Author Archives: Admin4

http://canlii.ca/t/1q596

[1]            In the course of this jury trial I ruled that Dr. Frank Lipson, who had conducted a defence medical of the plaintiff, not be permitted to testify as an expert witness on behalf of the defence. Dr. Lipson had testified that a medical report purportedly signed by him had not been signed by him.  He stated that his signature stamp had been affixed to the report without his authority by an individual at Riverfront Medical Evaluations Limited (Riverfront) the company who had retained him to conduct the defence medical. […]

[2]            I have deliberated for a very long time before delivering these reasons. Although the action out of which the problem arose has long been concluded, this case raises vexing issues as to what role may be properly played by organizations such as Riverfront in the formulation of an expert witness’ opinion.

[43]        Twenty percent of their physicians conduct their assessments off site in which case the physicians will prepare their reports and send it to Riverfront by fax or other electronic means.  Riverfront performs its quality control function and sends the report to the physician for comments if required.  After consultation with the physician, the report will be prepared on Riverfront’s letterhead and signed by the physician or as in the case at bar a signature stamp is affixed to the report, which is sent to the referring client.

[44]        In many cases Riverfront has a signature stamp of the doctor, which the doctor authorizes them in writing to use. Dr. Levy produced a letter dated January 5, 2004 in which Dr. Lipson authorized Riverfront to utilize a signature stamp/electronic signature when issuing assessment reports – “when I am unable to directly provide my signature”.  The authorization provides that signature stamp would only be used “once I have approved the final copy of my report”.

[88]        It is stating the obvious that an expert’s report delivered for the purpose of compliance with the Rules of Civil Procedure and the Evidence Act is an extremely important document. Anyone involved in the preparation of such reports must know that courts place a very strong reliance on the contents of these reports and that the proper administration of justice demands that these reports accurately reflect the opinion of the expert who has written them. The requirement in the Rules of Civil Procedure and the Evidence Act that the expert sign the report is intended to provide assurance that the statements in the report are those of the expert.

[100]   Expert witnesses play a vital role in proceedings before the courts both in civil and in criminal matters. In personal injury actions in particular, the evidence of the expert witness may be the determining factor in the resolution of the plaintiff’s claim In the case of health practitioners, section 52 of the Evidence Act provides under certain conditions, the report may be filed in place of the viva voce evidence of the health practitioners. The court is entitled to assume that the report represents the impartial opinion of the expert.

[101]    In my view Riverfront in this case, went far beyond what can be considered a proper “quality control” function. While I am not prepared to find that they were motivated by a desire to assist the defendant, nonetheless I find their actions constituted an unwarranted and undesirable interference with the proper function of an expert witness.

[102]   The function of an expert witness is to provide an independent and unbiased opinion for the assistance of the court. An expert witness’ evidence should be and should be seen to be the independent product of the expert uninfluenced as to form and content by the exigencies of litigation.[2]  This principle has often been cited with approval in our courts, and has been considered a factor to be considered in asessing the weight to be given to the expert’s testimony.  It has occasionally been treated as the basis for the disqualification of the witness entirely.[3]

[103]   In my view any activity that may tend to detract from this all-important objective diminishes the integrity of the litigation and trial process and should be met with appropriate sanctions designed to send a clear message that such conduct will not be tolerated.

http://www.canlii.org/en/on/onsc/doc/2014/2014onsc356/2014onsc356.html

[1]     State Farm seeks leave to appeal the decision of Lococo J. 2013 ONSC 2941 (CanLII), (2013 ONSC 2941)  dismissing the motion of the Applicant seeking to have the claims of the Plaintiffs, for punitive and aggravated damages only, declared a nullity. For the reasons that  follow I would dismiss this motion.                       

Backgound:

[2]        Future Health Inc. was in the business of providing treatment plans and health care services to patients injured in motor vehicle accidents.  The patients were covered by automobile insurance policies issued by general insurance companies, including State Farm Mutual Automobile Insurance Company of Canada.

[5]           In this action, the Plaintiff has claimed damages for intentional interference with economic relations, inducing breach of contract, bad faith and conspiracy.  The Plaintiff also seeks aggravated damages as well as punitive and exemplary damages against State Farm.

