COURT OF APPEAL FOR ONTARIO

CITATION: Moore v. Getahun, 2015 ONCA 55

DATE: 20150129

DOCKET: C58338

Laskin, Sharpe and Simmons JJ.A.

BETWEEN

Blake Moore

Respondent

and

Dr.
    Tajedin Getahun
, The Scarborough Hospital  General Division,

Dr. John
    Doe and Jack Doe

Appellant

J. Thomas Curry and Jaan E. Lilles, for the appellant

Paul J. Pape and Joanna Nairn, for the respondent

Matthew Gourlay and Samuel Walker, for the intervener Criminal
    Lawyers Association

Richard Halpern and Brian Cameron, for the intervener Ontario
    Trial Lawyers Association

William D. Black, Jerome R. Morse and John J. Morris,
    for the intervener The Holland Group

John A. Olah and Stephen Libin, for the intervener Canadian
    Defence Lawyers Association

Courtney Raphael, for the intervener Canadian Institute
    of Chartered Business Valuators

Linda R. Rothstein and Jean-Claude Killey, for the intervener
    The Advocates Society

Heard: September 22, 23, 24, 26, 2014

On appeal from the judgment of Justice Janet M. Wilson
    of the Superior Court of Justice, dated January 14, 2014, with reasons reported
    at 2014 ONSC 237.

Sharpe J.A.:

[1]

This appeal raises significant issues in relation to the preparation
    and use of expert reports in the context of a medical malpractice action.

[2]

Following a motorcycle accident, the respondent (plaintiff) was treated
    by the appellant (defendant), a recently qualified orthopedic surgeon, for a
    fracture to his right wrist. The appellant applied a full circumferential cast
    to the respondents wrist and forearm. The respondent suffered permanent damage
    to the muscles in his arm due to compartment syndrome that he alleged was
    caused by the appellants negligence in the application of a full cast.

[3]

The trial judge preferred the evidence of the respondents expert
    witness over that of the appellants expert witnesses and found that the
    application of the full circumferential cast was a breach of the standard of
    care and had caused the compartment syndrome to develop.

[4]

The first and most significant legal issue raised on appeal involves the
    preparation of the written report of one of the appellants expert witnesses.
    The trial judge held that it was improper for counsel to assist an expert
    witness in the preparation of the experts report. That proposition is strongly
    challenged by the appellant and by all of the interveners. The respondent
    concedes that the view expressed by the trial judge is erroneous, but argues
    that her error had no impact on the outcome of the trial.

[5]

The second significant legal issue involves the use of the appellants
    expert witness reports. The reports were not entered into evidence and the
    parties proceeded to call
viva voce
evidence from all expert witnesses.
    The expert reports were, however, made available to the judge as an
aide
    memoire
. In assessing the credibility of the expert witnesses called by the
    appellant, the trial judge took into account what she perceived to be
    contradictions between the experts
viva voce
evidence and the written
    reports. The appellant submits that she erred in doing so. The respondent
    concedes that the trial judge erred, but once again argues that the error was
    harmless.

[6]

The appellant takes issue with several other aspects of the trial
    judges conduct of the trial and with her reasons for judgment.

[7]

For the following reasons, I conclude that the trial judge erred in holding
    that it was unacceptable for counsel to review and discuss the draft expert
    reports. She further erred in using the written expert reports that were
    neither entered into evidence, nor the subject of cross-examination, to
    contradict and discredit aspects of the
viva voce
evidence of the appellants
    expert witnesses. I conclude, however, that these errors did not affect the
    outcome. As no substantial wrong or miscarriage of justice flowed from the
    errors, this court would not be justified in ordering a new trial.

FACTS

[8]

On November 12, 2005, the respondent seriously injured his right wrist
    in a motorcycle accident. He was 21 years old at the time. Paramedics took him
    to the emergency department at Scarborough General Hospital. He was seen by an
    emergency room physician and then by the appellant, who had qualified as an orthopedic
    surgeon a few months earlier. The appellant obtained an X-ray, which confirmed that
    the respondents wrist was fractured. The X-ray revealed two large bone fragments,
    the styloid of the distal radius and the lunate facet, as well as many small
    fragments. The appellant performed a closed reduction, attempting to manually
    realign the bones by manipulating the respondents arm. He had to attempt this
    procedure twice. He then applied a full circumferential plaster cast to the
    respondents wrist and forearm.

[9]

The appellant subsequently ordered a second X-ray, which revealed that the
    closed reduction had only been successful in realigning the radial styloid. The
    other bone fragment, the lunate facet, was displaced and rotated 180 degrees.
    The appellant recommended a surgical reduction together with a possible bone
    graft to repair the injury. In consultation with his father, the respondent
    declined the appellants offer to perform the surgery that evening. He was concerned
    about undergoing a bone graft due to the appellants relative lack of
    experience and the seemingly drastic nature of the procedure. The respondent
    and his father decided to seek a second opinion from another orthopedic surgeon
    they knew, Dr. Orsini, who practiced at a different hospital. The respondent
    understood that the surgery must take place within the week, but was not aware
    of any urgency beyond that.

[10]

The respondent was discharged with oral instructions that he would
    suffer some pain and swelling for up to two or three days after the cast was
    put on, and was directed to return to the hospital if the pain and swelling
    increased beyond that point. He was also provided oral and written instructions
    on cast care, including a pamphlet advising patients to seek medical attention
    in the event of severe swelling and pain, numbness, loss of motion control,
    drainage and odour, sensations of burning, tightness, or blue discolouration of
    the fingers. There was no discussion about possible compartment syndrome or the
    fact that the respondent was at increased risk of complications due to the high
    impact injury. The respondent knew that he should return to the emergency room
    if the cast was too tight.

[11]

The next morning, the respondent awoke with increased pain and swelling.
    The respondents father initially recalled the appellants advice that pain and
    swelling were normal for up to two to three days. However, due to the
    excruciating nature of the pain, the respondent and his father ultimately attended
    the hospital where Dr. Orsini practiced, arriving sometime before 11:26 a.m.
    The triage nurse erroneously gave the respondent low priority, reflecting her
    assessment of his level of pain and discomfort. While waiting, the respondent became
    concerned that something was wrong. He managed to attract the attention of a cast
    technician who immediately contacted the emergency room physician. The
    respondent was examined shortly thereafter, at approximately 1:15 p.m. The
    emergency room physician, Dr. Tanzer, observed that the respondents hand was
    bluish in colour, that he was in significant pain and that he had very little
    hand movement. He suspected compartment syndrome and ordered an X-ray.

[12]

The trial judge adopted, at para. 9 of her reasons, the following
    definition of compartment syndrome from a glossary of medical terms filed by
    the appellant: a painful condition resulting from the expansion of enclosed
    tissue within its anatomical enclosure, producing pressure that interferes with
    circulation and adversely affects the function and health of the tissue itself.

[13]

The emergency room physician split the cast open. By coincidence, Dr.
    Orsini was the orthopedic surgeon on call. Later that evening, Dr. Orsini
    performed a fasciotomy, a surgical procedure to open the respondents forearm
    and cut into the arms compartments to relieve the pressure built up by the
    compartment syndrome. The procedure confirmed a diagnosis of compartment
    syndrome. Dr. Orsini reported in his notes that the muscles in the respondents
    arm were viable, red, bleeding and contractile, indicating that muscle necrosis
    had not yet set in.

[14]

Despite the absence of necrosis, the respondent suffered permanent
    muscle damage as a result of the compartment syndrome. Before trial, the
    parties had agreed that, should there be a finding of liability, the
    appropriate award of damages would be $350,000, inclusive of pre-judgment
    interest.

THE TRIAL

[15]

The central issues at trial were whether the appellant had fallen below
    the standard of care by applying a full circumferential cast on the respondents
    wrist and whether the full cast caused the compartment syndrome.

[16]

The respondents theory was that the nature of his injury could be
    expected to cause significant swelling and that the full circumferential cast
    rather than a splint or bivalved (half) cast  acted as a barrier that became
    too tight and caused the compartment syndrome to develop. The appellants
    theory was that a full cast was appropriate in the circumstances, as the
    respondent had not decided whether to undergo surgery. The appellant further
    submitted that the compartment syndrome was not caused by the cast but rather by
    the original injury, and had developed after the cast was removed.

[17]

As might be expected, much of the eight-day trial concerned expert
    evidence. The trial judge made several attempts to manage the way in which the
    expert evidence was received.

[18]

Despite repeated suggestions by the trial judge that the parties make
    the expert reports exhibits, counsel for both parties (particularly the
    appellants counsel) objected. However, they agreed to provide her with copies
    of the reports to aid her in following the evidence. I note here that both the
    appellant and the respondent were represented at trial by different counsel
    than on this appeal.

[19]

The trial judge also suggested on more than one occasion that the expert
    witnesses should meet and confer in an attempt to narrow the issues or conduct
    a hot tubbing session. Counsel, particularly the appellants counsel,
    resisted these suggestions.

[20]

Several issues arose as to the admissibility of various aspects of the
    expert evidence. The trial judge indicated that she would not accept the
    evidence of one proposed expert, Dr. Regan, on the standard of care or
    causation, as he was the brother of the respondents counsel and therefore had
    a potential conflict of interest. Dr. Regan was not called.

