



COURT OF APPEAL FOR ONTARIO

CITATION: Bruff-Murphy v. Gunawardena, 2017 ONCA 502

DATE: 20170616

DOCKET: C61576

Lauwers, Hourigan and Benotto JJ.A.

BETWEEN

Callum
    Bruff-Murphy and Hope Bruff-McArthur

by their
    Litigation Guardian Liese Bruff-McArthur,

Liese
    Bruff-McArthur personally, and Richard McArthur

Plaintiffs (Appellants)

and

Neloni Gunawardena

Defendant (Respondent)

Geoffrey D.E. Adair, for the appellants

Daniel I. Reisler and Jessica L. Kuredjian, for the
    respondent

Heard: May 15, 2017

On appeal from the judgment of Justice Paul B. Kane of
    the Superior Court of Justice, sitting with a jury, dated August 22, 2016.

Hourigan J.A.:

A.

INTRODUCTION

[1]

The law regarding expert witnesses has evolved considerably over the
    last 20 years. Gone are the days when an expert served as a hired gun or
    advocate for the party that retained her. Today, expert witnesses are required
    to be independent, and their function is to provide the trier of fact with
    expert opinion evidence that is fair, objective and non-partisan.

[2]

The role of the trial judge in relation to expert witnesses has also
    evolved. Appellate courts have repeatedly instructed trial judges that they
    serve as gatekeepers when it comes to the admissibility of expert opinion
    evidence. They are required to carefully scrutinize, among other things, an
    expert witnesss training and professional experience, along with the necessity
    of their testimony in assisting the trier of fact, before the expert is
    qualified to give evidence in our courts. This gatekeeper role is especially
    important in cases, such as this one, where there is a jury who may
    inappropriately defer to the experts opinion rather than evaluate the expert
    evidence on their own.

[3]

In the present case, the trial judge qualified an expert to testify on
    behalf of the defence despite some very serious reservations about the experts
    methodology and independence. It became apparent to the trial judge during the
    experts testimony that he crossed the line from an objective witness to an
    advocate for the defence. Despite his concerns, the trial judge did nothing to
    exclude the opinion evidence or alert the jury about the problems with the
    experts testimony.

[4]

On appeal, the appellants advance several arguments to the effect that
    trial fairness was breached, such that a new trial is necessitated. All of these
    arguments focus on the impugned expert.

[5]

In my view, the appeal must be allowed and a new trial ordered. I reach
    this conclusion because the trial judge failed to properly discharge his
    gatekeeper duty at the qualification stage. Had he done so, he would have
    concluded that the risks of permitting the expert to testify far outweighed any
    potential benefit from the proposed testimony.

[6]

In addition, the trial judges concerns about the experts testimony
    were substantially correct; the witness crossed the boundary of acceptable
    conduct and descended into the fray as a partisan advocate. In these
    circumstances, the trial judge was required to fulfill his ongoing gatekeeper
    function and exclude in whole or in part the experts unacceptable testimony.
    Instead, the trial judge did nothing, resulting in trial fairness being
    irreparably compromised.

B.

BACKGROUND FACTS

(1)

The Trial

[7]

The appellant, Liese Bruff-McArthur, was hit from behind by the
    respondent while stopped in her motor vehicle. She alleged that as a
    consequence of the accident she has suffered multiple soft tissue damages in
    her neck, lower back and right shoulder. Ms. Bruff-McArthur also alleged that
    the accident has left her in an apparent chronic pain condition with attendant
    anxiety and depression. She says that she is unable to work and that her
    enjoyment of life has been substantially diminished.

[8]

Ms. Bruff-McArthur commenced an action against the respondent, who
    admitted liability. The sole issue in the 23-day jury trial was what damages,
    if any, she suffered.

[9]

In support of her case, Ms. Bruff-McArthur called a number of physicians
    who had either treated or examined her, two of whom were retained by insurers
    to conduct independent medical examinations. The consensus among these
    witnesses was that she suffered in the manner complained of and that the cause
    of her suffering was the motor vehicle accident.

[10]

The
    defence called two witnesses, both of them medical expert witnesses who had
    been retained by the defence to conduct independent medical examinations. The
    first, Dr. Gianni Maistrelli, an orthopedic specialist, testified that he found
    nothing wrong with Ms. Bruff-McArthur from a musculosketal standpoint. This
    conclusion was not surprising given that she was complaining of soft tissue
    injuries.

(2)

Dr. Bails Evidence

[11]

The
    other defence expert witness was Dr. Monte Bail, a psychiatrist. Counsel for Ms.
    Bruff-McArthur objected to his testifying on two grounds.

