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Patterson v. Peladeau, 2018 ONSC 2625 (CanLII)
Brain Injury Grief Is Extraordinary Grief
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Papamichalopoulos v. Greenwood, 2018 ONSC 2743 (CanLII), <http://canlii.ca/t/hrrxc
[10] Given the nature of the plaintiff’s allegations (the severity of the injuries he says he suffered and their alleged permanence) and the depictions set out in the photos found (depictions which, on their face, appear to be at odds with the plaintiff’s allegations), photographs of the plaintiff, both before and after the trauma that he alleges having suffered, are relevant. Photographs taken after the alleged incident are relevant to the effect (and its evolution) of the injuries on the plaintiff’s enjoyment of life; and photographs taken before are relevant for comparison (see: Morabito v. DiLorenzo, 2011 ONSC 7379(CanLII), at para. 5).
[11] “Where, [as here], in addition to a publicly-accessible profile, a party maintains a private Facebook profile….it is reasonable to infer from the presence of content on the party’s public profile that similar content likely exists on the private profile. A court then can order the production of relevant postings on the private profile” (Leduc v. Roman, 2009 CanLII 6838 (ON SC), 2009 CarswellOnt 843, at para. 30).
Sivananthan and Coachman
2018-05-08, Decision: Appeal, Final Decision, FSCO 5536
For the reasons that follow, I conclude that the Arbitrator correctly ordered payment of medical benefits and IRBs, where the order was based upon Coachman’s complete failure to respond to Ms. Sivananthan’s claims. The order cannot be supported, where payment is based upon what the Arbitrator considered to be an improper response. The Arbitrator also erred in failing to precisely determine the amount of IRBs payable, after deducting post-accident income. Therefore, the issue of the amount of IRBs payable must be re-heard. As a result the question of whether the Arbitrator erred in amending his order to allow deduction of post-accident income is moot. The Arbitrator also erred in ordering Coachman to pay Non-Earner Benefits (NEBs) without knowing that the conditions for entitlement to payment will be met at the time when payments will become due.
The Arbitrator correctly concluded that Coachman unreasonably delayed or denied payment of the benefits that survive this appeal, therefore his order for payment of a special award stands. However, the Arbitrator erred in failing to fix the amount of the award with precision. Therefore, the question of the amount of the special award is remitted for re-hearing.
The Arbitrator found that Coachman committed several breaches of its obligations under the Schedule, justifying a special award. He ordered Coachman to pay the highest possible special award, in an undetermined amount. He ruled that Coachman is precluded from taking the position that Ms. Sivananthan’s injuries fall within the MIG. He fixed the quantum of IRBs at $255.71 per week and he ordered Coachman to pay IRBs, from one week after the 1st accident and ongoing. The Arbitrator also ordered payment of ongoing NEBs, with the caveat that Ms. Sivananthan cannot collect the NEBs as long as she continued to receive the IRBs. The Arbitrator also ordered Coachman to pay for all of the claimed treatment, for the In-Home Assessment and for the Disability Certificate. He reasoned that Coachman is liable to pay Ms. Sivananthan her “full expenses” of the arbitration. He ordered payment of expenses, in an amount to be determined.
The Arbitrator found the following conduct by Coachman to be unreasonable, with regard to the benefits that survive the appeal:
· Failing to use the available information to calculate weekly IRBs
· Failing to respond to the claim for IRBs
· Failing to respond to claims for treatment
I am satisfied that the Arbitrator correctly concluded that Coachman must pay a special award because of its complete failure to respond to the treatment plans that survive this appeal, and its complete failure to respond to Ms. Sivananthan’s claim for IRB. The issue of the amount of the special award is remitted for re-hearing.
A special award can only be attached to benefits owed at the time it is made. Therefore the Arbitrator’s order is rescinded as it relates to the treatment plan in the amount of $1,245.64, the treatment plan in the amount of $3,089.00, dated November 1, 2014 and the In-Home Assessment. I note that the Arbitrator made no finding that Ms. Sivananthan was in fact too ill to attend the assessment that she did not attend regarding the treatment plan of November 1, 2014. The question of entitlement to a special award regarding these benefits is remitted for re-hearing. Since nothing is payable for NEBs, no special award can flow from the Arbitrator’s findings in this regard.
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Nasir v. Kochmanski, 2018 ONSC 3052 (CanLII), <http://canlii.ca/t/hs232
[17] While counsel for the plaintiff urged that one of the grounds for an adjournment was alleged improper issuance or signing of summonses to witnesses, there is no evidence in support of that allegation, nor was any authority offered by counsel on this ground.
[18] Counsel for the plaintiff was most reluctant to acknowledge that the only basis upon which the adjournment was sought was alleged serious misconduct on the part of the defendant’s defence medical expert, Dr. Adrian Upton.
[19] In the course of his submissions, counsel for the plaintiffs stated that if the trial were to proceed, he plans on calling as witnesses, counsel for the defendant, who were present in court on this motion, to demonstrate that Dr. Upton has committed a “fraud” in terms of the medical legal reports he has provided for the purpose of deceiving the court. No evidence was adduced on behalf of the plaintiffs with respect to the alleged fraud or misconduct on the part of Dr. Upton, other than a submission, based entirely on speculation at this point, that the last report from Dr. Upton was forged and not signed by him. This ground for the adjournment request is based entirely on counsel’s own assessment of Dr. Upton’s handwriting, without any evidence whatsoever being offered in support of this submission.
