Daggitt v. Campbell, 2016 ONSC 2742
Released April 28, 2016 | Full Decision [CanLII]
The defendant moved to compel the plaintiff to attend a defence medical examination with psychiatrist, Dr. Monte Bail. The plaintiff opposed the motion on two grounds. First, there was insufficient evidence to support an assessment by a psychiatrist. Second, the plaintiff argued that Dr. Bail had demonstrated “clear and definitive” defence bias in many previous cases, such that the court should decline to make any order permitting Dr. Bail specifically to conduct a defence medical examination.
Madam Justice MacLeod-Beliveau disposed of the motion on the basis that there was insufficient evidence adduced by the defendant to warrant a defence medical examination by psychiatrist. Her reasons included the fact that the plaintiff had not seen a psychiatrist for treatment or for medical legal purposes and that a defence medical examination so close to trial would likely jeopardize the trial date and delay the trial of the action by several years.
Most significantly, Justice MacLeod-Beliveau felt it necessary to comment on Dr. Bail’s suitability as a defence medical expert. She found the plaintiff’s argument – that Dr. Bail’s failure to adhere to principles of fairness, objectivity, and impartiality in the past disqualified him from conducting a defence psychiatric examination – to be compelling. Justice MacLeod-Beliveau noted that the Supreme Court of Canada has held that an expert witness was unwilling or unable to comply with an expert’s duty to the Court is not qualified to give expert opinion evidence and should not be permitted to do so. She then reviewed several decisions containing critical findings in relation to Dr. Bail, most notably the recent decision of Bruff-Murphy v. Gunawardena, 2016 ONSC 7, in which Justice Kane held that he would “not qualify witnesses as experts in the future whose reports present an approach similar to that of Dr. Bail in this case.”
Justice MacLeod-Beliveau noted that the prevailing consequence for an expert who signed an undertaking and fails to honour his or her obligation to the court is simply the rebuke of the court. She found this to be inadequate as the rebuke does nothing to prevent that same expert from repeating the same conduct so long as other lawyers are willing to hire them.
Justice MacLeod-Beliveau closed her analysis by dealing specifically with rule 33.02, which governs independent medical examinations. She observed that it could be argued that the court, in its exercise of discretion should consider in appropriate cases whether or not a proposed health practitioner is biased and therefore fails to qualify as an expert. A person found not to qualify as an expert should not be allowed to have any role in the court process. Justice MacLeod-Beliveau took note of the “highly intrusive nature” of defence medical examinations and the potential for a miscarriage of justice that can be caused by a biased expert, particularly in front of a jury.