; he struck out references to records or reports that did not support his opinion.
[220] The two general concerns discussed above contribute to a third general concern: that Dr. Faris failed to understand his professional obligations.
[221] In cross-examination, Dr. Faris was referred to a Policy Statement by the College of Physicians and Surgeons of Ontario (Exhibit 36). Policy Statement #2-12 is titled, “Third Party Reports: Reports by Treating Physicians and Independent Medical Examiners”. That Policy Statement was approved in 2002, reviewed and updated in 2009 and 2012, and appears to have most recently been published in 2012 (i.e. three years prior to the year in which the defence medical examination was conducted by Dr. Faris).
[222] The introductory section of the Policy Statement includes the following paragraphs:
Third party reports may relate to a physician’s patient, or to individuals with whom physicians do not have a treating relationship. The request for the report may come from the physician’s patient directly, or from an external party, such as a representative from an insurance company or a lawyer.
The College acknowledges that the third party reports process often gives rise to unique issues that can be difficult to navigate. The expectations articulated in this document are intended to assist physicians in navigating these issues effectively, so that they are able to participate in the third party reports process in a manner that is respectful, objective and that uphold the reputation of the profession. The policy does not, however, provide an exhaustive catalogue of the totality of requirements that may apply to specific third party reports requests.
[223] I find that Dr. Faris’ reliance on cues, his failure to retain meaningful notes of the interview, and his failure to retain meaningful notes of the examination fall far short of preparation of a third party report “in a manner that is respectful, objective and that uphold[s] the reputation of the [medical] profession.”
[224] I also have a number of specific concerns with Dr. Faris’ testimony. The first such concern is with respect to the contents of a Consultation Note prepared by Dr. Grabowski and dated June 2011. Dr. Grabowski saw Mark at the Ottawa Hospital Pain Clinic, on referral from the Cancer Clinic.
[225] In her note, Dr. Grabowski states, “Mr. Rolley describes an approximately 15-year history of significant total body pain.” During his examination-in-chief, Dr. Faris identified that portion of Dr. Grabowski’s note as “one of the most significant areas of [Mark’s] past history”, adding that “there was really extensive documentation over many years of a pattern of wide-spread body pain.”
[226] In cross-examination, Dr. Faris acknowledged that he was unable to corroborate the statement made by Dr. Grabowski regarding a “15-year history of chronic pain”. Dr. Faris then testified that the reference to the 15-year history of chronic pain was not significant to his analysis on causation. Dr. Faris’ flip-flopping in his testimony, in particular on the critical issue of causation, is one of the specific concerns contributing to my conclusion that Dr. Faris was not objective when giving evidence.
[227] Dr. Faris’ lack of objectivity is also evident from the manner in which he testified with respect to the contents of the ambulance call report—in particular the lack of any record having been made at the scene of the collision of loss of consciousness or loss of awareness.
[228] Dr. Faris was dogmatic in (a) emphasizing the contents of the ambulance call report, and (b) refusing to acknowledge the potential lack of reliability of the contents of that report. By contrast, Dr. Judge, acknowledged the potential lack of reliability of the ambulance call report. Dr. Faris’ unwavering approach to the contents of this document is another factor in my conclusion that he was not objective when testifying.
[229] Like Drs. Mendella and Judge, Dr. Faris testified that a brief loss of consciousness is a factor in diagnosing mTBI. For Dr. Faris’ opinion to prevail, it was important that a finding be made that there was no reliable evidence of loss of consciousness. In his testimony, Dr. Faris expressed the opinion that Mark did not suffer an mTBI.
[230] Dr. Faris’ obligations as a defence medical examiner and a litigation expert testifying at trial do not end with the obligations quoted from the Policy Statement. On November 5, 2015, Dr. Faris executed a Form 53, Acknowledgement of Expert’s Duty. That is also the date on which the defence medical examination was carried out and on which Dr. Faris dictated his report.
[231] On the basis of the general and specific concerns discussed above, I find that Dr. Faris did not fulfill his obligation pursuant to para. 3(a) of Form 53: “to provide opinion evidence that is fair, objective and non-partisan”. That finding is determinative of whether the prejudicial effect of admitting Dr. Faris’ evidence outweighs the benefits of that testimony—it does. Exercising the court’s gatekeeper function, I exclude Dr. Faris’ evidence in its entirety.
[232] I turn to the evidence with respect to post-collision exacerbation of Mark’s chronic pain condition.