this test and Dr. Bail considered this to be an inconsistency. The
other logical conclusion, that Ms. Bruff-McArthur was consistently weak in performing math exercises, seems not to have
crossed his mind.
 In short, the tests were deliberately interpreted to fit a
theory of mendacity. Unless she got every question on every test
correct, she was inconsistent and, in Dr. Bail’s opinion, inconsistency equated to an untruthful subject.
 A third concern relates to a subtle point that demonstrates
Dr. Bail’s fundamental misconception of his role. He questioned
Ms. Bruff-McArthur regarding her physical limitations. It is,
of course, perfectly appropriate for a psychiatrist conducting an
independent medical examination to ask questions about a subject’s physical injuries and resultant limitations. That information
could provide useful context for the examination. However,
Dr. Bail was quite open about the fact that he asked the questions
for an entirely different purpose. He testified that he asked about
physical limitations so that he could compare those answers to
any future surveillance evidence he may receive. This is consistent with how Dr. Bail regarded the purpose of his review of the
medical records. There is a troubling pattern that suggests that
he understands his primary role to be to expose inconsistencies
and not to provide a truly independent assessment of Ms. Bruff-McArthur’s psychiatric condition.
 Fourth, when Dr. Bail was cross-examined about his
emphasis on perceived inconsistencies, he denied ignoring those
parts of the medial records that did not fit his diagnosis. He
explained their absence from his report on the basis that “you
can’t put everything in your report”. Later in his cross-examination, Dr. Bail stated: “I’m interested in the things that
don’t corroborate, not the things that do corroborate.” Again, this
testimony makes plain Dr. Bail’s lack of awareness of the need to
be impartial as an expert witness.
 Before turning to what the trial judge should have done
in face of this testimony, I wish to correct one of his findings. The
trial judge stated in his reasons on the threshold motion that
Dr. Bail did not have any notes of his examination of Ms. Bruff-McArthur. Based on this observation, he concluded that Dr. Bail
was making his testimony up as he went along to support
 That is not accurate. Dr. Bail did have notes. Indeed, the
trial judge ruled that he could refer to them as he testified. It is
not a fair conclusion that Dr. Bail was making up his testimony.
Having reviewed his evidence carefully, I am of the view that
there is no basis to conclude that Dr. Bail was anything but