A woman's vehicle was rear-ended and as a result, she brought a personal injury claim against the ‘at fault’ driver. The appellant, Ms. Bruff-Murphy, alleged that she suffered several injuries as a result of the car accident, including soft tissue (myofascial) injuries to her back, right shoulder and neck; depression and anxiety; post-traumatic stress disorder (PTSD); and chronic pain. The appellant also alleged that her injuries substantially impacted her enjoyment in life and she has been unable to work due to her injuries. At the conclusion of the civil trial, the jury awarded $23,500 in general damages but denied her special damages, future care costs and past and future income loss.
One month after the trial, the judge released his reasons why he found that Ms. Bruff-Murphy’s claim for general damages met the threshold under the Insurance Act of a permanent serious impairment of an important physical, mental, or psychological function. In his ruling, the trial judge also revealed a number of substantive criticisms of one of the expert witnesses for the defence, Dr. Bail; specifically, the judge found that the psychiatrist was not a credible witness and failed to honour his obligation to be fair, objective and nonpartisan, as set out in r.4.1.01 of the Rules of Civil Procedure. Nevertheless, the judge stated that he allowed Dr. Bail to testify due to the very high threshold for excluding expert testimony for bias, as established in White Burgess Langille Inman v. Abbott and Haliburton Co.(2015) by the Supreme Court of Canada.
In Bruff-Murphy v. Gunawardena (2017), Ms. Bruff-Murphy appealed the trial judge’s ruling, on the basis that trial fairness had been breached, specifically, due to the testimony of Dr. Bail. The three key issues that the appeals court was required to address were:
Justice Hourigan, for the Ontario Court of Appeal, began his analysis with the first issue. During the trial, counsel for Ms. Bruff-Murphy wanted to cross-examine Dr. Bail on three previous comments pertaining to his testimony in other cases. The comments essentially amounted to accusations that, in his testimonies, Dr. Bail became an advocate for the defense, rather than an impartial observer which is what the role of an expert witness should be. The appellant charged that the trial judge erred in not allowing her counsel to cross-examine Dr. Bail on this issue, as it would have been an opportunity to show prior findings of discreditable conduct on the part of Dr. Bail.
Justice Hourigan disagreed with the appellant’s argument, noting that the prior comments made about Dr. Bail did not amount to a finding of discreditable conduct; rather, the comments were the opinions of a judge and two arbitrators as related to the reliability of Dr. Bail’s testimony in specific cases. Referencing the decisions in R. v. Ghorvei and R. v. Boyne, Justice Hourigan asserted that the comments from the previous cases would have been of no assistance to the jury in the Bruff-Murphy civil trial, without an understanding of their factual foundation. Justice Hourigan believed that bringing up the comments would have served only to divert the jury from the task at hand and turn the trial into an inquiry regarding Dr. Bail’s reliability in the previous three cases. On these grounds, the judge ruled that the trial judge did not err in prohibiting this line of cross-examination.
On the second issue, the appellant first charged that the trial judge erred by not exercising his gatekeeper function to exclude Dr. Bail from testifying on the grounds that Dr. Bail’s methodology was unfair. Then, after allowing Dr. Bail to testify and hearing his testimony, the trial judge erred by not instructing the jury to disregard the testimony.
Justice Hourigan began his analysis by referencing the recent Supreme Court of Canada ruling in White Burgess, where Justice Cromwell stated that the basic structure of the law relating to the admissibility of expert evidence has two main components. The first component considers the four “threshold requirements” for admissibility of evidence as established in R v. Mohan, which are: (a) relevance, (b) necessity in assisting the trier of fact, (c) absence of an exclusionary rule and (d) the need for the expert to be properly qualified. The second component is a “discretionary gatekeeping role” which obliges a judge to balance the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. In other words, a judge must consider whether the expert evidence’s probative value outweighs its prejudicial effect. Justice Cromwell also explained that a lack of impartiality on the part of an expert witness has bearing on the admissibility of their testimony, as well as how their evidence is weighed.
Justice Hourigan noted that the trial judge referred to White Burgess in his analysis, notably Justice Cromwell’s statement that it would be quite rare to rule a proposed expert’s testimony as inadmissible, when he concluded that Dr. Bail met the low threshold requirement of being “able and willing to carry out his or her primary duty to the court”. While another judge may have found that Dr. Bail did not meet this low threshold, Justice Hourigan submitted that this was a discretionary decision on the part of the trial judge.
However, with respect to the second component, Justice Hourigan concluded that the trial judge did, in fact, err in exercising his gatekeeper function -- the trial judge did not reference the second component at all and seemed to believe that in meeting the first Mohan threshold, Dr. Bail was qualified to be an expert witness in this action. Justice Hourigan asserted that, in his view and on a proper balancing, the potential risks of admitting Dr. Bail’s evidence far outweighed the prospective benefit of his testimony. The appeals judge noted that it was obvious from a review of Dr. Bail’s report that there was a high probability that he would prove to be a problematic expert witness, with an intent to advocate for the defence rather than fulfil his duty to the Court as an impartial expert witness.