[21]

The respondent obtained an expert report from Dr. Orsini, the orthopedic
    surgeon who performed the surgery to relieve the compartment syndrome. Dr.
    Orsini died before the trial. The trial judge ruled that his first report
    outlining his observations and the facts as to the treatment he provided were
    admissible pursuant to s. 52 of the
Evidence Act
, R.S.O. 1990, c. E.23,
    which permits the admission of a medical practitioners report with leave of
    the court. This ruling was not contested at trial or on appeal. The trial judge
    refused to admit Dr. Orsinis opinions on standard of care and causation,
    contained in his second report, for the truth of their contents. She did so on
    the grounds that Dr. Orsini was not available for cross-examination, and the
    requirement of necessity had not been met since the respondent had another
    expert who could testify to these issues. However, as other expert witnesses
    had commented on Dr. Orsinis opinion, the trial judge concluded, at para. 21,
    that Dr. Orsinis opinions on negligence and causation expressed in his
    reports are admissible as part of the
res gestae
and background, but not
    admitted for their truth.

[22]

The trial judge also ruled that certain statements made by Dr. Orsini to
    the respondents father expressing strong criticism of the appellants
    treatment of the respondent were admissible as part of the
res gestae
,
    but not for their truth. The father testified that Dr. Orsini told him:

·

The cast never should have been put on, as it was far too tight
    it killed the flesh in your sons arm.

·

[The appellant] didnt set the wrist. He made it worse and managed
    to catch the nerve between the bones and damaged the nerve as well.

·

Whoever did this butchered your son.

[23]

The trial judge explained her treatment of this evidence at para. 204:

I conclude that the conversation is not admissible for its
    truth. The content of the conversation is very prejudicial, and goes to the
    heart of this lawsuit. Its prejudice outweighs any probative value. The
    evidence does not meet the test of necessity. It is admissible only as part of
    the
res gestae
to provide context for this lawsuit, as it was said
    immediately following the surgery as a spontaneous utterance.

[24]

The respondent also sought to adduce opinion evidence from Dr. Tanzer,
    the emergency room physician who first saw the respondent and detected the compartment
    syndrome. Following the Divisional Courts judgment in
Westerhof v. Gee
    Estate
, 2013 ONSC 2093, 310 O.A.C. 335, the appeal from which was heard at
    the same time as this appeal, the trial judge refused to admit Dr. Tanzers
    opinion evidence as to the standard of care and causation because he had not
    prepared a report in compliance with rule 53.03 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194.

[25]

The respondents expert witness was Dr. Robin Richards, a senior
    orthopedic surgeon and professor at the University of Toronto. Dr. Richards had
    lectured and published extensively on upper extremity orthopedic surgery and
    had been qualified as an expert witness on many occasions. His other experience
    included conducting external reviews of orthopedic standards at various
    hospital settings in London and Hamilton. Dr. Richards testified that the
    appellant had fallen below the expected standard of care by using a full
    circumferential cast, and that splints or a bivalved cast would have been the appropriate
    course of action. He concluded from certain symptoms and signs observed by the
    respondent and from the state of the forearm at the time the surgery was
    performed that the application of the full circumferential cast was the cause
    of the compartment syndrome.

[26]

The appellant called two expert witnesses. Dr. Ronald Taylor was a
    retired orthopedic surgeon who had practiced in a community hospital setting
    for his entire career. He supported the appellants use of the full circumferential
    cast as complying with the standard of care, although he agreed that he would
    have applied a bivalved cast had he known that surgery would take place within
    a few days. He testified that in his opinion, the fracture itself, not the
    cast, was the cause of the compartment syndrome.

[27]

During cross-examination, Dr. Taylor indicated that he had sent a draft
    of one of his reports to the appellants counsel for review. Dr. Taylor
    testified that he had produced his final report following an hour and a half
    conference call with counsel. Although the respondents counsel did not pursue
    this issue, the trial judge expressed her concern over what had occurred. She
    asked Dr. Taylor to organize his file in chronological order and to provide the
    court with his draft reports. After counsel had completed their examinations of
    Dr. Taylor, she proceeded to question Dr. Taylor about his draft reports, the
    meetings he had with the appellants counsel and any changes that he had made
    to his reports as a result. When Dr. Taylor indicated that there was another
    file that he did not have with him, she directed the appellants counsel to
    provide the court with all instructing letters and records of any conference
    calls, and asked Dr. Taylor to return the next day. That led to a detailed
    review of Dr. Taylors draft reports as well as scrutiny of the notations and
    changes he made as a result of discussing his draft reports with the
    appellants counsel.

[28]

In her reasons for judgment, the trial judge commented adversely on the
    consultation between Dr. Taylor and the appellants counsel, and on Dr.
    Taylors reaction in the witness stand when confronted with the fact that he
    had discussed his draft with counsel.

[29]

The appellant also called Dr. George Athwal, another orthopedic surgeon,
    who supported the use of a full circumferential cast. Dr. Athwal was primarily
    engaged in teaching and research and had limited clinical experience.

[30]

Following the completion of the evidence and oral argument, the trial
    judge convened a meeting with counsel at which time she again requested that
    the expert reports be made exhibits. Again, counsel refused to have the reports
    dealt with in that manner.

[31]

The trial judge subsequently delivered lengthy and detailed written
    reasons accepting the evidence of Dr. Richards and rejecting that of Drs.
    Taylor and Athwal. She found that the appellant was negligent in using a full
    circumferential cast and that his negligence caused the respondent to develop
    compartment syndrome. I will review the impugned portions of her reasons in the
    course of my analysis of the issues.

ISSUES

[32]

The appellant raises the following issues on appeal:

1.

Did
    the trial judge err in her treatment of the appellants expert opinion evidence
    by:

a.

Criticizing
    the appellants counsel for discussing with an expert witness the content of
    his draft report?

b.

Rejecting
    aspects of the appellants expert opinion evidence on account of alleged
    contradictions between the experts testimony and the experts written reports?

2.

Did
    the trial judge err in her application of the doctrine of
res gestae
?

3.

Did
    the trial judge err in her analysis of causation?

4.

Did
    the trial judges errors render the trial unfair and cause a substantial wrong
    or miscarriage of justice?

ANALYSIS

1. (a) Did the trial judge err by criticizing the appellants
    counsel for discussing with their expert witness the content of his draft
    report?

(i)

Expert evidence

[33]

Expert evidence is a significant and controversial feature of modern
    civil litigation. It constitutes an exception to the rule that witnesses may
    only testify as to facts, not opinions, and that it is the exclusive
    prerogative of the trier of fact to draw inferences from proven facts. The
    expert evidence exception operates where specialized knowledge is required to
    determine the implications of the bare facts and where the trier of fact is not
    competent to draw the necessary inferences unaided:
R. v. Mohan
, [1994]
    2 S.C.R. 9, at p. 23;
R. v. Abbey
, 2009 ONCA 624, 246 C.C.C. (3d) 301,
    at para. 94.

[34]

Expert evidence has become more significant with the explosion of
    scientific knowledge and technical innovation. Many cases have been described
    as a battle of experts. Medical negligence cases are a prime example. The
    trier of fact requires the assistance of expert witnesses to decide issues pertaining
    to the standard of care, causation and prognosis.

[35]

The use of expert evidence poses difficult issues that have been the
    focus of consideration in civil justice reform. How do we control the added
    costs associated with the explosion of expert witnesses? How do we ensure that
    a party has a fair opportunity to challenge an adverse expert witness? How do
    we ensure that expert witnesses offer an unbiased scientific or technical
    opinion based upon their training and expertise, rather than act as hired
    guns who present unbalanced opinions unduly favouring the party that retains
    them?

(ii)

2010 amendments to rule 53.03

[36]

Rule 53.03 establishes the framework that parties must follow when they intend
    to call an expert witness at trial. The rule requires a party to provide a
    signed report from the expert witness not less than 90 days before the
    pre-trial conference or, in the case of a responding report, not less than 60
    days before the pre-trial conference (rules 53.03(1), (2)). Rule 53.03(3)
    provides that an expert witness may not testify with respect to an issue,
    except with leave of the trial judge, unless the substance of his or her
    testimony is set out in writing in compliance with the other provisions of the
    rule.

[37]

In 2010, significant changes were made to the
Rules of Civil
    Procedure
relating to expert witnesses, following the recommendations of
    the Honourable Coulter Osborne contained in his review of the civil justice
    system,
Civil Justice Reform Project: Summary of Findings &
    Recommendations
(Toronto: Ontario Ministry of the Attorney General, 2007). His
    report highlighted, at p. 71, the common complaint that too many experts are no
    more than hired guns who tailor their reports and evidence to suit the clients
    needs. Two significant recommendations of the Osborne Report, designed to
    foster unbiased expert evidence, were subsequently adopted.

[38]

First, rule 4.1.01(1) specifically addresses the duty of an expert
    witness:

It is the duty
    of every expert engaged by or on behalf of a party to provide evidence in
    relation to a proceeding under these rules,

(a) to provide opinion evidence that
    is fair, objective and non-partisan;

(b) to provide opinion evidence that
    is related only to matters that are within the experts area of expertise; and

(c) to provide such additional
    assistance as the court may reasonably require to determine a matter in issue.

