The Parties Positions
[5] The defence position is that Dr. Ogilvie-Harris’ report duplicates the opinions provided by Dr. Luba and that the inclusion of a second orthopedic surgeon, whose conclusions are the same as the first, is not in the interest of a speedy and just resolution of this matter. Further, the defence argued that Dr. Ogilvie-Harris has been found to have blurred the boundary between acting as an expert witness and acting as an advocate in a number of court decisions. Finally, the defence refers to the fact that in responding to the plaintiff’s case, it only has one expert and that allowing the plaintiff to introduce evidence from two orthopedic surgeons would unfairly prejudice the fairness of the trial for the defendants.
[6] The plaintiff in response takes the position that while there is some overlap between the evidence of Dr. Luba and Ogilvie-Harris, there are also a number of important differences which justifies allowing both physicians to testify. They also argue that to exclude Dr. Ogilvie-Harris, would leave the defence with the only rule 53 expert testifying at trial. It is argued that this would unfairly prejudice the plaintiff’s ability to present its case at trial. They refer to the fact that Dr. Ogilvie-Harris has challenged the opinion of the defence Orthopedic Surgeon, Dr. Finkelstein, whereas Dr. Luba as a participant expert has not “entered the debate”.
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Wray v. Pereira, 2018 ONSC 4621 (CanLII), <http://canlii.ca/t/ht8z5
1] This action arises out of a motor vehicle accident which occurred on December 31, 2012. The case is being tried before a jury. The plaintiff alleges that he suffered a serious orthopedic injury to his right knee as a result of the motor vehicle accident. The evidence at trial indicates that the plaintiff had a significant pre-existing arthritic condition prior to the accident. The plaintiff asserts that he was asymptomatic prior to the accident, but that the arthritic condition has been rendered symptomatic as a result of the accident.
[2] The plaintiff has previously called two orthopedic surgeons who have given opinion evidence. This evidence links the plaintiff’s current condition to the accident. The defence now wishes to call Dr. Joel Finkelstein as a medical expert. It is anticipated that Dr. Finkelstein will give an opinion that the plaintiff suffered a knee strain as a result of the accident which resolved within six to eight weeks. Dr. Finkelstein is expected to give an opinion that the plaintiff’s current condition is the result of his pre-existing arthritic condition.
[3] A voir dire was held to determine the admissibility of Dr. Finkelstein’s evidence. The plaintiff objected to the admission of Dr. Finkelstein’s evidence on the basis that he has relied on inadmissible evidence in reaching his opinions. Specifically the plaintiff objects on the basis that Dr. Finkelstein has reviewed a surveillance video taken by the defendant’s investigator. This is referenced in his report. In a previous ruling I held that the surveillance video could not be used for substantive purposes in this action in large part based on the defendant’s failure to comply with their disclosure obligations.
[4] The defence position is that it will suffer serious prejudice if Dr. Finkelstein is not allowed to testify. The defence argues that any prejudice can be minimized by requiring Dr. Finkelstein not to make any reference to the surveillance evidence in the course of his evidence. In response to this argument, the plaintiff states that there will still be significant prejudice because they will not be in a position to cross-examine Dr. Finkelstein about some of the evidence which he has relied upon in reaching his opinion. To do so would inevitably bring the existence of the surveillance, which has been held to be inadmissible, to the attention of the jury. The plaintiff therefore reiterates that it will suffer prejudice which cannot be remedied if Dr. Finkelstein is allowed to testify.
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Wray v. Pereira, 2018 ONSC 4623 (CanLII), <http://canlii.ca/t/ht8z7
[18] In the present case there would not appear to be any basis to exclude the surveillance evidence for purposes of impeachment. This is based on the fact that the defendants did disclose the existence of the surveillance report in their Affidavit of Documents and presumably would have disclosed the particulars of the surveillance had they been asked about this at examination for discovery.
[19] However, by failing to produce the surveillance video when they were required to do so, I have concluded that there will be significant prejudice to the plaintiff if the evidence is used substantively by the defence. The plaintiff has not had the benefit of considering the surveillance in the context of any pre-trial settlement. This includes consideration of the surveillance video in the preparation and delivery of any rule 49 offers. In addition, given that the defence motion was not brought until the plaintiff was giving his evidence, the plaintiff is at some disadvantage in planning the most effective strategy for dealing with this evidence in the plaintiff’s examination in chief. The plaintiff also argues that they have been disadvantaged because they have not had an opportunity to obtain responding reports from medical physicians they intend to call at trial. They refer to the fact that there is an order excluding witnesses which prevents them from speaking with these witnesses. I am mindful that there could be an order made to address this situation. For example, I could provide an exception to the order excluding witnesses which would facilitate the preparation of responding reports by the plaintiff’s experts. In any event, it is my understanding that the medical witnesses have in fact been shown a copy of the surveillance video.
[20] However, there are more general concerns about allowing the surveillance evidence in at this point. The defence motion was not brought until after opening statements were made by both parties to the jury and the plaintiff had started to give his evidence in chief. The defence argues that the plaintiff could have brought a motion itself to exclude the surveillance evidence earlier. However, I accept the plaintiff’s position that it was not entirely clear whether the defence intended to introduce the video for substantive purposes. There was no clearly stated position by the defence about their intended use of the video when they delivered the video surveillance to the plaintiff on May 7, 2018. The reason for the plaintiff’s demand for the video surveillance was on the basis that privilege may have been waived by the plaintiff if in fact the video surveillance had been given to Dr. Finkelstein. It is also apparent that the onus to bring a motion for leave under rule 53.08 lies with the party seeking leave to introduce the evidence, which in this case is the defendant.
[21] This is not a situation where an adjournment can cure the potential prejudice to the plaintiff. The trial has commenced. The time for making offers to settle under rule 49 have expired. The parties have committed to their positions in the openings which have been given and much of the plaintiff’s evidence in chief has already been given. Defence counsel has suggested that this problem has been caused as a result of the court’s refusal to grant them the adjournment requested. However, at the time of the adjournment request no reference was made to this issue, and therefore it was not considered by me.
Conclusion
[22] This case bears a number of similarities to the Iannarella decision. There have been clear violations by the defence of their obligations to produce the video surveillance at a much earlier stage of the litigation. As a result of the defence conduct, there is the potential for significant prejudice to the plaintiff due to the defence failure to comply fully and rigorously with its disclosure and production obligations. Granting leave to the defendants under rule 53.08 to use the video surveillance for substantive purposes is not appropriate given the potential for prejudice to the plaintiff. The defendants’ application for leave under rules 30.09 and 53.08 is therefore dismissed. The surveillance evidence may not be used for substantive purposes by the defence.
