Establishing causation of an injury can be a difficult task. The courts traditionally apply what has come to be known as the “but for” test: causation is established if the injury would not have occurred but for the event in question. The problem can be especially difficult in cases of psychiatric injury, in sorting out the specific cause of emotional damage. The Court of Appeal for Ontario was faced with such circumstances in the recent decision of Frazer v. Haukioja, 2010 ONCA 249. Mr. Frazer attended at the emergency room following a motorcycle accident complaining of pain in his right and left ankles. He was examined by Dr. Haukioja, who diagnosed a left ankle fracture. He advised Mr. Frazer that the right ankle was fine and the pain was part of the healing process. When later x-rays disclosed that Mr. Frazer had suffered a talus fracture of the right ankle, Dr. Haukioja failed to advise Mr. Frazer of the results. When Mr. Frazer discovered this at an appointment with another physician, he began suffering serious psychiatric problems as a result of his belief that he had been mistreated and lied to by Dr. Haukioja. The resulting trial resulted in a substantial judgment for damages. The issue before the Court of Appeal was whether Mr. Frazer had properly satisfied the test for causation.

“As the trial judge perceived it, the evidence of Dr. Sadavoy is vital in determining whether the ‘but for’ test has been met. Dr. Sadavoy listed three causative factors behind Mr. Frazer’s psychiatric injury:

• The difference between the true severity of the talus fracture and what was conveyed by Dr. Haukioja;
• Mr. Frazer’s belief that he was “medically mistreated” and “deliberately harmed”; and
• Mr. Frazer’s belief that he contributed to his own disability by walking on the ankle.

The first cause identified by Dr. Sadavoy is the difference between the true severity of the talus fracture and Dr. Haukioja’s representations. Dr. Haukioja failed to communicate with Mr. Frazer at all between December 6, 2001 and January 10, 2002, leaving Mr. Frazer with the understanding that there was no right-ankle fracture. On January 10, 2002, Dr. Haukioja communicated in an inadequate fashion, leaving Mr. Frazer with the understanding that the fracture was tiny, barely visible and minor. It was not until January 23, 2002 that another doctor advised Mr. Frazer of the true nature of his injury.

The evidence clearly demonstrates that but for the non-disclosure, Grant Frazer would have known the true severity of his injury and this first factor would never have come into existence.

The second cause named by Dr. Sadavoy is Mr. Frazer’s belief that he was medically mistreated and deliberately harmed. Dr. Haukioja argues that there is a legal distinction between the non-disclosure and Mr. Frazer’s interpretation of the non-disclosure. Moreover, as the trial judge found there was no evidence to support a finding that Dr. Haukioja deliberately exposed Mr. Frazer to harm, it was not open to the trial judge to find factual causation. I do not agree with this submission. Despite the trial judge’s finding that Dr. Haukioja did not act deliberately, it is sufficient that Mr. Frazer would not have formed the belief that Dr. Haukioja was deliberately causing him harm if the non-disclosure had never happened. This is all that the “but for” test requires.

The third cause identified by Dr. Sadavoy is Mr. Frazer’s belief that he contributed to his own disability by walking on the ankle. Mr. Frazer would not have experienced extra pain from weight-bearing, and thus formed the belief that he had exacerbated his injury, if Dr. Haukioja had disclosed the existence of the fracture on December 6, 2001. This is sufficient to meet the “but for” test.

The trial judge’s acceptance of Dr. Sadavoy’s evidence necessarily means that factual causation is made out on the “but for” test. The real issue in this case is whether legal causation has also been established. As I will explain, I hold that it has…

In the present case, the trial judge found at para. 227 of his reasons that, ‘[t]he psychiatric evidence establishes that the illness that Dr. Haukioja’s conduct brought about in Grant was foreseeable even if the extent of his disability was not.’ I read this as the trial judge’s following the test in Mustapha and finding that it was reasonably foreseeable that Dr. Haukioja’s conduct would cause a mental injury in a person of reasonable fortitude, even if the precise nature and extent of Mr. Frazer’s condition were not reasonably foreseeable. Thus, although the trial judge distinguished Mustapha on its facts, he actually applied the test established in that case, and did so correctly.