Justice Hourigan stated that the first cause for concern was Dr. Bail’s methodology. Dr. Bail merely conducted a short interview with the appellant and then proceeded to review her medical records looking for any discrepancies between her statements to him and the medical records. The discrepancies he found formed the basis of Dr. Bail’s report. Justice Hourigan stated that this approach was unfair -- often, what appears to be a discrepancy in a witness’s evidence is not really an inconsistency at all, since all that is required is a simple explanation to resolve the issue; however, Dr. Bail never gave the appellant any opportunity to respond and provide explanations for the inconsistencies. Also, because the bulk of Dr. Bail’s report was a recount of perceived inconsistencies between this examination of Ms. Bruff-Murphy and her medical records, Dr. Bail’s testimony really didn’t offer any medical expertise, which meant that his evidence had little benefit, while the potential for ‘mischief’ was high.
Justice Hourigan also found that, in his report, Dr. Bail came very close to usurping the role of the jury in assessing the appellant’s credibility, going as far as stating in his report that, “lack of reliability, credibility, and validity are factors in this case”. Dr. Bail went out of his way to make points in his report that were meant to damage the appellant’s case, including giving the opinion that the appellant misled several of the physicians who examined her. Due to all of these factors, Justice Hourigan concluded that the trial judge should have excluded Dr. Bail from testifying.
Justice Hourigan agreed with the conclusions made by the trial judge after the trial, where he concluded that the psychiatrist crossed the line of acceptable expert evidence. He noted that the tests Dr. Bail conducted of the appellant during their examination were deliberately interpreted to fit his theory of deception, and unless the appellant answered every question correctly, then she was inconsistent and any inconsistency equated to dishonesty, in Dr. Bail’s opinion. Justice Hourigan also drew attention to Dr. Bail’s response during cross-examination, when he was asked why he ignored parts of the appellant’s records that did not fit his diagnosis, to which Dr. Bail responded that he was interested in statements that did not corroborate and not those that did. Justice Hourigan asserted that statements like these made it clear that Dr. Bail lacked an understanding of the need to be impartial as an expert witness.
When it became clear from Dr. Bail’s testimony that he was not going to be an impartial expert witness, Justice Hourigan found that the trial judge erred in not exercising his gatekeeper role. The appeal judge opined that the trial judge seemed to have been under the false assumption that once Dr. Bail was qualified as an expert, his role as gatekeeper ended.
Justice Hourigan stressed that a trial judge must continue to exercise her/his gatekeeper function throughout a trial and in this case, when the trial judge recognized the potential risk to fairness that Dr. Bail’s testimony caused, action should have been taken. Referencing the decision in R. v. White, the appeals judge added that the cost/benefit analysis component of reviewing a potential expert witness is always available to the Court even after the witness has been allowed to testify, especially if the prejudicial effect is only revealed during testimony.
Justice Hourigan asserted that there were a number of steps the trial judge could or should have taken, based on his ongoing discretion as a gatekeeper, when it was clear that Dr. Bail’s testimony lacked impartiality and crossed the line of a questionable expert witness. One option was advising counsel that he was going to give either a mid-trial or final instruction that Dr. Bail’s testimony would be excluded from the evidence, in whole or in part. Another option, again in the absence of the jury, would be to ask for submissions from counsel on a mistrial and then rule accordingly. A key point made by Justice Hourigan was that the trial judge was not powerless and should have exercised prudence in excluding Dr. Bail’s testimony before the doctor’s bias had a prejudicial effect. The fact that the trial judge did not do so, constituted a miscarriage of justice.
The respondent argued that even if the Court concluded that Dr. Bail’s testimony should have been excluded, it still did not mean a new trial was necessary because Dr. Bail was only one of several witnesses and his testimony likely did not have a significant impact on the jury’s verdict. While Justice Hourigan acknowledged that it was impossible to gauge with certainty the impact of Dr. Bail’s testimony, he stressed the fact that Dr. Bail was only one of two witnesses to testify for the defence. Also, Dr. Bail’s testimony was the last testimony heard by the jury before their deliberation and the trial judge did not express any concern to the jury concerning the substance or independence of the doctor’s testimony. Therefore, Dr. Bail’s testimony may well have been an important factor in the jury’s analysis of the case. More importantly, the appeal judge asserted that Court’s inability to measure the precise prejudice of Dr. Bail’s testimony was irrelevant to the fact that a miscarriage of justice had been proven.
For all these reasons, Justice Hourigan granted the appellant’s appeal, set aside the previous judgement and ordered a new trial. This judgement reflects changes in the laws pertaining to expert witnesses as well as in the role of trial judges with respect to expert witnesses, that have taken place in the past 20 years. Expert witnesses must be independent and provide objective and unbiased expert opinion evidence. And, trial judges are expected to act as gatekeepers to ensure that experts have the appropriate training and experience, and also provide testimony that assists the trier of fact, before being considered qualified to give evidence. As occurred in the case of Dr. Bail, when an expert witness crosses the line and becomes an advocate for one party in the action, the expert’s evidence should be excluded.
Being the victim of a car accident can be a devastating experience, both financially and emotionally, and the stress of going through a civil trial to recover the damages you deserve can be overwhelming, especially when your credibility is called into question. At Rastin & Associates, we can help. Our team of car accident lawyers possess many years experience in helping accident victims successfully claim damages after sustaining injuries in an accident. If you were injured due to another person’s negligence and you are considering claiming compensation, call Rastin today for an honest assessment of your case.
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