[24]         The motion before Lococo J. was certainly important to the parties as it was an attempt to eliminate a major part of the claims advanced by the Plaintiff. That however, is not the test under the rule. The onus is on the Applicant to persuade me that the issue decided by Lococo J. is of such public importance to the development of the law and the administration of justice that leave to appeal should be granted. The Applicant has not so persuaded me. The law under Rule 21 has been established for decades. There is no reason to revisit it. The decision of the motions judge was a simple case of him properly exercising his discretion under a rule which has a long, well established history, and is used only to dismiss cases where it is plain and obvious they cannot succeed. That is not this case.

http://canlii.ca/t/g2dfc

[4]  ….The only witness offered by the defendant was one overused expert who submitted a report in which he offered his opinion on matters outside the expertise of a physician together with an inaccurate curriculum vitae. The witness lost his temper during reasonable cross-examination and made a bad impression.

[6]….Mediation took place on November 14, but the defendant’s insurer stood firm. I infer that it took a six-day trial with all its attendant risk for the sake of $50,000. This is a litigation strategy that the defendant could well afford, but the plaintiff could not. I infer that the insurance company conducted itself this way in the hopes of intimidating the plaintiff and deterring other plaintiffs who have meritorious cases. It did not attempt to settle the action expeditiously as required by s.258.5 of the Insurance Act.

https://www5.fsco.gov.on.ca/AD/4048

I prefer the testimony and ratings of D.B. provided by Dr. L. Becker to those of Dr. Paitich. Dr. L. Becker’s findings were consistent with other reports and were the result of detailed observations. Dr. Paitich made no actual measurements and found that D.B. could stand independently although she had one hand on the examining table for support and was vertical for a very short time. The foundation of Dr. Paitich’s WPI rating was flawed in that he refused to assess D.B. as she appeared in his office but instead, persisted in treating her as an amputee, which is not in keeping with the Guides. He compounded his error by not rating D.B.’s chronic neck, shoulders and low back pain, her scarring and skin condition, her hernia and daily use of opioid medications…

…Dr. Paitich calculated SOMA’s overall WPI rating for D.B. In Dr. Paitich’s opinion, D.B. does not qualify for the catastrophic impairment designation. He assigned her a WPI rating of 35%. Dr. Reznek found no impairment in his mental/behavioural evaluation while Ms. Freedman, the occupational therapist, rated it a mild impairment. Dr. Paitich determined 10% based on the report of Ms. Freedman, the occupational therapist. By choosing 10%, he appeared to have rejected his own psychiatrist’s opinion about D.B.’s impairments. Dr. Paitich disagreed and testified that 10% was a compromise between the two findings.

…Dr. Paitich applied no objective tests to rate D.B.’s mobility. He accepted that she used a walker indoors but he never asked her how far she used it. Ms. Freedman, the occupational therapist, was far more specific in her examination and noted D.B.’s inability to adopt a single leg stance, tandem gait, and her inability to stand independently. D.B. was not asked by Dr. Paitich about the walker and there was no demonstration by D.B. of her mobility using a single point cane. Instead, Dr. Paitich chose to treat D.B. as analogous to an amputee with a 28% WPI rating. There also was no acknowledgement of D.B.’s functional limitations in her knees, neck, shoulders and back which should have been rated. However, the Guides speak to evaluating impairment of different body systems by rating the scores for each system independently.[25]…

…Dr. Harold Becker has also answered the unspoken question as to why Omega devoted so much care to assessing and calculating D.B.’s discrete impairments if the ultimate conclusion is that she is wheelchair dependent. The answer is that the constellation of D.B.’s impairments, both physical and mental/behavioural, created a perfect storm of impairment which resulted in her wheelchair dependency. For that reason, each of her discrete impairments must be evaluated and appreciated. I do not agree with Economical’s position that D.B. must be either paraplegic or quadriplegic to qualify as wheelchair dependent. No such requirement can be found in the Guides…

…It is understandable that D.B. is reluctant to consent to a lower limb amputation when she is uncertain about the result. I attach no weight to the WPI rating assigned by SOMA, which was based on an amputation D.B. has not had. Dr. Paitich also insisted that D.B. could walk with a single point cane and an air cast but I was presented with no evidence to support that assertion.

https://www5.fsco.gov.on.ca/AD/4047

Ms. J. has particularly taken exception to Dr. Hines’ role in the assessment process, claiming that his psychiatric assessment was flawed and that he overlooked key elements of potential evidence. Dr. Hines is also said to have made assumptions about Ms. J.’s recovery that stood in stark contrast to the opinions of her treating health professionals.

In other words, Dr. Hines essentially missed the boat on a woman who had severely disabling depressive symptoms to the degree that she became a suicide risk. She could not on any reasonable examination of her treatment records be said to be in remission, either with regard to her substance abuse or her depression.

