Law Times

LAW TIMES 12 COVERING ONTARIO'S LEGAL SCENE | MARCH 4, 2019 www.lawtimesnews.com the vulnerable injured people are fairly compensated," he said. "We will look at this evidence and develop a solution that makes sense." Brian Gray, spokesman for the Ministry of the Attorney General, said in an email to Law Times on Feb. 13, "It is too soon to speculate about what those changes may be. We will need to look at the evidence and develop solutions that make sense for the people. The government will be very interested in hearing more and obtaining the facts around what is driving insurance costs for municipalities. "The government will have more to say about the process and the timing for the consulta- tions soon." Gray wrote in a later email that, right now, the government plans to focus on municipalities' concerns about rising insurance costs and liability chill, along with the need to make sure plaintiffs are fully compensated. Allen Wynperle, president-elect of the Ontario Trial Lawyers As- sociation, says the association would "absolutely" be willing to participate in the review. Any changes need to be informed by evidence, he says. "Joint and several liability has a lot of positive attributes," he says. "It allows increased access to justice. It allows efficiencies within the justice system. If we're going to do something to alter that, we should see a clear connection between the cost of insurance and the cost of the payout and joint and several li- ability." Cronyn says joint and several liability creates an incentive for good risk management. "The theory is that, if you re- ally take full advantage of your risk management opportunity, not only will your corporation or your insurer not be exposed to the liability [but] you'll avoid the injury in the first place. Ev- eryone's a winner in that case." Municipalities aren't up- set about having to pay when they've been found to be negli- gent, says Pat Vanini, executive director of the Association of Municipalities of Ontario. The organization has repeatedly asked the government to change joint and several liability. "If municipal governments are at fault — they'll deal with it," she says. Municipalities have to pay le- gal fees every time they're named in a lawsuit, even if they're not found to be negligent, she says. That's why they're concerned about joint and several liability. Robert Deutschmann, a personal injury lawyer at Deutschmann Law in Kitch- ener, Ont. and former mayor of North Dumfries, Ont., says joint and several liability shouldn't change. He says municipalities are always trying to save money but joint and several liability was not raised as a contributing factor in insurance costs when he was a municipal politician. "A plaintiff shouldn't be hurt because of the initial injury and then hurt again because they can't collect their damages from the defendants who are as a group responsible for the plain- tiff 's loss," he says. LT Incentive for good risk management Continued from page 10 Trial judge has gatekeeper role Continued from page 11 tients had suffered from childhood sexual abuse does not, of course, make him an expert in the field," the decision says. "Dr. Smith was not qualified to offer an opinion of the problems typical of survivors of sexual abuse or as to the relationship between the alleged sexual abuse and Mr. Imeson's subsequent difficulties." Richard Bogoroch, managing partner at Bo- goroch & Associates LLP in Toronto, calls the rul- ing "a very well-reasoned and important decision enunciating the scope of participant expert evidence" that "gives impor- tant guidance" about participant experts. He says it reinforces that participant experts can only pro- vide opinion evidence based on their observations of and treatment of the plaintiff. Their evidence must be "anchored by their clinical records and consultation reports." Participant experts must also be qualified in the area in which they are giving expert opinion, he says. Lindsay Charles, an associate at McLeish Orlando LLP in Toronto, says the decision "digs deep into the analysis of the proper scope of participant expert testimony at trial." "It re-iterates Westerhof and in doing so it makes a strong indication that the Westerfhof decision won't be expanded or watered down when it comes to the scope of participant experts," Charles says. The decision also shows the importance of analyzing each expert's opinion to determine if they're admissible, says Ross. "Sometimes, we get lost in this concept where expert evi- dence is thought of [as] an all-or-nothing proposition," he says. "This case says, in certain situations where it can be con- troversial, you have to look at the proffered opinion on an opinion-by-opinion basis but also with a view to its purpose." During the 2016 trial, Smith's reports were admitted, in their entirety, into evidence. These reports were based on handwritten notes made dur- ing treatment sessions with Imeson. According to the deci- sion, Imeson requested Smith to make the reports in April 2016. After the reports were made, the original handwritten notes were destroyed in accordance with institutional policy, the decision says. "According to Dr. Smith, he made thematic connections in his reports that were not present in his handwritten notes," the decision says. At trial, Smith read from his reports and was allowed to give an opinion on anything they contained. "As the trial judge recognized, great care was required to ensure that Dr. Smith did not provide any evidence that ex- ceeded the scope of proper opinions to be offered by a partici- pant expert," the decision says. "Unfortunately, she permitted that to happen by admitting Dr. Smith's unredacted reports into evidence and permitting him to testify about anything that was contained in the re- ports." The decision notes that the trial judge focused on mak- ing sure Smith did not give opinions on matters not in the reports. "She did not focus on the opinions that were in the reports, and consider whether any or all of the contents of the reports exceeded the scope of the proper opinions to be of- fered by a participant expert," the decision says. The trial judge correctly recognized the limits of partici- pant experts, but "she permitted Dr. Smith to exceed his prop- er role by allowing him to testify about anything contained in his reports, and in admitting the reports into evidence, without first examining what opinions were included in the reports, and the purpose for which it was proposed that the jury consider such opinions." Bogoroch says this decision is a reminder of the impor- tance of a trial judge's gatekeeper role in determining what evidence is admissible. "The gatekeeper role, which involves a cost-benefit analy- sis, is critical to the admissibility of evidence," he says. LT FOCUS Richard Bogoroch says a recent ruling reinforces that participant experts can only provide opinion evidence based on their observations of and treatment of the plaintiff. 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