Justice David Brown of the Ontario Superior Court of Justice is a careful and thoughtful jurist. Since his appointment as Administrative Judge in charge of the Toronto Estates List, he has been confronted with a number of contentious and difficult cases in this highly charged area of civil litigation. With this background, a postscript Justice Brown added to his decision in Salter v. Salter, 2009 CanLII 28403 on the subject of costs in estate litigation matters is especially noteworthy:

“From a year of acting as administrative judge for the Toronto Region Estates list I have concluded that the message and implications of the McDougald Estate case are not yet fully appreciated. A view persists that estate litigation stands separate and apart from the general civil litigation regime. It does not: estates litigation is a sub-set of civil litigation. Consequently, the general costs rules for civil litigation apply equally to estates litigation – the loser pays, subject to a court’s consideration of all relevant factors under Rule 57, and subject to the limited exceptions described in McDougald Estate. Parties cannot treat the assets of an estate as a kind of ATM bank machine from which withdrawals automatically flow to fund their litigation. The ‘loser pays’ principle brings needed discipline to civil litigation by requiring parties to assess their personal exposure to costs before launching down the road of a lawsuit or a motion. There is no reason why such discipline should be absent from estate litigation. Quite the contrary. Given the charged emotional dynamics of most pieces of estate litigation, an even greater need exists to impose the discipline of the general costs principle of ‘loser pays’ in order to inject some modicum of reasonableness into decisions about whether to litigate estate-related disputes.”

In cases involving personal injuries in Ontario, defendants are given a virtually automatic right to have the plaintiff examined by a health practitioner. Section 105(2) of the Courts of Justice Act provides that “Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.”

The rationale for the rule is that by commencing an action for damages, a claimant puts their health condition in issue and it would be unfair not to permit a defendant to challenge this with evidence from a physician of their choosing. The question has arisen whether plaintiffs should be permitted to tape the examination. It is not uncommon for the parties to have differing memories as to what was said or done during the examination, and there is concern amongst many plaintiff’s counsel about the independence of physicians who earn much of their livelihood from the conduct of defence medical examinations.

The Courts have generally taken a conservative approach to permitting defence medial examinations to be video or audiotaped, requiring a showing of bias on the part of the doctor involved before allowing a plaintiff to do so. In the decision of Adams v. Cook, 2010 ONCA 293, a five judge panel of the Ontario Court of Appeal was asked to revisit the issue. In a 3-2 decision, the Court declined to permit the routine taping of defence medical examinations, holding that there are important issues requiring study by the Civil Rules Committee and the input of interested medical and legal organizations before such a step could be considered. The majority acknowledged that there was a basis for a change in practice:

“I recognize that this court constituted as a panel of five judges is in a position to broaden the application of Bellamy and, in effect, make the recording of defence medicals a more or less routine practice. No doubt a case can be made for doing so. Arguably, the litigation landscape has changed in the 18 years since Bellamy was decided. Legitimate concerns have been expressed by the Honourable Coulter Osborne and others in respect of the role of experts in the civil litigation process. The findings and recommendations of my colleague, Justice Goudge in his report, Inquiry into Pediatric Forensic Pathology in Ontario: Report (Toronto: Ontario Ministry of the Attorney General, 2008) suggest similar concerns arise in criminal cases. Some contend that the routine recording of defence medicals and the transparency it produces would improve the discovery process. Given the electronic world in which we now live, it is perhaps at least questionable whether the presence of a small recording device is likely to have any adverse affect on a medical specialist’s examination.”