[12]

First,
    she argued that his report was essentially an attack on Ms. Bruff-McArthurs
    credibility. Counsel pointed to numerous instances in the report where Dr. Bail
    commented on discrepancies between the information Ms. Bruff-McArthur provided
    in her interview with him and what he later found in her medical records. Dr.
    Bail never put those alleged inconsistencies to Ms. Bruff-McArthur. Counsel
    sought an order that excluded the parts of Dr. Bails report that did not meet
    the test in
Browne v. Dunn
(1893), 6 R. 67 (H.L.), and an order that Dr.
    Bail not be permitted to testify regarding his views on her credibility.

[13]

Second,
    Ms. Bruff-McArthur argued that Dr. Bail was biased. In support of this argument,
    counsel submitted that she should be permitted to cross-examine Dr. Bail on
    findings made in another court case and two arbitrations to the effect that he
    was not an independent witness. The trial judge ruled, relying on
R. v.
    Karaibrahimovic
, 2002 ABCA 102, 2 Alta. L.R. (4th) 213,
R. v. Ghorvei
,
    (1999) 46 O.R. (3d) 63 (C.A.) and
Desbiens v. Mordini
,

2004

CanLII 41166 (Ont. S.C.) that Dr. Bail could not be cross-examined on
    prior court rulings or arbitration decisions where his testimony was rejected
    or his objectivity as a witness had been questioned.

[14]

The
    trial judge then put to counsel for Ms. Bruff-McArthur that there remained the
    issue of whether Dr. Bail had sufficient professional objectivity to provide
    independent evidence and he asked her if she wished to cross-examine Dr. Bail
    on this issue as part of a
voir dire
. Counsel declined that offer and
    elected instead to cross-examine Dr. Bail on the issue as part of her
    cross-examination in the trial proper.
[1]


[15]

The
    trial judge then proceeded to rule that Dr. Bail could not testify on certain sections
    of his report. The relevant sections were primarily where Dr. Bail was critical
    of the reliability of the conclusions reached by other doctors examining Ms.
    Bruff-McArthur. The trial judge also made clear that he did not want Dr. Bail
    testifying about Ms. Bluff-McArthurs credibility.

[16]

Dr.
    Bail testified in chief that his methodology was not to review any of a subjects
    medical records before meeting with them. Consistent with this methodology, after
    the examination of Ms. Bruff-McArthur, which took just over an hour, Dr. Bail
    spent 10 to 12 hours reviewing her medical records, looking for discrepancies
    between what she told him in the meeting and what was in the records. These
    discrepancies formed the largest portion of his report.

[17]

In
    summary, Dr. Bail testified that in his opinion: Ms. Bruff-McArthur did not
    develop any psychiatric disorders or limitations as a result of the accident;
    required no psychotherapy or psychotropic medication in relation to the
    accident; her pre-accident psychiatric profile was not exacerbated by the
    accident; and she did not require housekeeping or attendant care as a result of
    any psychiatric condition.

(3)

The Verdict

[18]

Dr.
    Bail was the last witness to testify at trial. After closing submissions, the
    trial judge gave his charge to the jury. The charge was previously subject to a
    pre-charge conference and it was provided to the parties in advance of being
    presented to the juries. No objection was made to the charge and no special
    instruction regarding Dr. Bails testimony was requested.

[19]

As
    part of his charge, the trial judge reviewed very briefly Dr. Bails testimony.
    He did not instruct the jury regarding the duty of expert witnesses. Nor did he
    raise any concerns with respect to the substance of Dr. Bails testimony or his
    independence.

[20]

After
    the jury retired to consider their verdict, defence counsel brought a Threshold
    Motion, arguing that Ms. Bruff-McArthur did not met the threshold in s. 267.4(12)
    of the
Insurance Act
, R.S.O. 1990, c. I.8, of suffering a permanent
    serious impairment of an important physical, mental, or psychological function.

[21]

Following
    completion of the motion, the jury returned with a verdict assessing general
    damages at $23,500 and rejecting all other heads of damages, including special
    damages, future care costs and past and future income loss.

(4)

Threshold Motion Ruling

[22]

Approximately
    one month later, the trial judge released his reasons on the Threshold Motion:
    see 2016 ONSC 7, [2016] I.L.R. I-5835. He concluded that Ms. Bruff-McArthurs
    claim for general damages met the threshold in s. 267.4(12) of the
Insurance
    Act
. In reaching that conclusion, the trial judge analyzed the evidence
    adduced at trial, including the evidence of Dr. Bail.

[23]

I
    note parenthetically the respondents submission that this court should not
    rely on the ruling on the Threshold Motion because it was released after the
    jurys verdict. In what follows, I will only reference the ruling on the
    Threshold Motion to gain insight into the trial judges concerns with Dr.
    Bails testimony and to understand the trial judges reasons for permitting Dr.
    Bail to testify. When it comes to determining whether the trial judges
    concerns were justified or misplaced, I will conduct my own review of the
    record.

