…Judges have been refusing to allow plaintiff lawyers in the personal injury (auto insurance) context to adduce prior adverse judicial findings of bias as a means to challenge insurer medico-legal defence experts. The consequent complete failure in terms of oversight and accountability as it relates to expert evidence in this context has recently been chronicled in a series of investigative reports in the mainstream press (The Globe & Mail and National Post, for example; see below). It is ironic that when investigative reporters want to get a handle on this or that expert’s propensity for bias, they matter-of-factly look to prior judicial findings of partisanship as their barometer. Yet, stunningly, judges are refusing to take the same common sense approach to this issue. It beggars belief that what the Committee describes as “good practice” is seen by the judiciary as so utterly improper that “seeking to introduce” prior judicial findings of bias can now attract punishment in the form of extra costs for wasting the courts’ time:

“Second, there was the fact that Plaintiff’s counsel sought to cross-examine Dr. Rezneck on findings made about his reports in previous cases. I ruled that cross-examining an expert about judicial findings in previous cases where that expert had testified was not within the scope of proper cross-examination.  The argument on this ruling, and the consideration of the cases that counsel for the Plaintiff filed consumed a couple of hours of court time.  Raising this issue unnecessarily lengthened the trial time, and it should also be considered in a minor way in assessing the costs.” (Sharma v Stewart, 2017, ONSC)

When judges refuse to allow prior adverse judicial comments to be adduced as a means to challenge expert impartiality, they are conflating a judicial expectation of impartiality (in accordance with the Form 53) with a judicial presumption of impartiality. But as Master Short pointed out, without enforcement of the Form 53 promise such a presumption is unsafe. Taking for granted that long-time partisan experts will honour their Form 53 promise to be impartial is judicial folly of the worst sort.

Consumer Letter To Rules Committee Feb 22 2018

The insurers and their legal representatives are obviously unafraid of any consequences when they parade the partisan ‘expert’ in front of the court. The experts themselves have no fear since they are self-regulated at their Colleges and are rarely sanctioned in any meaningful way when they harm innocent accident victims. It’s clear to victims that it is only they who are expected to be truthful in their duty to the court while the behavior of the insurer ‘hired gun’ medical expert is given the free pass to cause harm over and over again.

What will you do to restore confidence in our justice system when the proliferation of “hired gun” experts tainting cases continues to worsen despite the Form 53.03 promise to be impartial? Will the Committee help judges improve their gatekeeping of experts by setting out the appropriate time to allow lawyers to challenge medico-legal experts with prior judicial warnings of bias and unacceptable testimony?

Shouldn’t the Committee correct the belief that seeking to adduce prior judicial rebukes for bias is a waste of the court’s time and establish that this is something that deserves punishment in the form of costs and make an effort to block the future testimony of the unacceptable expert? Not doing so has made the Ontario Civil Justice system a place where juries are misled and an unsafe place for vulnerable litigants while it has become a reliable and very profitable adventure for insurers and their medical experts.

Letter to Civil Rules Committee September 5 2017

Not a solution to protect Ontario’s auto insurance medical assessors by anonomizing them by way of reducing the name of the professional paid ‘expert’ to mere initials.

Letter to Director of Arbitrations FSCO re Dr. T. Feb 23 2017

Response from Tom Golfetto, Executive Director, Automobile Insurance Div., FSCO

D.F. and Wawanesa corrected