[39]

Second, rule 53.03(2.1) provides that an expert report must
    contain the
following information:

1.    The experts name, address and area of
    expertise.

2.    The experts
    qualifications and employment and educational experiences in his or her area of
    expertise.

3.    The
    instructions provided to the expert in relation to the proceeding.

4.    The nature of
    the opinion being sought and each issue in the proceeding to which the opinion
    relates.

5.    The experts
    opinion respecting each issue and, where there is a range of opinions given, a
    summary of the range and the reasons for the experts own opinion within that
    range.

6.    The experts
    reasons for his or her opinion, including,

i.    a description
    of the factual assumptions on which the opinion is based,

ii.   a description
    of any research conducted by the expert that led him or her to form the
    opinion, and

iii.  a list of every
    document, if any, relied on by the expert in forming the opinion.

7.     An
    acknowledgement of experts duty (Form 53) signed by the expert.

[40]

The certificate mandated by rule 53.03(2.1) reads as follows:

ACKNOWLEDGMENT OF
    EXPERTS DUTY

1.

My name is
    .......................................................
(name)
. I live
    at .............................................
(city)
, in the
    ............................................
(province/state)
of
    ...........................................
(name of province/state)
.

2.

I have been engaged by or on behalf of
    ...........................
(name of party/parties)
to provide evidence
    in relation to the above-noted court proceeding.

3.

I acknowledge that it is my duty to provide
    evidence in relation to this proceeding as follows:

(a)

to provide opinion evidence that is fair, objective and non-partisan;

(b)

to provide opinion evidence that is related only to matters that are
    within my area of expertise; and

(c)

to provide
    such additional assistance as the court may reasonably require, to determine a
    matter in issue.

4.

I acknowledge that the duty referred to above
    prevails over any obligation which I may owe to any party by whom or on whose
    behalf I am engaged.

Date ..............................

Signature

(iii)

The trial judges ruling

[41]

The trial judge was plainly troubled by the suggestion that Dr. Taylor
    had reviewed his draft report with the appellants counsel. The issue first
    emerged in answer to a question during Dr. Taylors cross-examination, but the
    respondents counsel did not pursue it at any length. The trial judge took up
    the issue and, as I have indicated, directed Dr. Taylor to produce his draft
    reports and the notes he made while discussing them with the appellants counsel.
    The trial judge questioned Dr. Taylor at length about the precise changes he
    had made as a result of those discussions.

[42]

The trial judge was critical of the appellants counsel for having
    discussed Dr. Taylors draft report with him during an hour and a half
    telephone conference call. She concluded that there had been significant
    changes. The trial judge stated, at paras. 287-288, that this put Dr. Taylor in
    a very awkward situation as he was obviously totally unaware that it may be
    improper to discuss and change a draft report, as a breach of his duty of impartiality.
    She commented adversely on Dr. Taylors credibility, at para. 291, on account
    of a dramatic difference in the tone and demeanor of Dr. Taylors evidence after
    he was confronted with the fact that he had made changes to his report as a
    result of discussions with counsel. She rejected his explanation that the
    changes were minor, found that he minimized the changes and concluded, at para.
    293:

I conclude that the meeting between defence counsel and Dr.
    Taylor involved more than simply superficial, cosmetic changes. The
    conversation took place over a period of one and a half hours. Some content
    helpful to the plaintiff in the August 27, 2013 draft report was deleted or
    modified. I find that Dr. Taylors opinion, although not changed, was certainly
    shaped by defence counsels suggestions.

[43]

The trial judge strongly disapproved of the practice of counsel
    reviewing draft expert reports. She stated, at para. 52:

The practice of discussing draft reports with counsel is
    improper and undermines both the purpose of Rule 53.03 as well as the experts
    credibility and neutrality.

[44]

The trial judge expanded upon this proposition, at para. 520:

The purpose of Rule 53.03 of the
Rules of Civil Procedure
is
    to ensure the independence and integrity of the expert witness. The experts
    primary duty is to the court. In light of this change in the role of the expert
    witness under the new rule, I conclude that counsels practice of reviewing
    draft reports should stop. There should be full disclosure in writing of any
    changes to an experts final report as a result of counsels corrections,
    suggestions, or clarifications, to ensure transparency in the process and to
    ensure that the expert witness is neutral.

[45]

The trial judge was obviously of the view that the then current practice
    and the ethical rules and standards of the legal profession were inadequate to
    deal with the hired gun problem. Her solution was to strictly control
    discussions between expert witnesses and counsel and to require that all
    discussions be documented and subject to disclosure and production.

(iv)

Reaction to the trial judges ruling

[46]

The trial judges statements as to the propriety of counsel reviewing
    draft expert reports have caused considerable concern in the legal profession
    and in the community of expert witnesses. Both The Advocates Society and the
    Canadian Institute of Chartered Business Valuators struck task forces to
    develop a response. Both of these organizations have intervened in this appeal
    to provide their perspectives. The Advocates Society presented the court with
    its
Principles Governing Communications with Testifying Experts
(Toronto:
    The Advocates Society, June 2014) as well as its
Position Paper on
    Communication with Testifying Experts
(Toronto: The Advocates Society,
    June 2014).

[47]

There are several other interveners, all of whom oppose the trial
    judges ruling. The Holland Access to Justice in Medical Malpractice Group
    (The Holland Group) is composed of leading members of the plaintiff and
    defence bar engaged in medical malpractice litigation. Its objective is to promote
    reform of the justice system to achieve the equitable, affordable and just
    resolution of medical malpractice claims. In response to the trial judges
    decision, The Holland Group prepared a position paper, which posits, at p. 2,
    that if accepted, the trial judges ruling:

[W]ould have the effect of impairing normal, reasonable and
    prudent litigation practices, would substantially increase the cost of
    litigation, would do a disservice to the Court in terms of hearing fulsome,
    well-organized and appropriate evidence, and ultimately would result in a
    chilling and significantly restrictive effect on access to justice.

[48]

The Canadian Defence Lawyers Association submitted that the trial
    judges ruling was unprecedented, unsupported in law and seriously flawed.
    The Criminal Lawyers Association intervened to point out the problems that
    would be encountered in criminal cases if the trial judges prohibition on
    consultation with experts were adopted. The Ontario Trial Lawyers Association
    agrees that the trial judges imposed restriction on communication with expert
    witnesses is contrary to the interests of justice, and argued that any
    communication between counsel and expert witnesses that does not undermine
    their helpfulness or foster bias should be permitted.

[49]

It is apparent from the submissions of the parties and the interveners
    representing both sides of the bar that, if accepted, the trial judges ruling
    would represent a major change in practice. It is widely accepted that
    consultation between counsel and expert witnesses in the preparation of Rule
    53.03 reports, within certain limits, is necessary to ensure the efficient and
    orderly presentation of expert evidence and the timely, affordable and just
    resolution of claims.

(v)

Is it appropriate for counsel to review draft expert reports?

[50]

I begin by considering the changes made to Dr. Taylors report following
    discussion with counsel. Nowhere in her reasons does the trial judge explain which
    changes were significant. My review of the draft reports, the notes, the
    changes and Dr. Taylors explanation indicates that the changes could be
    described as relatively minor editorial and stylistic modifications intended to
    improve the clarity of the reports. I can see no evidence of any significant
    change in substance, nor did counsel for the respondent on this appeal point to
    any such change. In my view, there is nothing in the record to indicate that
    either counsel or Dr. Taylor did anything improper or that Dr. Taylors report
    reflected anything other than his own genuine and unbiased opinion.

[51]

I now turn to the law. I disagree with the trial judges statement that
    the 2010 amendments to rule 53.03 introduced a change in the role of expert
    witnesses.

[52]

As I read the amendments and the Osborne Report recommendations, the
    changes were intended to clarify and emphasize the existing duties of expert
    witnesses. I agree with Lederman J.s statement in
Henderson v. Risi
,
    2012 ONSC 3459, 111 O.R. (3d) 554 (S.C.), at para. 19, that these changes
    represent a restatement of the basic common law principle that it is the duty
    of an expert witness to provide opinion evidence that is fair, objective and
    non-partisan. Those common law duties were summarized in an often cited
    passage from
National Justice Compania Naviera S.A. v. Prudential Assurance
    Co. Ltd
. (
The Ikarian Reefer
), [1993] 2 Lloyd's Rep. 68, at p. 81 (Eng.
    Q.B. Comm.), rev'd on other grounds but endorsed on this point, [1995] 1
    Lloyd's Rep 455 (Eng. C.A. Civ.), at p. 496:

1. Expert evidence presented to the
    Court should be, and should be seen to be, the independent product of the
    expert uninfluenced as to form or content by the exigencies of litigation
    [citation omitted].

2. An expert witness should provide independent assistance to
    the Court by way of objective unbiased opinion in relation to matters within
    his expertise [citation omitted]. An expert witness should never assume the
    role of an advocate.

The 2010 amendments to rule 53.03 did not create new
    duties but rather codified and reinforced these basic common law principles.

[53]

The changes suggested by the trial judge find no support in the various
    reviews and studies on civil justice reform to which we have been referred. The
    Honourable Coulter Osborne certainly shared the trial judges aspiration for a
    regime that fosters unbiased expert evidence, yet there is no suggestion in his
    report that the solution could be found by altering the long-standing practice
    of counsel reviewing draft reports.