The reasons of the dissenting judges well explained the basis for permitting the routine taping of defence medical examinations unless doing so would interfere with the proper conduct of the examination:

“The Chief Justice constituted this five-judge panel specifically so that it could reconsider the principles in Bellamy. In light of the developments since Bellamy was decided 18 years ago, that reconsideration should take place.

As I have said, it appears that the majority in Bellamy concluded that a case-specific reason or bias on the part of the proposed examiner is required. In my view, any requirement for a case-specific bias on the part of a defence examiner is overly-restrictive for three reasons.

First, it is unreasonable to expect that an individual plaintiff or a plaintiff’s lawyer could amass the data necessary to support such an allegation. Such an undertaking would be inordinately difficult, expensive and time-consuming.

Second, in Bellamy at p. 593, Brooke J.A. quoted the Divisional Court’s statement that a defence orientation “is immaterial short of misconduct that should be subject to a report to the College of Physicians and Surgeons”. If it is necessary to prove a defence orientation to the level of professional misconduct, rarely would a court impose a recording condition when ordering a defence medical.

Finally, the inevitably personal nature of an attack alleging actual bias, if unsuccessful, could put the plaintiff at risk of alienating the examiner who will pronounce on his or her medical condition. The plaintiff may unnecessarily be left with an increased concern about the examiner’s ability to report objectively.”

Maintaining the integrity of the litigation process is at the heart of this dispute. As both the majority and dissenting judges acknowledged, further study on this important issue is called for. In the meantime, in my view the dissenting judges got it right.

On June 25, 2009, I reported on the decision in Fresco v. Canadian Imperial Bank of Commerce, in which a Superior Court judge refused to certify a class action for employees of CIBC claiming overtime pay. The issue has now been revisited in a proposed class action brought by employees of Scotiabank. In his decision in Fulawka v. Bank of Nova Scotia, 2010 ONSC 1148, Mr. Justice George Strathy of the Superior Court of Justice came to the opposite conclusion from that of his counterpart in the CIBC case, holding that systemic issues relating to the bank’s conduct made the class action a preferable procedure to that of individual claims by affected employees. The crux of Justice Strathy’s decision on the point is set out below:

“The obligation of the employer to take active measures to prevent uncompensated overtime being worked has been recognized in labour arbitrations applying the Code: see Referee Emrich in T-Line Services Ltd. v. Morin, [1977] C.L.A.D. No. 422 at para. 33-34:

It is within the control and discretion of management to establish the hours of work and to supervise the work force effectively to avoid the triggering of overtime liability. Thus it is reasonable to cast the onus upon management to take active measures to regulate the hours that employees may work. In the absence of such measures, the employer runs the risk that through oversight or omission, workers are permitted to work overtime and thereby liability to pay overtime is triggered …

Viewed from this perspective, it is arguable that Scotiabank’s policy put too much emphasis on the employer’s interests and insufficient emphasis on the interests of Class Members. It is also arguable that it failed to protect Class Members against the risk that they would be required to work uncompensated overtime because of the demands of the jobs or their superiors. There is a basis in fact in this case for common issues based on the duty of Scotiabank to establish and implement a fair process to fulfill the duties it owed to the Class in relation to their overtime work.

The resolution of the issue of whether Scotiabank had a duty to put a fair and reasonable overtime system in place, and whether its system (including the pre-approval requirement) fulfilled this duty, is one that will advance the claim of every Class Member. If a common issues judge were to find that there was such a duty and that Scotiabank’s system was unfair and unreasonable, the absence of pre-approval would not be a defence to an individual overtime claim. While Scotiabank now acknowledges, and its new policy appears to reflect, that it has an obligation to pay overtime that has been “permitted,” its pre-2008 policies and practices did not reflect this acknowledgement.

