The decision of Daggitt v. Campbell, 2016 ONSC 2742 was recently released. Madam Justice MacLeod-Beliveau was asked on a motion to compel a plaintiff to attend a defence psychiatry examination. The plaintiff opposed the motion on two grounds. First there was insufficient evidence to support the need for a psychiatry assessment. Second, the plaintiff argued that the expert proposed had demonstrated “clear and definitive” defence bias in previous cases.
The motion was disposed of by Justice MacLeod-Beliveau on the basis that there was insufficient evidence to warrant the medical examination. However, Justice MacLeod-Beliveau also commented on the suitability of the expert proposed. The comments while obiter make it clear that in Justice MacLeod-Beliveau’s opinion an expert could be disqualified where bias can be demonstrated. Justice MacLeod-Beliveau noted that the Supreme Court of Canada has held that an expert witness who was unwilling or unable to comply with an expert’s duty to the Court should not be permitted to give evidence.
Justice MacLeod-Beliveau also observed that rule 33.02 would allow for an argument to the court that they should exercise their discretion and consider whether a proposed health practitioner is biased and therefore failed to qualify as an expert.
When screening defence requests for medical examinations, plaintiff’s counsel should be cognizant of these comments and take the time to review a proposed expert’s past reports to determine whether an argument of bias could be argued to disqualify an expert from testifying.
Please click on the attached link to read the complete decision:
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Associate with the Personal Injury and Litigation Group
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