[54]

The
Inquiry into Pediatric Forensic Pathology in Ontario
(Toronto:
    Ontario Ministry of the Attorney General, 2008), conducted by Justice Stephen
    Goudge, looked into the shocking miscarriages of justice brought about by biased
    expert evidence. At p. 48 of his report, Justice Goudge stressed the importance
    of [p]roperly prepared expert reports, along with a certification that the
    expert understands the duty to provide impartial advice to the court in order
    to help ensure the reliability of expert evidence. Justice Goudge concluded, at
    p. 47, that proper communication with and preparation of expert witnesses was
    vital to enable them to communicate their opinions effectively to the court: [C]ounsel,
    whether Crown or defence, should properly prepare forensic pathologists they
    intend to call to give evidence.

[55]

While some judges have expressed concern that the impartiality of expert
    evidence may be tainted by discussions with counsel (see the cases cited below,
    at para. 72), banning undocumented discussions between counsel and expert
    witnesses or mandating disclosure of all written communications is unsupported
    by and contrary to existing authority: see
Maras v. Seemore Entertainment
    Ltd.,
2014 BCSC 1109, [2014] B.C.W.L.D. 4470, at para. 90 ([c]ounsel have
    a role in assisting experts to provide a report that satisfies the criteria of
    admissibility);
Surrey Credit Union v. Willson
(1990), 45 B.C.L.R. (2d)
    310 (S.C.), at para. 25 ([t]here can be no criticism of counsel assisting an
    expert witness in the preparation of giving evidence). In
Medimmune Ltd. v.
    Novartis Pharmaceuticals UK Ltd. & Anor
, [2011] EWHC 1669 (Pat.), the
    court pointed out, at para. 110, that in some highly technical areas such as
    patent law
, expert witnesses require a high level of
    instruction by the lawyers which may necessitate a high degree of
    consultation involving an iterative process through a number of drafts.

[56]

As the court in
Medimmune
noted, at para. 111, this process
    entails a risk of loss of objectivity on the part of the expert. However, the
    independence and objectivity of expert witnesses is fostered under existing law
    and practice in a number of ways.

[57]

First, the ethical and professional standards of the legal profession
    forbid counsel from engaging in practices likely to interfere with the
    independence and objectivity of expert witnesses. I attach as an Appendix to
    these reasons The Advocates Societys
Principles Governing Communications
    with Testifying Experts
, which provides a thorough and thoughtful statement
    of the professional standards pertaining to the preparation of expert
    witnesses. Principle 3 states:

In fulfilling the advocates duty to present clear,
    comprehensible and relevant expert evidence, the advocate should not
    communicate with an expert witness in any manner likely to interfere with the
    experts duties of independence and objectivity.

[58]

To the same effect, The Holland Groups position paper includes, at p.
    4, its opinion that it is inappropriate for counsel to persuade or attempt to
    persuade experts to articulate opinions that they do not genuinely hold, and
    that it is of paramount importance that the expert genuinely believes the
    opinion that he or she articulates both in the expert report and in the witness
    box.

[59]

In
Medimmune
, at para. 111, the court emphasized that it is
    crucial that the lawyers involved should keep the experts need to remain
    objective at the forefront of their minds at all times.

[60]

Second, the ethical standards of other professional bodies place an obligation
    upon their members to be independent and impartial when giving expert evidence:
    see
Guideline: The Professional Engineer as an Expert Witness
(Toronto:
    Association of Professional Engineers of Ontario, September 2011); the Actuarial
    Standards Boards
Standards of Practice
(Ottawa: Canadian Institute of
    Actuaries, October 2014); the Canadian Institute of Chartered Business
    Valuators
Code of Ethics
(Toronto: Canadian Institute of Chartered Business
    Valuators, 2012),
Standard No. 110: Valuation Reports
(Toronto: Canadian
    Institute of Chartered Business Valuators, 2009) and
Standard No. 310:
    Expert Reports
(Toronto: Canadian Institute of Chartered Business
    Valuators, 2010). Further, pursuant to the
Rules of Civil Procedure
, every
    expert witness is reminded of the duty imposed by rule 4.1.01 to be objective
    and impartial when signing the acknowledgment of experts duty mandated by rule
    53.03(2.1).

[61]

Third, the adversarial process, particularly through cross-examination,
    provides an effective tool to deal with cases where there is an air of reality
    to the suggestion that counsel improperly influenced an expert witness. Judges
    have not shied away from rejecting or limiting the weight to be given to the
    evidence of an expert witness where there is evidence of a lack of independence
    or impartiality. In
Medimmune
, at para. 111, the court noted that
    partisan expert evidence is almost always exposed as such in
    cross-examination, which is likely to reduce, if not eliminate, the value of
    the evidence to the clients case; see also
Alfano v. Piersanti
, 2012
    ONCA 297, 291 O.A.C. 62, at paras. 106-120.

[62]

I agree with the submissions of the appellant and the interveners that
    it would be bad policy to disturb the well-established practice of counsel
    meeting with expert witnesses to review draft reports. Just as lawyers and
    judges need the input of experts, so too do expert witnesses need the
    assistance of lawyers in framing their reports in a way that is comprehensible
    and responsive to the pertinent legal issues in a case.

[63]

Consultation and collaboration between counsel and expert witnesses is
    essential to ensure that the expert witness understands the duties reflected by
    rule 4.1.01 and contained in the Form 53 acknowledgment of experts duty.
    Reviewing a draft report enables counsel to ensure that the report (i) complies
    with the
Rules of Civil Procedure
and the rules of evidence, (ii) addresses
    and is restricted to the relevant issues and (iii) is written in a manner and
    style that is accessible and comprehensible. Counsel need to ensure that the
    expert witness understands matters such as the difference between the legal
    burden of proof and scientific certainty, the need to clarify the facts and assumptions
    underlying the experts opinion, the need to confine the report to matters
    within the expert witnesss area of expertise and the need to avoid usurping
    the courts function as the ultimate arbiter of the issues.

[64]

Counsel play a crucial mediating role by explaining the legal issues to
    the expert witness and then by presenting complex expert evidence to the court.
    It is difficult to see how counsel could perform this role without engaging in
    communication with the expert as the report is being prepared.

[65]

Leaving the expert witness entirely to his or her own devices, or requiring
    all changes to be documented in a formalized written exchange, would result in
    increased delay and cost in a regime already struggling to deliver justice in a
    timely and efficient manner. Such a rule would encourage the hiring of shadow
    experts to advise counsel. There would be an incentive to jettison rather than
    edit and improve badly drafted reports, causing added cost and delay.
    Precluding consultation would also encourage the use of those expert witnesses
    who make a career of testifying in court and who are often perceived to be
    hired guns likely to offer partisan opinions, as these expert witnesses may
    require less guidance and preparation. In my respectful view, the changes
    suggested by the trial judge would not be in the interests of justice and would
    frustrate the timely and cost-effective adjudication of civil disputes.

[66]

For these reasons, I reject the trial judges proclamation that the
    practice of consultation between counsel and expert witnesses to review draft
    reports must end. However, as I will discuss below, the trial judges unwarranted
    criticism of the appellants counsel on this basis did not, in my view, affect
    the outcome of the trial.

(vi)

Documentation and disclosure of consultations regarding draft reports

[67]

I now turn to the issue of the extent to which consultations between
    counsel and expert witnesses need to be documented and disclosed to an opposing
    party.

[68]

The starting point for analysis is that such consultations
    attract the protection of litigation privilege. Litigation privilege protects
    communications with a third party where the dominant purpose of the
    communication is to prepare for litigation. As explained by the Supreme Court
    of Canada in
Blank v. Canada (Minister of Justice)
, 2006 SCC 39, [2006] 2
    S.C.R. 319, at para. 27, the object of litigation privilege
is
    to ensure the efficacy of the adversarial process, and to achieve this
    purpose, parties to litigation must be left to prepare their contending
    positions in private, without adversarial interference and without fear of
    premature disclosure. These concerns are important in the context of the
    preparation of expert witnesses and their reports.

[69]

In
Blank
, the court noted, at para. 34, that
    litigation privilege creates a zone of privacy in relation to pending or
    apprehended litigation. The careful and thorough preparation of a case for
    trial requires an umbrella of protection that allows counsel to work with third
    parties such as experts while they make notes, test hypotheses and write and
    edit draft reports.

[70]

Pursuant to rule 31.06(3), the draft reports of
    experts the party does not intend to call are privileged and need not be
    disclosed. Under the protection of litigation privilege, the same holds for the
    draft reports, notes and records of any consultations between experts and counsel,
    even where the party intends to call the expert as a witness.

[71]

Making preparatory discussions and drafts subject
    to automatic disclosure would, in my view, be contrary to existing doctrine and
    would inhibit careful preparation. Such a rule would discourage the
    participants from reducing preliminary or tentative views to writing, a
    necessary step in the development of a sound and thorough opinion. Compelling
    production of all drafts, good and bad, would discourage parties from engaging
    experts to provide careful and dispassionate opinions and would instead encourage
    partisan and unbalanced reports.
Allowing an open-ended inquiry into the
    differences between a final report and an earlier draft would unduly interfere
    with the orderly preparation of a partys case and would run the risk of
    needlessly prolonging proceedings.