There is also a factual basis for a common issue concerning Scotiabank’s record-keeping system. Scotiabank’s position is that the Plaintiff has failed to advance any evidence of a systemic flaw in its recordkeeping practices, and because the implementation of those practices was at the branch level, any inquiry into how records were kept must be conducted branch-by-branch and cannot be resolved on a Class-wide basis. I do not accept this. It amounts to Scotiabank saying that its record keeping system was so decentralized, varied and idiosyncratic that every claim for overtime must be examined on a case-by-case basis. Scotiabank cannot point to its own record keeping failures to defeat certification. This would not be an acceptable way for a bank to manage its customers’ money and it is not an acceptable way to manage the compensation to which its employees are entitled. There is evidence that, for most of the Class Period, Scotiabank did not have an adequate system in place for the recording of regular time and overtime worked by Class Members. The staff plan was nothing more than a record, prepared in advance, of the hours that employees were scheduled to work. It was not a record of hours actually worked. While employees were supposed to check and correct their hours after the fact, Scotiabank’s policy prevented them from recording and claiming for hours that had not been pre-approved. The “Catch 22” gave them no reason to record the hours they actually worked because they would not be paid unless the overtime had been pre-approved. The bank had no consistent corporate policy or system applicable to all branches, for the tracking of overtime. It had no system of tracking time in lieu” or of ensuring it was “cashed out”. It is appropriate to ask whether this was a breach of a duty owed to the Class.

The evidence before me, therefore, provides a basis in fact to ask whether Scotiabank owed duties to the Class to put policies and procedures in place to prevent overtime from being worked without compensation and to properly record all hours of overtime worked, whether pre-approved or not. There is also a basis to ask whether those duties were breached. The answers to these common issues do not depend on individual findings that have to be made with respect to each individual claimant. The answers will significantly advance the action because if they are answered in the affirmative the absence of pre-approval in any particular case may be irrelevant and the inability of an employee to prove the quantum of overtime hours worked may not be fatal to the claim. A conclusion by the common issues judge that the bank had a duty to pay overtime that was permitted or required, and that it breached a duty to establish a system to properly record such overtime, could result in a conclusion that the failure to prove overtime hours worked is not a bar to recovery, or that the absence of records is not an impediment to proof of damages.”

On December 22, 2009, the Supreme Court of Canada revolutionized the law of defamation by recognizing a new defence of responsible communication on matters of public interest. Henceforth, Defendants to a libel action will no longer have to prove the truth of the offending statements in order to avoid liability. Rather, the Court held that the constitutional guarantees of freedom of the press and freedom of expression enshrined in section 2(b) of the Charter of Rights and Freedoms mandate that breathing space be given to those who publish on matters of public importance. In other words, Defendants have the right to be wrong so long as their journalism is practiced responsibly.

The decision, Grant v. Torstar Corporation, 2009 SCC 61, arose out of a June 2001 article in the Toronto Star involving Peter Grant, a businessman and friend of then Ontario Premier Mike Harris. Grant was proposing to build a nine hole golf course on his lakefront estate and required approval of the Ministry of Natural Resources. Local cottagers were concerned about the development and believed that Grant’s political ties would lead to a perfunctory approval process. The headline told the story: “Cottagers teed off over golf course – Long-time Harris backer awaits Tory nod on plan.” One cottager was quoted as saying: “Everyone thinks it’s a done deal because of Grant’s influence, but most of all his Mike Harris ties.” The resulting lawsuit by Grant led to a jury verdict in his favour of $1,475,000, including a million dollar punitive damage award.

In allowing the appeal and ordering a new trial, the Court decided that the traditional defences to a libel action paid insufficient regard to the need to protect freedom of the press:

“Freedom does not negate responsibility. It is vital that the media act responsibly in reporting facts on matters of public concern, holding themselves to the highest journalistic standards. But to insist on court-established certainty in reporting on matters of public interest may have the effect of preventing communication of facts which a reasonable person would accept as reliable and which are relevant and important to public debate. The existing common law rules mean, in effect, that the publisher must be certain before publication that it can prove the statement to be true in a court of law, should a suit be filed. Verification of the facts and reliability of the sources may lead a publisher to a reasonable certainty of their truth, but that is different from knowing that one will be able to prove their truth in a court of law, perhaps years later. This, in turn, may have a chilling effect on what is published. Information that is reliable and in the public’s interest to know may never see the light of day.”

