Number of Experts
[1] The Plaintiff seeks an Order limiting the parties to one expert each in the area of emergency medicine.
[2] The Plaintiff says that he will be relying on the evidence of one expert witness only dealing with the standard of care in the assessment, cleaning and closing of the Plaintiff’s wound, and the Defendant should likewise be limited to one such expert, for the following reasons:
(a) The defence experts in emergency medicine all have similar qualifications;
(b) The defence experts all have the same opinion;
(c) It is not necessary to have more than one expert in the same area;
(d) Allowing more than one expert in the same area will unduly lengthen the trial, and increase trial preparation costs; and
(e) Allowing more than one expert could confuse the jury.
[3] The Defendant resists this limit on his right to call up to three expert witnesses, and advised that he will be calling two, not three experts in emergency medicine: One who is an academic, and the other who is a practitioner.
[4] The Defendant submitted that:
(a) Because he will be calling fewer than three expert witnesses in the trial, there is no basis for imposing a limit on him. He is well within the Evidence Act limitation.
(b) Although the conclusion of both of his experts is the same, their qualifications are not: one is primarily an academic and the other is primarily a practitioner. They will be examined differently, one from the other.
(c) Depending on how the Plaintiff’s case develops, he may ultimately only call one of his experts; he should not have to commit to that at this stage of the proceeding.
(d) The leading of evidence from both of the Defence experts will not involve any significant lengthening of the trial.
[5] The Plaintiff relies on case law developed in regard to Section 12 of the Evidence Act:
Where it is intended by a party to examine as witnesses persons entitled, according to the law or practice, to give opinion evidence, not more than three of such witnesses may be called upon either side without leave of the judge or other person presiding.
[6] All of the cases provided were cases where parties sought leave to call more than three experts. The following principles emerge:
Longer trials caused by calling unnecessary experts use up scarce resources and deny early trials to other litigants. Where the proposed number of experts to be called exceeds three, and it is not necessary for a party to call all of its medical experts in order to fairly present its case, leave to call more than three will be denied.
Gorman v. Powell [2006] O.J. No. 4233.
Where a party seeks to call more than three witnesses at the trial, and there is no need to call more than one in any given issue, then leave will be denied.
Goodwin (Litigation guardian of) v. Olupona [2010] O.J. No. 3919.
Simply because an expert has authored a report that complies with the requirements under theRules of Civil Procedure, does not automatically entitle a party to call that individual at trial. The evidence must be necessary and not repetitive of other testimony from other experts.
Hoang (Litigation guardian of) v. Vicentini [2012] O.J. No. 810.
[7] The court does have discretion to exclude otherwise admissible evidence. The test is not that set out in Section 12 of the Evidence Act, but rather is whether the probative value of the evidence is outweighed by its prejudicial effect.
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Khan/Yousaf and Dominion [+] Arbitration, 2015-11-17, Reg 403/96. Motion FSCO 4694. https://www5.fsco.gov.on.ca/AD/4694
The Applicants have filed a motion requesting an interim Order for funding of the catastrophic (“CAT”) assessment rebuttal reports, dated November 17, 2004 (“the assessments”) for both Applicants in the amount of $26,352.00 each and their expenses of the motion.
I frame the issues in this motion as follows, taking into consideration the parties’ respective descriptions of the issues:
- Is either of the Applicants entitled to interim benefits or interim expenses pursuant to subsection 279(4.1) or subsection 282(1.1) of the Insurance Act?
- Should the Applicants be permitted to have the reports entered into evidence, in their entirety, at the arbitration hearing?
- Are the Applicants entitled to their expenses of the motion?
Result:
- The Applicants are not entitled to interim benefits or interim expenses.
- The question of whether or which of the assessments dated November 17, 2014 should be admitted into evidence at the arbitration is best left to the hearing arbitrator.
- There is no Order as to expenses at this time.
Are the Applicants entitled to interim benefits or interim expenses?
Background
On July 9, 2012 an OCF-18 treatment plan for CAT impairment determination evaluations, completed by West Side Diagnostics in the amount of $26,352.00 and an OCF-19, completed by Dr. Nguyen, chiropractor, was submitted to Dominion, presumably for both Applicants.
Dominion denied the OCF-18 and arranged for a CAT assessment for both of the Applicants. The report of North York Rehabilitation Centre, dated January 3, 2013, regarding Mr. Khan, found him to be not catastrophically impaired.[3] The report contained assessments by an orthopaedic surgeon, a psychologist and an occupational therapist, as well as a Dr. Platnick who described himself as physician. I assume a similar assessment was done of Ms. Yousef with the same result. I was not provided with a copy of that report.