[72]

I recognize that the wisdom of extending litigation
    privilege to the preparation of expert reports has been questioned by some
    judges: see
Browne (Litigation Guardian of) v. Lavery
, (2002)
58 O.R. (3d) 49 (S.C.),
at paras. 65-71;
Aviaco
    International Leasing Inc. v. Boeing Canada Inc.
, 2002 CanLII 21293, [2002]
    O.J. No. 3799 (S.C.), at para. 16
. However, the law currently imposes
    no routine obligation to produce draft expert reports:
Conceicao
    Farms Inc. v. Zeneca Corp.

(2006),
83 O.R. (3d)
    792 (C.A.), at para. 14;
Mendlowitz v. Chaing
, 2011 ONSC 2341 (S.C.), at paras. 20-24.

[73]

It is important to note that
the
litigation privilege attaching to expert reports is qualified, and
    disclosure may be required in certain situations.

[74]

The most obvious qualification is that the
Rules of
    Civil Procedure
require disclosure of the opinion of an expert witness
    before trial. If a party intends to call the expert as a witness at trial, rule
    31.06(3) entitles the opposite party on oral discovery to
obtain
    disclosure of the findings, opinions and conclusions of an expert engaged by or
    on behalf of the party being examined.

[75]

As well, the party who intends to call the expert witness
    is required to disclose the experts report and the other information mandated
    by rule 53.03(2.1). The result is that what has been called the foundational
    information for the opinion must be disclosed:
Conceicao Farms
,

at para. 14. Bryant, Lederman and Fuerst refer to this as an implied
    waiver of privilege over the facts underlying an experts opinion that results
    from calling the expert as a witness: Alan W. Bryant, Sidney N. Lederman and
    Michelle K. Fuerst,
Sopinka, Lederman & Bryant: The Law of Evidence in
    Canada,
4th ed. (Markham: LexisNexis Canada, 2014), at para. 14.220. These
    authors favour restricting the implied waiver to material relating to
    formulation of the expressed opinion (at para. 14.224). They state that
    caution should be exercised before requiring wide-ranging disclosure of all
    solicitor-expert communications and drafts of reports, as such a practice
    could encourage a general practice among solicitors of destroying drafts after
    they are no longer needed just to avoid the problem (at para. 14.226).

[76]

The second qualification is that, as stated in
Blank
,
    at para. 37, litigation privilege, unlike the solicitor-client privilege, is neither
    absolute in scope nor permanent in duration. Litigation privilege yields where
    required to meet the ends of justice
, and [i]t
is not
    a black hole from which evidence of ones own misconduct can never be exposed
    to the light of day:

Blank
, at para.
    44.

[77]

In my view, the ends of justice do not permit litigation
    privilege to be used to shield improper conduct. As I have already mentioned,
    it is common ground on this appeal that it is wrong for counsel to interfere
    with an experts duties of independence and objectivity. Where the party
    seeking production of draft reports or notes of discussions between counsel and
    an expert can show reasonable grounds to suspect that counsel
communicated
    with an expert witness in a manner likely to interfere with the expert witnesss
    duties of independence and objectivity, the court can order disclosure of such
    discussions. See, for example,
Ebrahim v. Continental Precious Minerals Inc.
,
    2012 ONSC 1123 (S.C.), at paras. 63-75, where the court ordered disclosure of
    draft reports and affidavits after an expert witness testified that he did not
    draft the report or affidavit containing his expert opinion and admitted that
    his firm had an ongoing commercial relationship with the party calling him.

[78]

Absent a factual foundation to support a reasonable suspicion that
    counsel improperly influenced the expert, a party should not be allowed to
    demand production of draft reports or notes of interactions between counsel and
    an expert witness. Evidence of an hour and a half conference call plainly does
    not meet the threshold of constituting a factual foundation for an allegation
    of improper influence. In my view, the trial judge erred in law by stating that
    all changes in the reports of expert witnesses should be routinely documented
    and disclosed. She should not have ordered the production of Dr. Taylors
    drafts and notes.

1.
    (b) Did the trial judge err by rejecting aspects of the appellants expert
    opinion evidence on account of alleged contradictions between the experts testimony
    and the experts written reports?

[79]

In her reasons for judgment, the trial judge explained, at para. 73, how
    she dealt with the written reports when assessing the expert evidence:

[I]n light of defence counsels insistence, I considered only
    the
viva voce
[evidence] of the expert witnesses for its truth. However,
    where there was a conflict between the evidence at trial and the contents of
    the expert report, or if there were omissions in the expert report compared to
    the evidence given at trial, I conclude that the contents of the experts
    report were admissible and relevant to assess the reliability and credibility
    of the experts opinion.

[80]

The appellant points to one instance where the trial judge used Dr.
    Taylors report in this way. The trial judge noted, at para. 224, that Dr.
    Taylor testified that the compartment syndrome could have been developing early
    in the morning when the respondent awoke, or it could have developed after the
    cast was removed. She rejected his evidence as to the latter possibility based
    on what she perceived to be a contradiction between his trial evidence and the
    contents of his written report, where he had stated that the compartment
    syndrome developed early in the morning. The trial judge explained her
    rejection of his
viva voce
evidence, at para. 227, as follows:

Dr. Taylors report is available to me as an aide only. I do
    not accept Dr. Taylors suggestion in his
viva voce
evidence that the
    compartment syndrome may have developed after the cast was removed. This
    suggestion is contradicted by the contents of his report.

[81]

The appellant points to several instances where the trial judge made the
    same alleged error in relation to the evidence of Dr. Athwal.

[82]

At para. 315, she observed that Dr. Athwals report confirmed the view
    he expressed in his evidence that a full circumferential cast was appropriate,
    but the report did not explain that the application of a full circumferential
    cast is merely the first step after a closed reduction, before assessing
    treatment options. This led her to find that [h]is written report was
    incomplete and hence in my view misleading.

[83]

The trial judge noted, at para. 322, Dr. Athwals acknowledgment that a
    full cast could exacerbate the development of compartment syndrome, but
    commented that [t]his important acknowledgement was not contained in his
    report. She criticized his report, at para. 396, for failing to disclose what
    he taught his students and, at para. 365, for failing to mention that the maintaining
    of a full circumferential cast assumes that the reduction was successful, and
    that no surgery was required. Likewise, she observed, at para. 367, that his
    report failed to state that after a closed reduction, the next step is to
    review the X-rays to assess the success of the reduction and determine what
    further steps should be taken.

[84]

The appellant contrasts the trial judges treatment of alleged discrepancies
    between the
viva voce
evidence and the reports of his experts with her
    treatment of a similar issue in relation to Dr. Richards report. On
    cross-examination, Dr. Richards was confronted with the statement in his report
    that the cast should have been well-padded
or
bivalved (emphasis
    added). He maintained in his testimony that a bivalved cast was required. In
    her reasons, the trial judge accepted his
viva voce
evidence and
    suggested that the word or was a typo and should have read and, an
    explanation not offered by Dr. Richards. However, she also noted that this
    statement in Dr. Richards report described treatment for any kind of acute
    injury and did not specifically refer to high impact injuries, such as the
    respondents injury.

[85]

In my view, the trial judges use of the expert reports of Drs. Taylor
    and Athwal to contradict their
viva voce
evidence reveals an error of
    law.

[86]

If an experts report has not been entered into evidence as an exhibit, it
    has no evidentiary value, even if provided to the trial judge as an
aide
    memoire
. Inconsistencies between the
viva voce
evidence of an expert
    witness and his or her written report are the proper subject of
    cross-examination. However, if the expert witness was not cross-examined as to
    an inconsistency between his or her
viva voce
evidence and the contents
    of their report, it is not open to a trial judge to place any weight in
    assessing the experts credibility on this perceived inconsistency. This is not
    a mere technicality but rather a matter of trial fairness. The expert witness
    is entitled to be openly confronted with what may appear to be contradictions
    so that he or she has the opportunity to explain or clarify the apparent inconsistencies.

[87]

It follows that the trial judge erred to the extent that she relied on
    perceived contradictions between the experts oral evidence and their reports, as
    the alleged contradictions were not put to the experts in cross-examination and
    the reports were not exhibits.

2.
    Did the trial judge err in her application of the doctrine of
res gestae
?

[88]

The appellant submits that the trial judge erred in her application of
    the
res gestae
exception to the hearsay evidence rule. The
res gestae
exception allows a court to admit, for the truth of their contents, certain
    utterances which would otherwise be classified as hearsay on the grounds that
    the contemporaneous circumstances make the utterances reliable and less prone
    to misinterpretation. The three categories of utterances that may be properly
    characterized as part of the
res gestae
are (i) declarations of bodily
    and mental findings and conditions, (ii) declarations accompanying and
    explaining relevant acts and (iii) spontaneous exclamations: Bryant,
    Lederman and Fuerst, at para. 6.299.

[89]

While I agree that the trial judge misused the label
res gestae
,
    I am not persuaded that she made inappropriate use of hearsay evidence or that
    any error she made had an impact on the outcome of this trial.