I accept Ms. J.’s submissions that Dr. Ahmed, her treating psychiatrist, was better placed to evaluate Ms. J.’s progress or lack of progress over a lengthy period of time, and I would accept that his view of Ms. J.’s psychological state will carry more weight than any brief snapshot by a non-treating assessor, even without the alleged misapprehension by Dr. Hines of the underlying conditions.

Rebuttal reports became important with the paring back of the DACs and other consumer protection inventions that had been intended to provide some degree of objectivity to the assessment and determination process.

With the demise of DACs, the final determination as to entitlement was made by the Insurer, presumably on the advice and with the assistance of its own assessors. Most of these assessors were drawn from an informal roster of professionals who gave their professional opinions to litigants. Not a few of these were characterized as “hired guns” by those disagreeing with an assessor’s opinion.

Thus, when an insurer’s expert conducted an insurer’s examination on a claimant, it made sense that the claimant could commission his or her own report to address the shortcomings, if any, of the insurer’s experts’ analysis…

…In the context of this interim benefit hearing, barring unforeseen new evidence to support Dr. Hines’ opinion of remission, I believe that an arbitrator hearing all the evidence would be inclined to ascribe any evidence of remission to misinformation, wishful reporting or a minor short-term variation of a chronic condition. Indeed, Dr. Ahmed, Ms. J.’s treating psychiatrist, is unequivocal: Ms. J. is not suited to any work.

While many issues which were the subject of I.E’s and rebuttal reports verged on the trivial, others were not. In Ms. J.’s case, she applied for and was denied recognition of catastrophic impairment arising from the accident. Catastrophic impairment would allow her to access further attendant care, housekeeping and medical expenses so that her long-term care needs could be properly addressed.

Ms. J.’s accident happened in 2007. In the absence of a catastrophic designation, access to attendant care and housekeeping benefits would have ended in 2009. Likewise her access to medical benefits would be cut off in 2017. Consequently, access to the catastrophic designation is critical to the availability of what she sees as critical care.

Given Dr. Hines’ apparent misinformation about remission of symptoms, GAF score and psychosocial issues, the importance of a credible rebuttal is critical to Ms. J..

Having a rebuttal report available can assist an insurer in making a fair determination and, to an arbitrator hearing this matter, should streamline the process by drawing together and placing in a medical context the alleged shortcomings of the insurer’s medical legal reports.

In short, a rebuttal report in Ms. J.’s case would be not only reasonable but would facilitate the claims process. Consequently, if there is a basis to fund the report, it should be funded.

…In the context of this interim benefit hearing, barring unforeseen new evidence to support Dr. Hines’ opinion of remission, I believe that an arbitrator hearing all the evidence would be inclined to ascribe any evidence of remission to misinformation, wishful reporting or a minor short-term variation of a chronic condition. Indeed, Dr. Ahmed, Ms. J.’s treating psychiatrist, is unequivocal: Ms. J. is not suited to any work.

While many issues which were the subject of I.E’s and rebuttal reports verged on the trivial, others were not. In Ms. J.’s case, she applied for and was denied recognition of catastrophic impairment arising from the accident. Catastrophic impairment would allow her to access further attendant care, housekeeping and medical expenses so that her long-term care needs could be properly addressed.

Ms. J.’s accident happened in 2007. In the absence of a catastrophic designation, access to attendant care and housekeeping benefits would have ended in 2009. Likewise her access to medical benefits would be cut off in 2017. Consequently, access to the catastrophic designation is critical to the availability of what she sees as critical care

…In the context of this interim benefit hearing, barring unforeseen new evidence to support Dr. Hines’ opinion of remission, I believe that an arbitrator hearing all the evidence would be inclined to ascribe any evidence of remission to misinformation, wishful reporting or a minor short-term variation of a chronic condition. Indeed, Dr. Ahmed, Ms. J.’s treating psychiatrist, is unequivocal: Ms. J. is not suited to any work.

While many issues which were the subject of I.E’s and rebuttal reports verged on the trivial, others were not. In Ms. J.’s case, she applied for and was denied recognition of catastrophic impairment arising from the accident. Catastrophic impairment would allow her to access further attendant care, housekeeping and medical expenses so that her long-term care needs could be properly addressed.

