of the two expert witnesses called by the defence was B, a psychiatrist who conducted an independent medical examination of the plaintiff. Despite having serious reservations about B’s methodology and independence, the trial judge
qualified him as an expert. When B testified, it became apparent that he had
crossed the line and become a partisan advocate for the defendant. His report
and his testimony essentially amounted to an attack on the plaintiff’s credibility.
In keeping with his usual methodology, he had examined the plaintiff before
reviewing her medical records, and had then gone through the medical records
looking for discrepancies between what she told him and what was in the records. Those discrepancies formed the largest portion of his report. The trial judge
did nothing to exclude B’s opinion evidence or alert the jury to the problems with
his testimony. The jury assessed general damages at $23,500 and rejected all
other heads of damages. The plaintiff appealed.
Held, the appeal should be allowed.
The trial judge did not err in ruling that B could not be cross-examined regarding prior court and arbitral findings made against him.
The trial judge failed to properly discharge his gatekeeper duty at the qualification stage. He did not perform a cost-benefit analysis with respect to B’s evidence because of his apparent erroneous belief that he was obliged to qualify B
as an expert if B met the Mohan threshold. Had he done so, he would have concluded that the risks of permitting B to testify far outweighed any potential benefit from the proposed testimony. It was evident from a review of B’s report that
there was a high probability that he would prove to be a troublesome expert
witness who was intent on advocating for the defence and unwilling to properly
fulfill his duties to the court.
It became obvious during B’s testimony that he understood his primary role to
be to expose inconsistencies and not to provide a truly independent assessment of
the plaintiff’s psychiatric condition. Where, as here, an expert’s eventual testimony removes any doubt about his independence, the trial judge must not act as
if he were functus, but must continue to exercise his gatekeeper function. The
court has residual discretion to exclude expert evidence even after admitting it,
if later in the trial prejudice emerges that was not apparent at the time of admission. In this case, the trial judge could have advised counsel that he was going to
give either a mid-trial or final instruction that B’s testimony would be excluded
in whole or in part, received submissions from counsel in the absence of the jury,
and proceeded as he saw fit. Alternatively, he could have asked for submissions
from counsel on a mistrial and ruled accordingly. The admission of B’s testimony
resulted in a miscarriage of justice.
White Burgess Langille Inman v. Abbott and Haliburton Co.,  2 S.C.R.
182,  S.C.J. No. 23, 2015 SCC 23, 18 C.R. (7th) 308, 470 N.R. 324,
383 D.L.R. (4th) 429, 67 C.P.C. (7th) 73, 360 N.S.R. (2d) 1, 2015EXP-1385, J.E.
2015-767, EYB 2015-251384, 251 A.C. W.S. (3d) 610, consd
Other cases referred to
Brisco Estate v. Canadian Premiere Life Insurance Co. (2012), 113 O.R. (3d)
161,  O.J. No. 5732, 2012 ONCA 854, 16 C.C.L.I. (5th) 45, 82 E. T.R. (3d)
211, 299 O.A.C. 283, 224 A.C.W.S. (3d) 349; Browne v. Dunn (1893), 6 R. 67
(H.L.); Bruff-Murphy (Litigation guardian of) v. Gunawardena,  O.J. No. 6,
2016 ONSC 7,  I.L.R. I-5835 (S.C.J.); Desbiens v. Mordini,  O.J.
No. 4735, 135 A.C.W.S. (3d) 90, 2004 CanLII 41166 (S.C.J.); Gabremichael v.
Zurich Insurance Co.,  O.F.S.C.I.D. No. 198; Morrison v. Greig,  O.J.
No. 225, 46 C.C.L.T. (3d) 212, 154 A.C.W.S. (3d) 865 (S.C.J.); Pietkiewicz