[90]

As I have noted, the trial judge referred to
res gestae
in
    relation to two pieces of evidence  first, in relation to the report written
    by Dr. Orsini giving his opinion on the issues of standard of care and
    causation, and second, in relation to the statements made by Dr. Orsini to the
    respondents father commenting adversely on the appellants treatment of the
    respondent. In both instances, she clearly stated that she was not admitting
    the hearsay evidence for its truth, but only as part of the narrative.

[91]

The
res gestae
doctrine operates as an exception to the hearsay
    rule and allows a court to admit certain utterances for their truth. The
res
    gestae
doctrine has no application to the admission of evidence as part of
    the narrative. I note, however, that the trial judges error is relatively
    common: see Bryant, Lederman and Fuerst, at paras. 6.300-6.301. In my view, in
    this case, it was a harmless error of nomenclature rather than substance.

[92]

The trial judge explained that she was admitting Dr. Orsinis report
    simply because other experts had referred to it in their reports and it would
    assist her in understanding the evidence. Although it was wrong to describe
    this as
res gestae
, it was appropriate for her to use Dr. Orsinis
    report in this manner and there is nothing in her reasons or in the record to
    indicate that she made any improper use of this evidence.

[93]

I find it more difficult to understand any reason for admitting the
    statements Dr. Orsini made to the respondents father. However, the trial judge
    explicitly held that Dr. Orsinis statements were not being admitted for their
    truth and I can find nothing in her reasons or in the record to suggest that
    she relied on those statements.

[94]

Accordingly, I would not give effect to this ground of appeal.

3. Did the trial judge err in her analysis of causation?

[95]

I am unable to accept the appellants submission that it was
    unreasonable for the trial judge to find that the cast caused the respondent to
    suffer compartment syndrome, or that the trial judge erred by failing to
    consider whether the cast had only aggravated a pre-existing condition.

[96]

The defence theory was that compartment syndrome developed after the
    cast was removed, not before. This theory was supported by the triage nurses
    assessment of the respondent when he appeared at the emergency department the
    day after the cast had been applied, complaining of pain. She observed no
    acute distress and no obvious discomfort.

[97]

However, the trial judge rejected the nurses evidence and accepted that
    of the respondent as to his level of discomfort. She accepted the medical
    evidence of the respondents witnesses as to the state of his arm at the time
    the fasciotomy was performed.

[98]

The appellant also relies on Dr. Richards evidence that muscle necrosis
    sets in within a few hours of the development of compartment syndrome, and that
    as there was no necrosis when the fasciotomy was performed in the evening,
    compartment syndrome could not have developed in the morning before the cast
    was removed.

[99]

The trial judge reviewed the evidence on this issue at considerable
    length and her reasons demonstrate that she was alive to the issues raised at
    trial and on appeal. She accepted the respondents evidence as to the pain and
    discomfort he felt and, as submitted by the respondent, there was no clear
    evidence of precisely how long it takes for necrosis to develop. Dr. Richards
    was not asked to explain what he meant by a few hours. Dr. Taylor testified
    that in the worst case, compartment syndrome develops in four hours, but the
    speed depends upon the microcirculation of the compartment. It was not
    unreasonable for the trial judge to find that the compartment syndrome
    developed before the cast was removed.

[100]

The
    appellant invoked the crumbling skull doctrine, both at trial and on appeal,
    and argued that the appellant should only be liable for new injuries caused by
    his negligence, not for a pre-existing injury that may have been exacerbated or
    aggravated by the negligent act. The trial judge rejected this argument, at
    para. 497: The crumbling skull doctrine does not apply in this case. Prior to
    the defendants negligence, there was no pre-existing compartment syndrome. I
    see no error in the trial judges conclusion that the crumbling skull
    doctrine had no application to the facts of this case.

[101]

In
    my view, the appellant has failed to demonstrate any error of fact or law that
    warrants appellate review on the issue of causation.

4.
    Did the trial judges errors render the trial unfair and cause a substantial
    wrong or miscarriage of justice?

[102]

I
    now turn to the question of whether the errors I have identified justify
    setting aside the decision and ordering a new trial.

[103]

The
    appellant submits that the trial judges errors and interventions undermined
    the fairness of the trial, and that justice requires that a new trial be
    ordered. Section 134(6) of the
Courts of Justice Act
, R.S.O. 1990, c.
    C-43, provides that this court shall not direct a new trial unless some substantial
    wrong or miscarriage of justice has occurred.

[104]

It
    is clear from reading the trial judges reasons for judgment that she has
    strong views about the current state of the law relating to expert evidence. The
    legal errors I have identified and the trial judges interventions were a
    product of those views. She took the initiative of conducting a lengthy inquiry
    into the discussions that occurred between counsel and Dr. Taylor in the preparation
    of his draft report. She purported to change the law on such discussions and
    she made no secret of her desire to see the law on other aspects of expert
    evidence revised. She did her best to urge counsel to agree to proceed in
    various ways that she could not force upon them.

[105]

While
    neither counsel was prepared to agree with the trial judges suggestions, the
    appellants counsel appears to have been most vocal in her opposition to these
    suggestions and she bore the brunt of the trial judges dissatisfaction with
    the way the expert evidence was being presented. The trial judge also criticized
    the appellants counsel for taking inconsistent positions on the extent to
    which the experts should be restricted to the scope of their reports. Of
    particular concern is the trial judges unwarranted and unjustified suggestion
    that the appellants counsel acted improperly by discussing with Dr. Taylor his
    draft report.

[106]

However,
    the question that must be asked is whether, at the end of the day, either the fairness
    or result of this trial was actually affected by the trial judges errors and
    interventions.

[107]

While
    the trial judge made erroneous findings about the allegedly improper preparation
    of Dr. Taylors report, and incorrectly used the reports of Drs. Taylor and
    Athwal to undermine aspects of their testimony, these errors do not appear to
    me to have been a significant factor that led her to prefer the evidence of Dr.
    Richards.

[108]

The
    trial judge placed the blame for the allegedly improper preparation on the
    appellants counsel. The only adverse credibility finding she made against Dr.
    Taylor in this regard was a result of his change in tone and demeanour after he
    was subjected to her questioning. This led the trial judge to conclude that he
    viewed his obligations as being to the defence, which detracted from his
    credibility. However, this case turned on the reliability of the expert
    witnesses, not their credibility.

[109]

The
    trial judge gave extensive reasons for accepting Dr. Richards evidence and
    rejecting that of the appellants experts, which were in no way linked to the
    errors she made. The main issue was not whose expert witnesses were most
    credible, but rather whether the opinions of Drs. Taylor and Athwal were to be
    preferred to that of Dr. Richards as offering a coherent, logical and
    convincing explanation of the applicable standard of care and the cause of the
    compartment syndrome.

[110]

The
    trial judge explained the basis for her conclusion that Dr. Richards evidence
    was to be preferred over that of Drs. Taylor and Athwal, at para. 325:

The plaintiffs expert and the defendants experts offer
    different opinions on important issues. Where there are differing opinions, I
    prefer Dr. Richards evidence. I reach this conclusion based on his years of
    experience as an upper extremity orthopedic surgeon, his extensive history of
    teaching and lecturing, his numerous publications, and his vast experience in
    Ontario and internationally as a leading surgeon in his field. In assessing Dr.
    Richards credibility, I emphasize the importance of his independence and
    neutrality. He is abrupt and no nonsense in giving his evidence, but he makes
    concessions both in his written reports and in his evidence where appropriate.
    He provided a consistent, fair, unbiased opinion. As well, his evidence makes
    sense in light of the facts of this case and is consistent with the medical
    literature.

[111]

By
    contrast, she described Dr. Taylor, at para. 285, to be of the old school
    [though] obviously a very competent general orthopedic surgeon. He had vast
    experience in the limited setting of his own community hospital but his
    knowledge of procedures across Ontario is limited to his practical experience
    in one setting as well as what he has learned in annual meetings and journals.
    He did not teach or research and had only treated a few cases of compartment
    syndrome, none requiring surgery. He agreed that a bivalved cast would have
    been appropriate if it was clear that surgery would follow within a few days. He
    also acknowledged that he was infrequently involved in emergency treatment of
    distal radial fractures after 2001.

[112]

Dr.
    Athwal had worked primarily as an academic and had very limited clinical
    experience. He had never before been qualified as an expert witness. The trial
    judge found that he had based his opinion on the mistaken facts that (i) the
    plaintiff was comfortable after the cast was applied and (ii) surgery might not
    take place. The first error was particularly significant because, as the trial
    judge noted, Dr. Athwal had acknowledged that applying a full circumferential
    cast is contraindicated when swelling is abnormal and excessive and pain is
    disproportionate to the injury. Further, the trial judge noted that he did not
    appear to understand the difference between scientific and legal causation.

[113]

Dr.
    Richards quite clearly out-matched the appellants experts in terms of his
    credentials, expertise and experience. He had worked in several Toronto
    hospitals, he had extensive experience treating compartment syndrome and he had
    taught, lectured and published on the subject. His opinion had weight and
    cogency that the opinions of the appellants experts lacked. He presented a
    clear and compelling account of the applicable standard of care and it was
    almost inevitable that his evidence on this crucial issue would be preferred
    over that of Drs. Taylor and Athwal.