[24]

In
    his ruling, the trial judge stated at para. 58 that during the trial he
    permitted Dr. Bail to testify because of the [v]
ery
    high threshold before a court may exclude expert testimony for bias established
    by the Supreme Court in
White Burgess Langille Inman v. Abbott
    and Haliburton Co.,
2015 SCC 23, [2015] 2
    S.C.R. 182, at paras. 48-49
.

[25]

The
    trial judges analysis of Dr. Bails evidence was highly critical and included
    the following observations:

·

The vast portion of
    his testimony in chief consisted of Dr. Bail telling the jury about prior
    medical notations and how they contradict what Ms. Bruff-McArthur allegedly
    told him in his interview (para. 68).

·

The only semi-psychiatric element of
    Dr. Bails report was entitled Mental Status Examination, which consumed one
    half a page of the 20 page report (para. 69).

·

In order to be fair
    and objective, Dr. Bail should have asked the plaintiff why her verbal
    reporting of her prior medical condition was so vastly different from her prior
    medical records. Dr. Bail could not do that because his methodology in
    conducting independent medical examinations was to not read such medical
    records before the interview (para. 70).

·

Dr. Bail testified that he discarded
    any notes he may have made during his interview of
Ms. Bruff-McArthur
as to what she allegedly told him. His only
    record of her comments was contained in his report dictated after he
    interviewed
Ms. Bruff-McArthur
and after
    his subsequent lengthy review of her medical records (para. 73).

·

Dr. Bail was making up
    evidence as he testified to support his conclusions adverse to Ms.
    Bruff-McArthur (para. 108).

·

The vast majority of Dr.
    Bails report and testimony in chief was not of a psychiatric nature but was
    presented under the guise of expert medical testimony and the common
    presumption that a member of the medical profession will be objective and tell
    the truth (para. 122).

[26]

The
    trial judge found that Dr. Bail was not a credible witness and did not honour
    his obligation and written undertaking to be fair, objective and non-partisan
    pursuant to r. 4.1.01 of the
Rules of Civil Procedure, R.R.O. 1990, Reg.
    194. He
summarized Dr. Bails evidence as follows, at paras. 123-125:

The vast majority of Dr. Bails testimony to the jury amounted
    to nothing other than the following:

(a) The plaintiff did not tell me the truth in my interview;

(b) Here are all the instances I found in my 10 to 12 hour
    review of her medical records which prove that she did not tell me the truth;

(c) If I as a psychiatrist cannot believe her; how can
    you?

The primary purpose of R. 4.1.01 is to prohibit and prevent
    such testimony in the guise of an expert. Dr. Bail undertook and thereby
    promised to not do what he did in front of this jury.

I will not qualify witnesses as experts in the future whose
    reports present an approach similar to that of Dr. Bail in this
    case.

C.      ISSUES

[27]

This
    appeal raises the following issues:

·

Did the trial judge err in not permitting Ms. Bruff-McArthur to
    cross-examine Dr. Bail on prior court and arbitral findings made against him?

·

Did the trial judge err in qualifying Dr. Bail as an expert
    and/or in not intervening or taking steps to exclude Dr. Bails testimony?

·

Did the respondent violate the rule in
Browne v. Dunn
?

[28]

As
    I will discuss in the analysis section of my reasons, I have concluded that the
    trial judge did not err in ruling that Dr. Bail could not be cross-examined
    regarding prior court and arbitral findings made against him. However, the
    trial judge did err in permitting Dr. Bail to testify and in failing to exclude
    in whole or in part Dr. Bails testimony and, consequently, a new trial is
    required. Given this finding, it is unnecessary to consider the
Browne v.
    Dunn
argument.

D.

ANALYSIS

(1)

The Scope of Dr. Bails Cross-Examination

[29]

Counsel
    for Ms. Bruff-McArthur sought to cross-examine Dr. Bail on three previous
    comments regarding his testimony in other cases, indicating that he had:

·

Become an advocate for the party calling him as a witness, which
    is not the role of an expert
: see
Morrison v. Greig
, [2007] O.J.
    No. 225 (S.C.),
at
paras. 47-48;

·

Appropriated the role of advocate of the insurer rather than an
    impartial witness, took a partisan approach and focused on inconsistencies in
    the information given by claimant, such that his credibility was seriously
    weakened and should be disregarded: see
Gabremichael v. Zurich Insurance
    Co.
, [1999] O.F.S.C.I.D. No. 198, at paras. 31-33; and

·

Presented as a notably partisan witness: see

Sohi
    v. ING Insurance Co. of Canada
, [2004] O.F.S.C.D. No. 106, at para. 38.