This reasoning is undoubtedly right, but in coming to its decision the Court slid over an earlier ruling on the same subject. In Hill v. Church of Scientology of Toronto, decided in 1995, the Court had stated that “defamatory statements are very tenuously related to the core values which underlie s. 2(b).” In balancing the right to freedom of expression against the protection of reputation, the Court in Hill came out firmly on the side of protecting reputation. The Court has now recalibrated the analysis in a way that more clearly takes account of constitutional rights.

There was much publicity a few years ago when claims began surfacing of unpaid overtime at Canada’s chartered banks. The spectre of a limitless number of claims made for interesting reading. On June 18, 2009, Justice Joan Lax of the Ontario Superior Court of Justice had occasion to consider the desirability of a class action in these circumstances. The stakes were high for everyone involved. The certification motion in the case of Fresco v. Canadian Imperial Bank of Commerce, 2009 CanLII 31177 (S.C.J.) was argued over the course of five days and involved no less than ten lawyers. Unfortunately for the affected employees, Justice Lax decided that a class action was not an appropriate procedure for this type of claim. Barring a successful appeal, the decision may for practical purposes grind these cases to a halt, as it would likely not be economically feasible to pursue the claims individually.

In order to certify a claim as a class action, it is necessary to show that there are common issues involved in the proposed proceeding which are more suitable to be adjudicated on a class wide as opposed to an individual basis. The central allegation in the action was that CIBC had a systemic policy of failing to pay overtime to its employees. However, the evidence put forward by some twelve employees showed differing circumstances: one said that time spent using a breast pump should be counted towards her overtime entitlement; another said that smoking breaks should be counted; another arrived a half-hour early as she was driven to work by her husband and said that time should be counted; on cross-examination before the hearing, two part-time employees admitted they were paid for the hours worked and received the pay to which they were entitled.

Faced with these circumstances, Justice Lax said “In my view, that evidence does not provide a sufficient basis in fact to show the existence of systemic wrongdoing. What it shows is a number of individual circumstances that arise for disparate reasons and require individual resolution.” She added “The individual issues in this case are front and centre and it would be virtually impossible to embark on a trial of the common issues without engaging in an individual examination of the specific circumstances that underlie each class member’s claim. The court would be asked to determine systemic wrongdoing either in a factual vacuum or on the basis of an individual examination of each claim, which defeats the very purpose of a class action.”

Given the stakes involved, there will undoubtedly be an appeal of the decision. In the meantime, make no mistake: this is a big win for the banks.

The decision released yesterday by Judge Redfield Baum of the U.S. Bankruptcy Court has received a lot of attention in Canada. Not surprising given that the case involves a request to move the Phoenix Coyotes hockey team from Arizona to Southern Ontario over the objection of the National Hockey League. The basic outlines of the story, however, do not capture the complex legal issues the Bankruptcy Judge had to contend with. A review of the decision reveals the following important points: (a) the agreement between the National Hockey League and member teams provides that a transfer of ownership or relocation can only be made with the consent and approval of the NHL; (b) the City of Glendale Arizona, having provided substantial funding for an arena, secured an agreement that Coyotes home games would be played in Glendale until 2035; (c) the NBA, NFL and Office of the Commissioner of Baseball filed a joint amicus brief in support of the position of the NHL that the league had the right to approve owners and franchise relocations, which could not be superseded by the provisions of the U.S. Bankruptcy Code.