[114]

Moreover,
    both of the appellants experts conceded that if surgery was to be performed in
    a matter of days, a splint or bivalved cast would have been the appropriate
    course of action. The trial judge found, at para. 218, that the evidence
    clearly establishes that the plaintiff needed external fixation surgery. At
    para. 215, she found that the evidence did not support Dr. Athwals
    understanding that surgery was not required. Given those findings, it is
    difficult to see how the appellant could have escaped liability even on the
    basis of the evidence of his own experts.

[115]

In
    addition to the errors I have mentioned, there is one other significant alleged
    error that falls into the category of improper intervention. The trial judge
    found that the appellant had breached the standard of care by failing to
    provide the respondent with adequate instructions as to the risk of compartment
    syndrome developing. That issue was not pleaded by the respondent and it was
    only at the insistence of the trial judge that the expert witnesses addressed
    it in their evidence. I agree with the appellant that the trial judge erred by
    entering into an area that had not been raised by the parties and was not
    addressed by the experts in their reports.

[116]

However,
    it is difficult to see how the error as to the adequacy of the instructions
    given to the respondent had any material impact on the outcome given the trial
    judges finding that the appellant breached the standard of care by applying a
    full circumferential cast.

[117]

After
    giving the matter careful consideration, I have come to the conclusion that the
    errors made by the trial judge did not give rise to a substantial wrong or
    miscarriage of justice. I do not think that her interventions rendered th
e trial unfair. Even without her errors, she
would necessarily have reached the same result and
    therefore, pursuant to s.
134(6) of the
Courts
    of Justice Act
,
a new trial is not warranted:
Khan v. College of Physicians and Surgeons
(1992),
9 O.R. (3d)
    641
(C.A.), at p. 676.

[118]

The
    trial judge gave comprehensive reasons that carefully considered the evidence
    and the arguments advanced by the appellant. She gave convincing reasons, well
    supported by the record, explaining why the opinion of Dr. Richards was to be
    preferred to that of Drs. Taylor and Athwal. In my view, there has been no
    substantial wrong or miscarriage of justice.

CONCLUSION

[119]

For
    these reasons, I would dismiss the appeal. If the parties are unable to agree
    as to costs, we will receive brief written submissions.

Released: R.J.S. January 29, 2015

Robert Sharpe J.A.

I agree John Laskin J.A.

I agree Janet Simmons J.A.

[120]

APPENDIX:

The Advocates
    Society,
Principles Governing Communications with Testifying Experts
(Toronto: The Advocates Society, 2014)


COURT OF APPEAL FOR ONTARIO

CITATION: Murphy v. Murphy, 2015 ONCA 69

DATE: 20150130

DOCKET: C59040

MacFarland, Hourigan, Benotto JJ.A.

BETWEEN

Shelley Leigh Murphy

Appellant

and

Timothy Laurent Murphy

Respondent

Edwin A. Flak and Amit S. Dror, for the appellant

Gary S. Joseph and Ryan M. Kniznik, for the respondent

Heard and released orally: January 26, 2015

On appeal from the order of Justice Paul Perell of the Superior
    Court of Justice, dated November 12, 2013.

ENDORSEMENT

[1]

The parties to this appeal have been involved in expensive, acrimonious and
    protracted family law litigation. To their credit, they agreed to refer all
    matters to mediation-arbitration with Malcolm Kronby Q.C.

[2]

After a 23 day hearing Mr. Kronby released an award which divided the
    success.  Consequently, there was an appeal and a cross-appeal to the Superior
    Court of Justice.

[3]

The appeal judge dealt with all the issues. Again success was divided.
    Predictably, both parties sought leave to appeal to this court. Leave was
    granted to the appellant on one issue only: the arbitrators award of
    retroactive child support which had been overturned by the appeal judge.

[4]

At the conclusion of the appellants argument, her counsel submitted
    that the court should not permit the respondent to make submissions on the
    appeal. Mr. Flak said that the costs that this court had awarded against the
    respondent when his application for leave to appeal was dismissed remained
    unpaid; he had not disclosed his income tax returns from 2009 to the present;
    and he had paid no child support since January 2014.  At the conclusion of the
    appellants submissions, the court retired for the luncheon recess.  On
    resuming, the court asked counsel for the respondent why, in the circumstances,
    his client should be granted an audience.

[5]

Mr. Joseph reported that his client had paid the outstanding costs
    order by presenting a cheque to the appellant just before court resumed. He had
    no reasonable explanation to offer as to why his client had unilaterally
    stopped paying child support. As for his clients failure to produce his income
    tax returns, Mr. Joseph argued that his clients income was complicated,
    composed as it was in some years of proceeds from the cashing in of shares,
    options and so on. Complicated as the calculation of the respondents income
    may have been, it is no excuse whatsoever for his failure to produce copies of
    the income tax returns he had filed for each of those years.  The very fact
    that he had filed these returns was only revealed in court in response to
    questions from the panel.  It was the first that the appellants counsel was
    aware of their existence.

[6]

In these circumstances, the court determined that to hear the
    respondents submissions would be to reward his deliberate and wilful
    misconduct.  The court refused to entertain submissions from the respondent.

[7]

With respect to the merits of the appeal, there was ample and compelling
    evidence before the arbitrator that the respondent had misrepresented his income
    while paying child support. The arbitrator made findings as to the actual
    income of each parent and then established what amount of child support should
    have been paid.  He said:

Considering the objectives as set out in section 1 of the
Guidelines,
the mandate is to establish a fair standard of support for [the child] that
    ensures that [she] benefit from the financial means of the parents.

[8]

Applying these principles, the arbitrator determined that the respondent
    ought to have been paying $8,000 per month for child support, a figure below
    the Guideline amount.  He then calculated that the difference between what the
    respondent did pay and what he ought to have paid was $274,420.00. He ordered this
    amount and used the term retroactive child support to describe it.

[9]

The appeal judge concluded that the arbitrator erred in law because he
    did not conduct an analysis of the retroactive support issue in accordance with
    the criteria established in
D.B. S v. S.R.G
. [2006] S.C.C. 37.  This
    case holds that, in determining retroactive child support, the factors to be
    considered are:

·

the reason that support was not sought earlier;

·

the conduct of the payor; the circumstances of the child; and

·

the hardship to the payor.

[10]

It
    is not clear that, in the circumstances of this case, a
DBS
analysis is
    required. Nor is it clear to what extent its application was argued before the
    arbitrator. It was not expanded upon in the arbitrators reasons, which the appeal
    judge determined were insufficient.

[11]

In
    our view, the appeal judge erred in law in two ways.  First, he applied the
    wrong test to the sufficiency of the arbitrators reasons. He cited criminal
    cases without regard to the goals of efficiency and expediency in the
    arbitration context. These goals have particular significance in a family law
    matter where finality is important especially when a child is involved.
    Moreover
Hickey v. Hickey
[1999] 2 S.C.R. 518 provides that significant
    deference must be given in relation to the determination of support orders.
    This principle recognizes that the discretion in making the order is best
    exercised by the person who heard the parties directly. This is of particular
    significance when the parties select an arbitrator well known and respected for
    his expertise and experience in the area of family law.  In any event, in our
    view, the reasons although brief, do explain how he calculated the award and
    why he made it.

[12]

The
    second error of the appeal judge was to determine as a matter of law that
DBS
applied to the circumstances here, and having made that determination, to disallow
    the award without performing the analysis himself or referring the matter back
    to the arbitrator for the analysis.

[13]

In
    our view, the retroactive child support award should be referred back to the
    arbitrator. He will determine whether the criteria of
DBS
apply and if
    so, he is in the best position to determine whether or not his award requires
    adjustment and if so by how much.

[14]

The
    appeal is allowed. The issue of retroactive child support is referred back to
    the arbitrator for reconsideration.  He is to determine whether or not in the
    circumstances of this case, the
DBS
factors apply and if so, whether any
    adjustment to his award is required.  Pending that determination the
    arbitrators award of $274,420.00 is restored.

[15]

Costs
    of the application for leave to appeal are fixed in the sum of $7,500 and costs
    of the appeal are fixed in the sum of $25,000. The appellants full indemnity
    costs of the proceedings before the appeal judge were approximately $98,000.
    The judge below ordered no costs in view of the divided success in the Superior
    court.  In view of the appellants success in this court, she should have some
    portion, although not all of her costs below.  We award the sum of $10,000 for these
    costs. The total costs awarded to the appellant are therefore fixed in the
    amount of $42,500 inclusive of disbursements and HST. The costs may be enforced
    by the Family Responsibility Office as an incidence of child support.

J. MacFarland J.A.

C.W. Hourigan J.A.

M.L. Benotto J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Neophytou v. Fraser, 2015 ONCA 45

DATE: 20150123

DOCKET: C59217

Hoy A.C.J.O., van Rensburg and Brown JJ.A.

BETWEEN

Loulla Neophytou

Plaintiff (Respondent)

and

Leslie
    Ann Fraser, also known as

Leslie Ann Neophytou, also
    known as Leddi Neophytou

Defendant (Appellant)

Fida Hindi and Lane Krainyk, for the appellant

James F. Diamond, for the respondent

Heard and released orally: January 19, 2015

On appeal from the order of Justice P. Theodore Matlow of
    the Superior Court of Justice, dated July 17, 2014.

