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June 29, 2011

Disclosure of Surveillance - 2

Aherne v. Chang, 2011 ONSC 3846

This is an appeal from Master Short’s recent decision on the issue of ‘when is privilege waived?’.

The defendants argued that if they provided surveillance material to an IME doctor, the privilege was not waived until the doctor released the report. The plaintiff argued that the privilege was waived as soon as the surveillance was given to the IME doctor. The defendant seems to want to avoid having the plaintiff’s lawyer review the surveillance before the plaintiff goes to the IME to make sure that the plaintiff doesn’t embellish during the IME.

It seems that the defendant in this case could have avoided this entire problem if they simply held onto the surveillance materials and let the IME doctor assess the plaintiff and prepare the report. Then, after the report is released, the defendant can provide the IME doctor with the surveillance, and ask the IME doctor if the surveillance changes his/her opinion.

Thanks to M. Edward Key for bringing this appeal to our attention and for the comments.

June 22, 2011

Unidentified Motorist - Corroborating Evidence

In our post of July 27, 2010, we blogged about the case of Pepe v. State Farm Mutual Automobile Insurance Co., [2010] O.J. No. 2138 (S.C.J.) and whether a passenger in an insured’s motor vehicle was an “independent witness” who can corroborate the insured’s evidence concerning the involvement of an unidentified motorist for the purposes of the OPCF 44R Family Protection Endorsement. The motions judge held that the passenger could corroborate the insured’s claim for the purpose of OPCF 44R coverage, despite the fact that she was the insured's girlfriend and was also suing State Farm for damages caused by an unidentified driver.

The Court of Appeal has upheld the motions judge's decision.

Doherty J.A. reviewed the history of requiring corroboration and cited Chief Justice Dickson, in Vetrovec v. The Queen, [1982] 1 S.C.R. 811 at 826, for identifying the rationale for a corroboration requirement:

"The reason for requiring corroboration is that we believe the witness has good reason to lie. We therefore want some other piece of evidence which tends to convince us that he is telling the truth."

Doherty J.A. held that State Farm’s assertion that it is the witness who must be independent, in the sense of neutral to the outcome, was wrong. The independence requirement in the context of corroboration has always referred to the independence of the evidence and not to the neutrality of the witness. The witness’s neutrality or lack thereof is relevant to the ultimate credibility of the witness’s evidence, which is for the trial judge to assess.

June 15, 2011

Disclosure of Surveillance

If surveillance is provided to an independent medical assessor, does it have to be produced to the plaintiff, even if the assessor does not rely on it in forming his or her opinion?

In Aherne v. Chang, [2011] O.J. No. 1880 (S.C.J.), the plaintiff sued for injuries alleged to have been caused as a result of medical treatment provided by the defendant. On the defendant's examination for discovery, his counsel confirmed that there had been no surveillance undertaken but refused to answer questions pertaining to disclosure of any future surveillance that might be undertaken after the discoveries. Counsel for the defendant took the position that privilege over documents released to a medical examiner, is waived only if the document is relied upon by the medical examiner, and not at the time that the document is released to the medical examiner. The plaintiff sought to obtain copies of any surveillance that was released by the defendant to a physician or healthcare practitioner retained for purposes of a defence medical assessment.

Master Short held that from the moment of his retainer to conduct a Rule 33 examination, a defence medical examiner owes his or her primary duty to the court. It is inappropriate and unseemly for the court to prevent any party before it from having contemporary access to the information provided to that expert.

Master Short summarized the following principles emerging from the rules and previous jurisprudence:

(a) if information is sent to an expert, then the same information should be sent to the opposing party to allow that party to test the expert’s opinion;
(b) an opposing party is entitled to the facts on which the expert’s opinion is based;
(c) so long as an expert read a document sent to him or her, then that document was considered, such that it is a “finding” that must be produced;
(d) the privilege claimed over a document sent to an expert is waived at the time that it was decided to rely on that expert’s opinion or in circumstances where privilege is waived over the report, even if the waiver was inadvertent;
(e) by sending a defence medical assessor portions of surveillance, privilege over the full surveillance video or all photographs is waived.

Master Short held that privilege is lost at the point the material is sent to an expert retained for the purpose of a Rule 33 examination. It was therefore held that the defendant is obliged to provide a copy of any surveillance of the plaintiff concurrently with its release to any defence medical examiner.

June 8, 2011

Thanks to Barb Legate for this comment on our post on McNeill v. Filthaut, regarding the current debate over the testimony of accident benefits assessors:

"A point that seems to be missed in some of these analyses is that notwithstanding the provisions of Rules 4 and 53, those rules are merely a codification of the law that stated with Amertek. Rules 4 and 53 are part of the Mohan criteria, and fall under the "any exclusionary rule" branch. So, although there are exclusionary rules for experts a party retains, that does not end the analysis. If a witness is to give opinion evidence, the witness has to be qualified as an expert. Part of the qualification exercise is to enquire into bias. Bias also enters into the relevance assessment. See CA decision in Abbey.

IMHO, those cases that strain to differentiate treating opinions from AB opinions from DAC opinions and retained expert opinions have missed the basic law: you want to call a witness to give an opinion, then follow Mohan. No fancy differentiations needed."

June 6, 2011

Special Circumstances Doctrine

This is a case which comments on the Special Circumstances doctrine which we have been reviewing recently in our last two blog entries. This case was brought to our attention by Dana Paladino, legal counsel at the City of Windsor. Thanks Dana!

Wood Waste Solutions Canada Inc. v. Associated Paving Company, 2010 ONSC 6280 (CanLII). The court indicates that the special circumstances doctrine is potentially available where an old limitation period applies.

It is surprising that this wouldn’t have been mentioned in Chadowski.

June 4, 2011

This is further to our May 25th blog of last week on the Special Circumstances Doctrine.

Thanks to Edward Key of O'Donnell, Roberston & Sanfilippo, Toronto, for this comment:

My understanding is that “special circumstances” is still alive for causes of action that pre-date January 1, 2004.

For example, in Parent v. Janandee Management Inc. (2009) 82 C.P.C. (6th) 321 (Ont. Master), Master Short wrote:

[29] For cases dealing with events occurring after January 1, 2004, the Ontario

Court of Appeal has held in Joseph v. Paramount Canada's Wonderland (2008),

90 O.R. (3d) 401 (Ont. C.A.) (at paragraphs 27 and 28) that the equitable concept

of special circumstances permitting an extension of time for suit, no longer

applies in Ontario. As this case is based upon an occurrence that took place prior

to January 1, 2004, the Court of Appeal's decision in Meady v. Greyhound

Canada Transportation Corp., 2008 ONCA 468 (Ont. C.A.) does hold that the

doctrine of special circumstances may be available to the plaintiffs in this in

seeking the addition of a party to litigation after the expiry of the limitation