[20] Further, counsel for the plaintiffs took the position that as there is negative judicial commentary about Dr. Upton in prior tribunal decisions and civil cases an adjournment should be granted in order to allow him an opportunity to further investigate the evidence that is available with respect to those earlier proceedings where Dr. Upton provided expert medical evidence.
[21] The plaintiffs’ counsel intends on relying on and introducing evidence at trial on decisions from an administrative tribunal and prior judicial commentary in regard to Dr. Upton’s qualifications as a medical expert witness and as to his credibility.
[22] Section 36 (3) of the Regulated Health Professions Act has been held to constitute an absolute prohibition against the use of information and evidence adduced before a tribunal such as the Health Professions and Appeal Board in a subsequent civil proceeding.
[23] In M.F. v. Sutherland, 2000 CanLII 5761 (ON CA), [2000] O.J. No. 2522 (C.A.) at para. 29 Laskin JA stated as follows in regard to s. 36 (3):
[29] I find no relevant indicators of legislative meaning to
displace the presumption in favour of the ordinary meaning of s.36(3). The purpose of s. 36(3) is to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings – a health professional, a patient, a complainant, a witness or a College employee – fearing that a document prepared for College proceedings can be used in a civil action. This purpose would be defeated by reading a fraud or bad faith exception into s. 36(3). The mere allegation of fraud or bad faith, however unfounded, could make the provision inapplicable.
[24] Following Sutherland, the court in Montgomery v. Seiden, [2012] O.J. No. 136 (SCJ) at para 52 expressly stated that the absolute prohibition contained in s. 36 (3) applied to information from a complaint to the Health Professions and Appeal Board. See also: Conroy v. College of Physicians and Surgeons of Ontario, 2011 ONSC 324 (CanLII), [2011] O.J. No. 136 (SCJ).
[25] Thus, contrary to the submissions of counsel for the plaintiff, I have concluded that any prior tribunal decisions or court rulings with respect to Dr. Upton are inadmissible at this trial and as such the plaintiffs’ request for an adjournment based on the need for further investigation of past tribunal rulings does not form a reasonable basis upon which the adjournment of this trial should be granted.
[26] As to prior judicial rulings and decisions regarding Dr. Upton’s qualifications and credibility, the Court of Appeal Court of Ontario has recently dealt with this issue in its decision Bruff-Murphy v. Gunawawardena, 2017 ONCA 502 (CanLII). In upholding the trial judge’s decision prohibiting cross-examination of the defendant’s expert witness regarding prior civil and arbitral findings made against him, Hourigan J.A. stated as follows at para’s 31 – 32:
[31] I do not accept this argument. In my view, the prior comments made about Dr. Bail do not amount to a finding of discreditable conduct. Rather, they are the opinions of a judge and two arbitrators regarding the reliability of his testimony in particular cases. This is analogous to the situation in Ghorvei, where a witness’s credibility had been attacked in previous proceedings. Charron J.A. (as she then was) held at para. 31 that those credibility findings from the previous proceedings were not proper material for cross-examination:
In my view, it is not proper to cross-examine a witness on the fact that his or her testimony has been rejected or disbelieved in a prior case. That fact, in and of itself, does not constitute discreditable conduct. I do 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 this witness in the context of another case. The triers of fact who would witness this cross-examination would not be able to assess the value of that opinion and the effect, if any, on the witness’s credibility without also being provided with the factual foundation for the opinion.
See also R. v. Boyne, 2012 SKCA 124 (CanLII), 405 Sask.R. 163, at paras. 48-51, leave to appeal refused, [2013] S.C.C.A. No. 54.
[32] In the present case, the 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.
[27] I have thus concluded that any prior judicial rulings or decisions relating to Dr. Upton’s qualifications as an expert witness or in respect of his credibility are wholly inadmissible in this pending trial.
[28] It is asserted by plaintiffs’ counsel that an adjournment of this trial is required in order to further investigate Dr. Upton’s credibility as a medical expert and as well the “Scheme”, as alleged, wherein counsel essentially submits that counsel for the defendant has been acting in concert with Dr. Upton to deceive the court in past proceedings.
[29] This ground for the adjournment request is based entirely on speculation alleging a conspiracy by Dr. Upton and the defendant’s lawyers to deceive the jury and the court in this case. There is absolutely no evidence whatsoever to support these most serious allegations which included, in counsel’s submissions, an allegation of fraud as against Dr. Upton and defence counsel.
[30] In his submissions, counsel for the plaintiffs further urged that given the court’s parens patriae duty, regard must be had for protection of the interests of the minor plaintiff in the circumstances of this case.
[31] The focus of that submission was entirely based on counsel’s desire to conduct further investigation regarding the very serious allegations made with respect to Dr. Upton and counsel for the defendant.
[32] Counsel acknowledged that there are five neurological experts who have treated and examined the minor plaintiff and have concluded that he has sustained a traumatic brain injury as a result of the motor vehicle accident giving rise to this action. Thus, in spite of his submissions with respect to the qualifications of the only defence medical expert, Dr. Upton, he states that there is substantial evidence as to the nature and the extent of the plaintiff’s injuries. All of that evidence will be available for the judge and the jury to consider.