ENDORSEMENT

[1]

The appellant is the defendant to an action on a debt. It is alleged
    that the respondent, who resides in Ontario, made a loan to the appellant and
    her husband, who is now deceased. The appellant, a resident of the United
    States, is the daughter in law of the respondent. She appeals from the
    dismissal of her motion to dismiss or stay the action for lack of jurisdiction.
    The appellant argues that the motion judge erred in concluding that Ontario has
    jurisdiction
simpliciter
because none of the presumptive connecting
    factors recognized in
Club Resorts Ltd. v. Van Breda
, 2012 SCC 17 are
    present, and that the motion judge erred in considering irrelevant factors.

[2]

In brief reasons, the motion judge rested his decision on the following
    factors:

·

the plaintiff resides in Ontario;

·

the money loaned was sent from Ontario; and

·

the loan agreement required the respondent to be repaid, from
    which the motion judge inferred that the repayment was to be made in Ontario.

[3]

The reasons do not specifically identify the satisfaction of any of the
    presumptive factors listed in
Van Breda
. Nevertheless there was a
    presumptive factor made out on the evidence. Although a written contract was
    signed in Florida, this followed an agreement that had been reached in Ontario,
    under which the plaintiff advanced the funds to the defendant.

[4]

A contract is made where the offeror receives confirmation of acceptance
    by the offeree. The only reasonable inference on all of the evidence in the
    record is that the respondent was in Ontario when she offered by telephone to
    lend funds to her son and the appellant, and she was also in Ontario when she
    received confirmation, again by telephone of their acceptance of her offer.
    Although the appellants husband had asked his mother for financial assistance
    when they were in Florida together, it was not until the respondent returned to
    Ontario that she decided to advance $500,000 and communicated this, as well as
    the terms, to her son by telephone. She then proceeded on the basis of their
    agreement to cash in certain investments to fund two advances that were made
    well before the written memorandum of agreement was signed.

[5]

A contract connected with the dispute was therefore made in Ontario.
    This is a presumptive factor as recognized in
Van Breda
.

[6]

In this case, the appellant has not rebutted the presumption of
    jurisdiction arising from that presumptive connecting factor by establishing
    facts that demonstrate that this factor does not point to any real
    relationship between the subject matter of the litigation and the forum or
    points only to a weak relationship between them:
Van Breda
, at para.
    95.

[7]

The appellant concedes that once jurisdiction
simpliciter
is
    established, Ontario is the convenient forum.

[8]

The appeal is accordingly dismissed. Costs to the respondent in the
    agreed amount of $8,000, inclusive of HST and disbursements.

Alexandra Hoy A.C.J.O.

K.
    van Rensburg J.A.

David
    Brown J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: O'Dowda v. Halpenny, 2015 ONCA 22

DATE: 20150119

DOCKET: C59091

Weiler, Feldman and Benotto JJ.A.

BETWEEN

Robert ODowda and Miriam ODowda

Plaintiffs (Appellants)

and

Donald Halpenny, Elizabeth Halpenny, Paul
    Desalaiz, Derek Dier, Sutton Group Select Realty Inc., The Corporation of the
    City of London,
Gordon
    Stanley Morton, 592987 Ontario Limited
, G.S. Morton &
    Associates Ltd., The Estate of the Late Gordon Dale Maddock, Basil George
    Tambakis, Harris-Troy Design Build Limited, London Roof Truss Inc., Thorndale
    Roof Systems Inc., Universal Forest Products, Inc., Courtney Roofing Ltd. and
    Farncomb Kirkpatrick & Stirling Surveying Ltd.

Defendants (
Respondents
)

Sean Dewart, for the appellants

Jennifer Stirton, for the respondents

Heard: December 11, 2014

On appeal from the judgment of Justice Andrew J. Goodman of
    the Superior Court of Justice dated June 20, 2014.

ENDORSEMENT

[1]

The issue on this appeal is whether the motion judge erred in granting
    summary judgment dismissing the appellants claim against the respondents
    Morton and the numbered company on the basis it was barred by the 2-year
    limitation period under the
Limitations Act, 2002
, S.O. 2002, c. 24,
    Sched. B.

[2]

The appellants purchased a house from the Halpennys in 2003 and
    discovered structural problems shortly thereafter. They retained experts in the
    fall of 2003 to examine the problems and prepare a report. The Phase 1 report
    was delivered in May 2004. It identified some problems and recommended further
    investigation. One of the problems was with the load-bearing ability of the
    roof.

[3]

Following the Phase 1 report, the appellants commenced an action against
    the vendors of the house, their realtor, two real estate agents and the city of
    London. They also asked the experts to do the recommended further
    investigation. The Phase II report is dated February 28, 2005. The Phase II
    report identified further problems and raised safety concerns about the roof.

[4]

At examinations for discovery held in March 2006, Donald Halpenny, one
    of the defendants in this litigation, testified that the respondents on this
    appeal had designed the house and prepared the working drawings. On December 19,
    2006, the appellants moved to amend their claim to add the respondents as
    defendants for negligent design of the house causing it to be a danger to
    safety.

[5]

The respondents moved for summary judgment dismissing the action against
    them on the basis that it was statute-barred because they were added more than
    two years after the cause of action arose. The motion judge granted summary
    judgment, concluding that 1) the appellants knew or should have known that the
    negligent design of the house created a condition of danger to safety upon
    reviewing the Phase 1 report, as it identified structural deficiencies that
    could be dangerous, even though the words danger and safety were not used; and
    2) the appellants knew or should have known that the respondents had designed
    the home when the appellants received the plans stamped with the name G.S.
    Morton and Associates shortly after taking possession of the house in May 2003.

[6]

On this appeal, the appellants submit, first, the motion judge erred in
    his two findings, and second, based on the record before him, both matters
    raised genuine issues requiring a trial: see
Hyrniak v. Mauldin,
2014
    SCC 7, [2014] 1 S.C.R. 87
.
The appellants also requested that this
    court substitute its own determination of discoverability.

[7]

The first issue turns on the application of the law as set out by the
    Supreme Court of Canada in
Winnipeg Condominium Corporation No. 36 v. Bird
    Construction Co
.,

[1995]
    1 S.C.R. 85, at para. 43, as follows:

I conclude that the law in Canada has now progressed to the
    point where it can be said that contractors (as well as subcontractors,
    architects and engineers) who take part in the design and construction of a
    building will owe a duty in tort to subsequent purchasers of the building if it
    can be shown that it was foreseeable that a failure to take reasonable care in
    constructing the building would create defects that pose a substantial danger
    to the health and safety of the occupants.  Where negligence is
    established and such defects manifest themselves before any damage to persons
    or property occurs, they should, in my view, be liable for the reasonable cost
    of repairing the defects and putting the building back into a non-dangerous
    state.

[8]

In other words, a subsequent purchaser of a building has an action in
    tort against the designers and constructors of the building for defects that
    pose a substantial danger to health and safety. Because of this requirement, before
    the limitation period begins to run, a plaintiff must have known or ought to
    have known that the construction problems or defects with the building at issue
    pose a substantial danger to health and safety.

[9]

The motion judge determined, based on his own reading of the Phase 1
    Report, that the appellants should have known that the defects identified
    created such a danger. However, in reaching that conclusion, the motion judge
    failed to avert to the sworn evidence filed on the motion. The appellants
    lawyer (not appeal counsel) swore an affidavit dated April 1, 2014. Her
    affidavit was not challenged and she was not cross-examined. She swore, at
    para. 22, that the Phase II report was her first information that the house
    may be dangerous by design:

I was aware of the law with respect to negligence in the design
    and construction of the buildings, in general, based on the Supreme Court of
    Canadas decision in
Winnipeg Condominium Corporation No. 36
v
. Bird Construction Co
.,
[1995] 1 [S.C.R.] 85, and I knew that a
    cause of action by a third party owner in negligence with respect to alleged
    building defects was only complete if the breach of the standard of care left
    the building in a
dangerous condition
. There could be
    no recovery for pure economic loss. The Phase II Investigation Report indicated
    that the roof was seriously overstressed and that a competent designer should
    have recognized the need to consider greater snow accumulations in the valleys
    than what was used in the original building. This was the first information I
    had that the house may be dangerous by design. [Emphasis in original.]

[10]

It
    was an error of law for the motion judge to ignore the uncontested sworn
    evidence on the central matter in issue without giving any reasons for so
    doing. While the judge is entitled to reject such evidence, he would have to
    give clear reasons for making such a finding. In this case, because the motion
    judge did not refer to the lawyers affidavit, his reasons for implicitly rejecting
    the lawyers evidence are not apparent.

[11]

Given
    this error, the order for summary judgment dismissing the claim as statute-barred
    must be set aside. On the record before the motion judge, the parties could
    have asked him to conduct further fact-finding procedures to determine the
    issue of when the dangerousness of the structure was known or could have been
    known. As that was not done, the most appropriate order at this point is to
    leave the limitation issue as a genuine issue for trial.

[12]

The
    appeal is allowed and the summary judgment is set aside.

[13]

Costs
    were agreed as follows: costs of the appeal fixed at $8500 inclusive and costs
    of the motion fixed at $12,000 inclusive, payable within 60 days to the
    appellants.

K.M. Weiler J.A.

K. Feldman J.A.

M.L. Benotto J.A.