Ms. J.’s accident happened in 2007. In the absence of a catastrophic designation, access to attendant care and housekeeping benefits would have ended in 2009. Likewise her access to medical benefits would be cut off in 2017. Consequently, access to the catastrophic designation is critical to the availability of what she sees as critical care..

https://members.cpo.on.ca/members_search/show/1012?section=discipline#ui-tabs-12

[The following was placed on the Public Register on March 6, 2013]

The Inquires Reports and Complaints Committee referred the following specified allegation to the Discipline Committee:

Dr. Richard Marlin committed an act of professional misconduct in that the
governing body of a health profession in a jurisdiction other than Ontario has
found that Dr. Marlin committed an act of professional misconduct that would be
an act of professional misconduct as defined in the regulations, as per s.51(1)(b)
of the Health Professional Procedural Code, being Schedule 2 to the Regulated
Health Professions Act, 1991, S.O. 1991, c. 18.

Specifically, the Hearing Tribunal of the College of Alberta Psychologists found that Dr. Marlin:
(i) Conducted a psychometric test with a client when the client was averse to doing so;
(ii) Wrote to the client’s other care providers without having clear consent from the client to do so;
(iii) Limited access to the client’s family physician and other specialists, contrary to the client’s choice;
(iv) Failed to create a relationship in which the respect and dignity of the client was maintained;
(v) Conducted a psychometric test when the client was under duress/emotional stress; and,
(vi) Failed to ensure that there were sufficient professional attendances directly with the client when the pre-existing history and conditions of the client mandated a higher level of interaction than once per month.

A hearing will take place at 10:00 a.m. on Wednesday, September 4, 2013 at Atchison & Denman Court Reporting Services, 155 University Avenue, Suite 302, Toronto, Ontario M5H 3B7.

http://canlii.ca/t/232nn

[59]         Dr. Richard Marlin was qualified at trial as an expert psychologist with respect to the diagnosis and treatment of minor brain injuries.

 [60]         It must be born in mind that Dr. Marlin did not meet with and examine Mr. Nagle.  He did not review the neuropsychological tests data upon which Dr. Mills formed her opinion nor did he attend at the trial to listen to the testimony of Mr. Nagle, the lay witnesses nor the other medical experts.  He did not engage in any psychotherapeutic sessions with Mr. Nagle.

 [61]         Dr. Marlin agreed that a mild traumatic brain injury was suffered by Mr. Nagle at the time of the accident.  He testified “the brain was not so traumatized that it was not unable to remember what happened ”.  However, he is of the view that none of the complaints which Mr. Nagle and Dr. Leckey associate with the mild traumatic brain injury have anything to do with it but are rather due to psychological factors which are treatable and stem from the other injuries sustained by Mr. Nagle.  Dr. Marlin’s report is focused mainly upon refuting the diagnosis that Mr. Nagle had suffered a mild traumatic brain injury as a consequence of the accident.  In his report and on direct examination, Dr. Marlin did not retract his criticisms of the medical evidence.  However, on cross-examination he agreed with the diagnosis of a mild traumatic brain injury.  In my opinion this diminished Dr. Marlin’s credibility as does the following testimony which is laced with sarcasm.

[69]         However as noted at trial, Dr. Marlin contradicted his report and conceded that it is possible that Mr. Nagle’s current symptoms are caused by the mild traumatic brain injury suffered by Mr. Nagle as the result of the accident.  For these reasons it is without hesitation that I elect to accept the evidence of Dr. Leckey and Dr. Mills over that of Dr. Marlin.

http://canlii.ca/t/5gkd

[18]   …On 29 May 2002, two psychologists, Dr. Marlin and Dr. Mok both of Odyssey Health Services, examined Hedstrom.  They concluded that Hedstrom was not totally disabled with respect to gainful employment.  In a report to Manulife made on the same date, Odyssey opined that no objectively demonstrable or definable underlying disease or pathology had been identified to account for Hedstrom’s symptoms; that Hedstrom showed no evidence of any underlying psychopathology or psychological disorder to account for his symptoms; and that, the “presence of significant variations in the available history and reported events”, coupled with the other factors, led to their conclusion that Hedstrom was not totally disabled.

[19]   Counsel for Hedstrom objected strenuously that the Odyssey report was inadmissible on the application.  I would have little difficulty acceding to the objection if Manulife was attempting to tender the report as opinion evidence at trial.  While the authors are qualified to express opinions about whether the testing disclosed any evidence of psychological disorder capable of explaining full disability, they went well beyond that function.  In expressing opinions on medical matters far outside their expertise, as well as on the truthfulness and reliability of Hedstrom, the authors travelled well outside the permissible bounds of expert evidence.