Faced with these circumstances, Judge Baum stated that the case raised “novel and unique issues to the Bankruptcy Court” and that “No cases have been found that precisely or even closely fit this scenario.” The position put forward by the purchaser of the Coyotes was that Section 365(f)(1) of the Bankruptcy Code allowed the contract to be assigned “notwithstanding a provision in an executory contract or in applicable law that prohibits, restricts or conditions the assignment of such contract.” Against that, Section 365(b)(1)(c) of the Bankruptcy Code required that the assignment of a contract provide “adequate assurance of future performance under such contract.” The contract at issue here required that home games be played at the Glendale Arena. Judge Baum stated “It is basic bankruptcy law regarding the assumption and assignment of executory contracts that the asking party cannot assume only the benefits of a contract; rather, assumption is the entire agreement, benefits and burdens.”

The purchasers argued that the contractual provision was unenforceable as it was contrary to Section 365 of the Bankruptcy Code restricting assignment of the contract. Judge Baum concluded “Simply put, this court disagrees with the assertion by the Debtors and PSE (the purchasers) that the relocation request can be excised from the contract because it violates some portion of Section 365…The court concludes that either the requirement of adequate assurance of future performance or of compensation for any actual pecuniary loss resulting from a default dictates that this apparent economic right of the NHL must be appropriately resolved for the Motion to satisfy the requirements of Section 365.” In other words, the purchasers are required to go back to the drawing board and come up with a solution satisfactory to the NHL, perhaps in the form of a relocation payment that addresses the concerns of the parties involved.

While the decision has been portrayed by spokespersons for the purchasers as leaving the door open for the move – and it is true that their motion was dismissed without prejudice – it seems to me that the Judge’s reasoning has left little room for the dispute to be won in Court. The one bright spot may be the statement of Judge Baum that “The principal reason the Motion has been so carefully considered by the court is that it appears that the sale proceeds would most likely provide a material return to the general creditors.” Undoubtedly, we have not heard the last of this story.

I recently filed a post about a request for production of the contents of a party’s Facebook page in the context of a personal injury claim. It was only a matter of time before someone came up with the idea of circumventing this procedure by obtaining the same information by other means. In an April 2009 Advisory Opinion, the Philadelphia Bar Association was asked for guidance in the following circumstances: a lawyer proposed to have a third person approach a hostile witness in a case the lawyer was involved in; the third party would try to become a “friend” of the witness with access to the witness’s Facebook and My Space pages; if access was granted, the third party would promptly funnel information back to the lawyer for possible use against the opposing party and witness during the course of the litigation.

The Bar Association refused to give its blessing to this course of action, saying that it was deceitful and contrary to the lawyer’s professional ethics. The Opinion contains useful insights:

“Turning to the ethical substance of the inquiry, the Committee believes that the proposed course of conduct contemplated by the inquirer would violate Rule 8.4(c) because the planned communication by the third party with the witness is deceptive. It omits a highly material fact, namely, that the third party who asks to be allowed access to the witness’s pages is doing so only because he or she is intent on obtaining information and sharing it with a lawyer for use in a lawsuit to impeach the testimony of the witness. The omission would purposefully conceal that fact from the witness for the purpose of inducing the witness to allow access, when she may not do so if she knew the third person was associated with the inquirer and the true purpose of the access was to obtain information for the purpose of impeaching her testimony.

The fact that the inquirer asserts he does not know if the witness would permit access to him if he simply asked in forthright fashion does not remove the deception. The inquirer could test that by simply asking the witness forthrightly for access. That would not be deceptive and would of course be permissible. Plainly, the reason for not doing so is that the inquirer is not sure that she will allow access and wants to adopt an approach that will deal with her possible refusal by deceiving her from the outset. In short, in the Committee’s view, the possibility that the deception might not be necessary to obtain access does not excuse it.”

