Law Times

Page 6 July 7, 2014 • Law Times www.lawtimesnews.com COMMENT Gaps in construction law or those who wonder why the construction law bar has ex- pressed concern about a potential looming lack of judicial ex- pertise to handle construction lien matters, they only need to look at a late June Superior Court decision that took a master to task for his decision in the case. "While the master said that he was interpreting the act in accor- dance with its purpose, he manifestly failed to do so," wrote Justice Frederick Myers of a retired master's report dealing with a reference under the Construction Lien Act in RSG Mechanical Inc. v. 1398796 Ontario Inc. In his June 27 endorsement, Myers revised the master's report on a legal dispute arising from the financial troubles plaguing a town- house construction project. Among other things, he criticized the master for suggesting that in order for mortgagees to maintain their priority over liens beyond the limitation to holdbacks, they must put a failing project into receivership or liquidate it under a power of sale. "The master interpreted the statute to give a key player a skewed incentive favouring the failure of the developer — or at least limiting efforts to save the project in the best interests of all," Myers wrote in his endorsement. "His interpretation incentivizes the mortgagees to cause the fail- ure of the debtor and increase the risk of non-payment of the trades — the very social ills the statute is designed to avoid." Myers also took the master to task for reserving his decision for almost 4-1/2 years after trial. "He has unfairly dealt a setback [to] Courts should relent on recording defence medical examinations t seems odd that we continue to de- bate the recording of litigation-related medical assessments while video and audiotaping become a staple of society. The latest skirmish in this debate arises in Alladina v. Calvo, a May 6 deci- sion of Superior Court Master Benjamin Glustein allowing a defence motion to compel the plaintiff to attend a medi- cal assessment before a psychiatrist and dismissing the plaintiff 's motion to con- duct the assessment by a different prac- titioner or, alternatively, to record it. In doing so, Glustein followed pre-2010 decisions holding that recording defence medical assessments shouldn't be routine and is only warranted on the basis of "sub- stantial and compelling reasons." More significantly, he refused to follow the more modern approach exhibited by Master Donald Short in Bakalenikov v. Semkiw. Short considered the amendment to Rule 53.03 that says experts must not be advocates for either side. He noted a Superior Court judge had previously criticized the psychiatrist chosen by the defence to conduct an assessment of the plaintiff for providing his evidence as "an advocate for the party calling him as a witness" and who had his opinions "disregarded by the court for bias and advocacy for the defence" on at least three occasions. Short took those judicial findings seriously when he stated: "If a judge of the court has made a finding with re- spect of an individual expert in the past, that is the finding of the Superior Court. How can the court abdicate any re- sponsibility to audit the per- formance of such experts in light of the expressed intent of the amendments made to Rule 53?" Accordingly, Short concluded the psychiatrist's "objectivity needs to be demonstrated" and ordered that the ex- amination be audiotaped. Glustein had before him similar evi- dence concerning the doctor proposed by the defence. Evidence disclosed that the plaintiff had found 66 cases in a West- law search that considered psychiatrist's evidence. In 11 of these cases, courts or tribunals didn't accept parts or all of the doctor's evidence. In doing so, they made comments that the doctor's "evidence had a f lavour of advocacy," "smacks of partiality" or wasn't "balanced." Of course, that isn't evi- dence of bias or that the doc- tor is incompetent. But with 11 negative remarks in 66 cases, shouldn't we require proof of the doctor's objectivity? Glus- tein didn't think so, conclud- ing there were no "substantial or compelling reasons to re- quire videotaping or audiotap- ing to ensure fairness." Glustein found that any tap- ing of the defence examination would provide an unfair ad- vantage to the plaintiff since there was no recording of the plaintiff 's examination. The reasoning appears to run through other cases denying similar motions. But what would the harm be in allowing a re- cording of the defence examination given that the introduction of the tape would be at the discretion of the judge? The reluctance of defence lawyers and experts to allow taping of assessments has always puzzled me. The tape protects the doctor from allegations of wrongdoing by the patient. Why wouldn't an expert want irrefutable evidence of what was said and the examinations conducted during an assessment? Further, as stated in Moro z v. Jenkins, "The ability to review the defence examination and compare it to the report should in most instances promote settle- ment by demonstrating to both sides the correlation between what the psychiatrist saw and heard and his or her conclusions." Yet doctors resist recording their ex- aminations. Their arguments ring hol- low, however. For example, we hear pa- tients may perform in front of the cam- era. But if doctors can't adequately deal with performing patients, surely we can leave that to the judge or jury to sort out. Patients may not be forthcoming knowing there will be a recording. Yet it's the patient who has requested the record- ing, so how can that be a valid consider- ation? Could it be that defence experts don't want an accurate record of their ex- amination so as to make it more difficult for plaintiffs to dispute their findings? Common sense dictates recording defence examinations when plaintiffs reasonably ask for it. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com. ©2014 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. 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As Law Times reported in June, Sandler will no longer be able to do that work on a part-time basis after he fully retires next year. In a submission to the current commission considering masters' pay, he expressed fears of a "crisis" if the court doesn't replace him and leaves the remaining construction masters to deal with a burgeoning caseload. While it's unclear what the court will do when Sandler retires, RSG Mechanical highlights the need to maintain judicial expertise in construction lien matters. They're obviously very complex cases and with development continuing at a rapid pace in Toronto and its suburbs, it's an area that needs a solid roster of informed judges and masters. — Glenn Kauth I Social Justice Alan Shanoff F

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