[20]   But the report was not prepared for admission into evidence as an expert opinion and Manulife seeks to rely on it for a different more limited purpose.  Odyssey prepared the report to assist the claims-handler who had requested it.  Manulife then relied on the report in deciding to terminate benefits.  It became part of the claims file and is properly before the court to be considered in assessing the relative strengths and weaknesses of the legal positions of the parties.

http://www.fsco.gov.on.ca/en/drs/counselforum/Pages/2011-03-25.aspx

http://canlii.ca/t/g06vv

[11]           In my view, the doctrine of merger should apply in this case such that the claim for conspiracy cannot stand together with the claim in tort for fraudulent misrepresentation.  Applying the unassailable logic of Lord Denning in the English case of Ward v Lewis, [1955] 1 All E.R. 55 (C.A.), at 56, an allegation of a prior conspiracy to commit a tort adds nothing to the pleading.  This is not a case where conspiracy is pleaded in the alternative because it is uncertain to the plaintiff whether the benefit claims were submitted or the charges incurred.  If it were, then a claim for unjust enrichment could hardly be supported.  There is nothing that needs to be left to the trial judge here; the claim in conspiracy adds nothing to the pleading as constituted.  It is redundant.  Applying the doctrine of merger, therefore, the claim in conspiracy cannot be maintained and must be struck.

[12]           I am unable to agree with the defendants that the pleading does not disclose a cause of action in unjust enrichment.  The alleged enrichment is plain to see, if not plainly worded: the defendants received a benefit to which they were not entitled, namely fees for approved services. The corresponding deprivation to the plaintiffs was the payment of those fees.  The absence of a juristic reason is not specifically pleaded, but a generous reading of the claim makes it clear that the entire scheme alleged to have been operated by the defendants was unlawful.  I find that paragraphs 17, 18 and 19 of the claim, read in context, are sufficient to constitute the third element of a cause of action in unjust enrichment.

[13]           I agree with the defendants that the allegations as against the personal defendants must be struck.  There are simply insufficient facts pleaded of alleged wrongdoings by the personal defendants against the plaintiffs directly to support any cause of action against them personally.  I acknowledge that directors and officers of corporations may be held personally liable for certain tortious acts; however, standing alone, the allegations in paragraphs 17 and 19 do not support a cause of action against these defendants individually.  Greater care must be taken to set out with some specificity the acts which would expose the personal defendants to liability to the plaintiffs.  The conduct identified in paragraph 17 may indeed be the kind which the law may frown upon and which may attract scrutiny by licensing authorities, but setting up a corporation for an improper purpose is not a cause of action known at law.  The claims against the personal defendants are therefore struck.

[14]           I find that the statement of claim does set out sufficient facts to found a cause of action in fraudulent and negligent misrepresentation.  It is not plain and obvious that the claims would fail. The law recognizes both torts being advanced.  A generous and liberal reading of the pleading allows one to identify the essential elements of both torts. In respect of fraudulent misrepresentation, the representations are the information contained on the submitted OCF-22 forms; they are alleged to be false or to contain false information (paragraph 10); paragraph 10 speaks to the defendants intentions and their knowledge; paragraphs 13 and 14 set out what the submitted forms induced the plaintiffs to do, with the attached schedule to the claim providing specific references to claim numbers.  In respect of the fifth element from the Corfax case, it was not, practically speaking, open to the plaintiff to void any contract with the defendants.  As an insurer with responsibilities to its insured under the regulations of the Insurance Act, R.S.O. 1990, c.I.8, the course open to it on any particular submitted claim was merely to deny the  benefit or service.

[15]           I also find that the allegations of fraud are sufficiently pleaded.  The description of the acts taken by the defendants provides sufficient detail of the nature of the alleged fraud: that of submitting insurance claim forms containing incorrect information, falsifications or bogus claims.

[16]           I find that the pleading discloses a reasonable cause of action in negligent misrepresentation and negligence. The essential elements of those torts pleaded are found at paragraphs 20 and 21. The duty of care owed by the defendants to the plaintiffs, although not specifically set out, may be gleaned from a reading of the claim in its entirety.  The defendants, as assessment centres for individuals with injuries arising out of motor vehicle accidents, would be submitting authorized forms to the plaintiffs as insurer for those individuals.  The duty to provide honest and reliable information to the insurer can be viewed as inherent to that relationship.  A degree of reliance on the assessment centre to submit legitimate claims on behalf of injured persons was to be expected; indeed, the nature and extent of the reliance by insurer is set out clearly at paragraphs 8 and 9 of the claim.