The lawyer’s argument that the proposed course of action was no different than the practice of videotaping a party to litigation was given short shrift:

“The inquirer has suggested that his proposed conduct is similar to the common — and ethical — practice of videotaping the public conduct of a plaintiff in a personal injury case to show that he or she is capable of performing physical acts he claims his injury prevents. The Committee disagrees. In the video situation, the videographer simply follows the subject and films him as he presents himself to the public. The videographer does not have to ask to enter a private area to make the video. If he did, then similar issues would be confronted, as for example, if the videographer took a hidden camera and gained access to the inside of a house to make a video by presenting himself as a utility worker.”

On May 14, 2009, the Court of Appeal for Ontario released a decision in a case that I was involved in on behalf of the plaintiffs. The decision, Silvestri v. Hardy, 2009 ONCA 400, concerned an action brought in Ontario as result of a car accident in Michigan. The plaintiff resides in Hamilton and has sought medical attention in Ontario due to the injuries she sustained in the accident. The defendant claims that the accident was caused by an unidentified driver who he was seeking to avoid when he collided with the plaintiff. Given this position, the plaintiff was required to take action against her own insurer pursuant to the unidentified motorist provisions in the insurance policy. This part of the claim must proceed in Ontario.

The question at issue on the appeal was whether the action should be heard in the Ontario courts or whether Michigan was the more appropriate forum for the resolution of the dispute. A Superior Court judge had ruled that the action should be heard in Michigan, as there were a number of witnesses to the accident who are resident there, and Michigan law would govern the action. The Court of Appeal reversed the decision and held that the action should proceed in Ontario.

The Court noted that the number of witnesses for each side were evenly divided, but that if the action were tried in Michigan there would be the possibility of inconsistent verdicts given that the claim by the plaintiff against her own insurer would have to proceed in Ontario. As a result, the overriding goals of efficiency and justice which underlie the system of conflicts of law mandated that the action proceed in Ontario rather than Michigan.

While the Court did not have to consider the issue, it can be said that statutory provisions in Ontario make the forum of the dispute of lesser importance in car accident cases that occur in North America. Section 243(1) of the Insurance Act provides that automobile insurance provided for under the Act applies to the use or operation of a vehicle in Canada or the United States. Section 252(1) of the Act provides that in the case of liability arising out of the use or operation of a vehicle in Canada or the United States, the insurer is liable up to the minimum limits prescribed for in that province, territory or jurisdiction if those limits are higher than the limits in the policy, and the insured appoints the insurer to appear and defend an action in any province or territory of Canada or any jurisdiction in the United States. Section 57(1) of the Statutory Accident Benefits Schedule provides that the insurer is required to pay accident benefits properly payable if the accident occurred in another province or territory of Canada or a jurisdiction in the United States.

In light of these provisions, it can readily be seen that, insofar as the rights and obligations of the insured person and the insurer are concerned, there is little difference if a car accident occurs in Ontario, Canada or Ontario, California.

In an influential decision from 1993 known as the Ikarian Reefer, the English Queens Bench held that expert witnesses owe their primary duty to the Court instead of the party who may have retained their services. In the decision, the Court made the following important points:

(1) Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form and content by the exigencies of litigation;
(2) An expert witness should provide independent assistance to the Court by way of objective, unbiased opinion in relation to matters within his or her expertise. An expert should never assume the role of an advocate;
(3) An expert witness should state the facts or assumptions on which the opinion is based, and should not omit to consider facts which may detract from the opinion.

On January 1, 2010, as part of an ambitious attempt to streamline the civil litigation system in Ontario, these obligations will be given effect in the Rules of Civil Procedure. The rules will provide that the duty of an expert witness is to provide fair, objective, non-partisan opinion evidence related only to matters within their area of expertise, and that this duty prevails over any other obligation of the expert witness. A certificate confirming that these duties are understood will have to be signed by the expert witness.

It is to be hoped that these welcome amendments will result in fewer “battles of the experts” to which our litigation system has become accustomed. In cases where such assistance is needed, the Courts rely heavily on expert witnesses to provide opinions on matters outside the expertise of the parties to the dispute. If those opinions are tainted by bias, there can be a failure of justice.