http://canlii.ca/t/gpqm3
Positions of the Parties
[4] The plaintiff’s position is two-fold. Firstly, the plaintiff submits that the defendant is not entitled to an independent medical examination by a psychiatrist as the plaintiff was never treated by a psychiatrist and because there is insufficient evidence of why an assessment by a psychiatrist is warranted. The plaintiff asks that the motion be dismissed. Secondly, the plaintiff submits that Dr. Monte Bail, the psychiatrist chosen by the defendants, has demonstrated such clear and definitive defense bias in many previous cases that the court should decline to make any order allowing any independent medical examination by Dr. Monte Bail in particular.
[5] The defendants’ position is that they can decide what speciality of medical doctor they wish to have examine the plaintiff. The defendants submit that to properly defend the claim, they need to provide opinion evidence as to the plaintiff’s depression and mental health–related injuries from a psychiatrist and that they can select any qualified psychiatrist of their choice. Dr. Monte Bail is the psychiatrist of choice selected by Mr. Todd McCarthy, trial counsel for the defendants, in spite of objections raised by the plaintiff as to previous findings that Dr. Bail was not credible and failed to honour his written undertaking to the court in Rule 4.1.01. The defendants ask that the motion be granted. A tentative date for the examination by Dr. Bail has been booked for May 30, 2016.
[26] While it is unnecessary for me to decide the second issue of the relief requested by the plaintiff—namely, whether to not allow Dr. Monte Bail to conduct a defense psychiatric examination due to his failure to adhere to the principles of fairness, objectiveness and impartiality and his defense bias—I make the following observations and comments by way of obiter dicta. I find the plaintiff’s argument on this issue compelling. Rule 4.1.01 makes it clear that an expert’s duty to the court prevails over any obligation owed by the expert to a party. The Supreme Court of Canada has held that an expert witness who is unable or unwilling to comply is not qualified to give expert opinion evidence and should not be permitted to do so. (See White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (CanLII), [2015] 2 S.C.R. 182).
[27] When an expert and that expert’s report is notably partisan, acts as judge and jury, advocates for the insurer rather than being impartial, is not credible, and fails to honour the undertaking to the court to be fair, objective, and non-partisan, it directly affects a party’s right to a fair trial.
[28] Kane J. in Bruff-Murphy v. Gunawardena, 2016 ONSC 7 (CanLII), held that Dr. Bail was not a credible witness and that he failed to honour his obligation and written undertaking to be fair, objective and non-partisan pursuant to Rule 4.1.01 (see paras. 53-125). He did not meet the requirements under Rule 53.03. Justice Kane found that Dr. Bail’s report and testimony was not of a psychiatric nature but was presented under the guise of expert medical testimony and the common initial presumption that a member of the medical profession will be objective and tell the truth. He further held that the purpose of Rule 4.1.01 is to prohibit and prevent such testimony in the guise of an expert, and that “Dr. Bail undertook and thereby promised to not do what he did in front of this jury.” Importantly, Justice Kane held that, “I will not qualify witnesses as experts in the future whose reports present an approach similar to that of Dr. Bail in this case.”
[29] Additional critical findings in relation to Dr. Bail can be found in Gordon v. Greig (2007), 46 C.C.L.T. (3d) 212 (Ont. S.C.J.), at paras. 43-48;Sidhu v. State Farm Mutual Automobile Insurance Co., 2014 CarswellOnt 18595 (F.S.C.O. Arb.), at para. 68; Sohi v. ING Insurance Co. of Canada, 2004 CarswellOnt 3236 (F.S.C.O. Arb.), at paras. 35-41; Gabremichael v. Zurich Insurance Co., 1999 CarswellOnt 4480 (F.S.C.O. Arb.), at para. 132; and Rocca v. AXA Insurance (Canada), 1999 CarswellOnt 5506 (F.S.C.O. Arb.), at para. 66.
[30] The recent changes to the Rules to require experts to undertake to the court to be fair, objective, and non-partisan has done little if anything to curb the use of certain favoured biased “hired guns” by the parties. The consequences of an expert signing the undertaking and failing to honour their obligation in their expert report or evidence is simply the rebuke of the court. This does nothing to prevent that same expert from being further retained and repeating the process over again in other trials as long as trial counsel are willing to retain them.
[31] Rule 33.02 provides that the court shall name the health practitioner by whom the independent medical examination is to be conducted. It could be argued that the court, in the exercise of its discretion, should therefore consider and determine in appropriate cases whether or not the proposed named health practitioner is biased in favour of a party on the balance of probabilities and therefore fails to qualify as an expert under Rule 4.1.01. The court’s discretion would therefore include the discretion not to name a particular health practitioner if that health practicioner fails to meet the criteria set out inRule 4.1.01 on the basis of bias. While it would be uncommon to find an expert biased and impartial, such an expert so found should not be allowed to have any role in the court process.
[32] Considering the highly intrusive nature of these independent medical assessments, and the serious issue of ensuring a fair trial, the plaintiff’s argument to deny the right to have an expert that has been found to be biased conduct the assessment in the first place is worthy of consideration in appropriate circumstances considering the potential for a miscarriage of justice that can be caused by such an expert biased in favour of one party, particularly in front of a jury.
Conclusion
[33] As the defendants have failed to establish that they are entitled to an independent medical examination to be conducted by a psychiatrist, the motion is dismissed. Costs of the motion are reserved.
[34] If counsel are unable to agree on costs, I will receive brief written submissions on or before May 31, 2016. Thereafter, I will determine the issue of costs based on the materials filed.
Also see: http://www.fairassociation.ca/wp-content/uploads/2016/01/Bail-Monte-Psychiatrist.pdf