[30]

Ms.
    Bruff-McArthur submits that the trial judge erred in denying her the right to
    cross-examine Dr. Bail on these findings because the trial judge failed to draw
    a distinction between prior comments rejecting the evidence of the witness and
    prior findings of discreditable conduct, namely the failure of Dr. Bail to
    abide by his oath as an expert.

[31]

I
    do not accept this argument. In my view, the prior comments made about Dr. Bail
    do not amount to a finding of discreditable conduct. Rather, they are the opinions
    of a judge and two arbitrators regarding the reliability of his testimony in particular
    cases. This is analogous to the situation in
Ghorvei
, where a witnesss
    credibility had been attacked in previous proceedings. Charron J.A. (as she
    then was) held at para. 31 that those credibility findings from the previous
    proceedings were not proper material for cross-examination:

In my view, it is not proper to
    cross-examine a witness on the fact that his or her testimony has been rejected
    or disbelieved in a prior case. That fact, in and of itself, does not
    constitute discreditable conduct. I do not think it would be useful to allow
    cross-examination of a witness on what is, in essence, no more than an opinion
    on the credibility of unrelated testimony given by this witness in the context
    of another case. The triers of fact who would witness this cross-examination
    would not be able to assess the value of that opinion and the effect, if any,
    on the witness's credibility without also being provided with the factual
    foundation for the opinion.

See also
R.
    v. Boyne
, 2012 SKCA 124, 405 Sask.R. 163,
    at paras. 48-51, leave to appeal refused, [2013] S.C.C.A. No. 54.

[32]

In
    the present case, the comments of the judge and arbitrators about Mr. Bails
    testimony in the previous cases would have been of no assistance to the jury
    without an understanding of their factual foundation. That necessary context
    would only have served to divert the jury from the task at hand and convert the
    trial into an inquiry regarding the reliability of Dr. Bails testimony in the three
    other proceedings. Thus, in my view, the trial judge did not err in prohibiting
    this line of cross-examination.

(2)

The Trial Judges Gatekeeper Role with Respect to Expert Opinion
    Evidence

(1)

Qualification Stage

[33]

Ms.
    Bruff-McArthur submits that the trial judge should have exercised his
    gatekeeper function to exclude Dr. Bail from testifying on the grounds that his
    methodology was unfair; he was biased; he was engaged in an exercise to destroy
    her credibility; and his prospective evidence would amount to a violation of the
    rule in
Browne v. Dunn
. In the alternative, she argues that the trial
    judge erred in not instructing the jury that they should disregard Dr. Bails
    testimony.

[34]

In
White Burgess
, a decision released shortly before the judgment under
    appeal, the Supreme Court of Canada provided clarity and guidance regarding
    challenges to experts on the basis of bias and lack of independence. Cromwell
    J., writing for the court, stated at para. 19 that the basic structure for the
    law relating to the admissibility of expert evidence has two main components.

[35]

The
    first component requires the court to consider the four traditional threshold
    requirements for the admissibility of the evidence established in
R. v.
    Mohan
, [1994] 2 SCR 9: (i) relevance; (ii) necessity in assisting the
    trier of fact; (iii) absence of an exclusionary rule; and (iv) the need for the
    expert to be properly qualified.

[36]

The
    second component is a discretionary gatekeeping step where the judge
    balances the potential risks and benefits of admitting the evidence in order to
    decide whether the potential benefits justify the risks: para. 24. It is a
    cost-benefit analysis under which the court must determine whether the expert
    evidence should be admitted because its probative value outweighs its
    prejudicial effect.

[37]

The
    analysis under the second component is best thought of as a specific
    application of the courts general residual discretion to exclude evidence
    whose prejudicial effect exceeds its probative value:
R. v. Bingley
,
    2017 SCC 12, 407 D.L.R. (4th) 384, at para. 16. As Charron J.A. wrote in
R.
    v. K. (A.)
(1999), 45 O.R. (3d) 641 (C.A.), at para. 76, application for
    leave quashed, [2000] S.C.C.A. No. 16: The balancing process which lies at the
    core of the determination of the admissibility of this kind of evidence is not
    unique to expert opinion evidence. It essentially underlies all our rules of
    evidence. In
White Burgess
, Cromwell J. referenced
Mohan
and
    made the same point at paras. 19 and 20:

Mohan

also underlined the important role
    of trial judges in assessing whether otherwise admissible expert evidence
    should be excluded because its probative value was overborne by its prejudicial
    effect  a residual discretion to exclude evidence based on a cost-benefit
    analysis: p. 21.



The reasons in

Mohan

engaged
    in a cost-benefit analysis with respect to particular elements of the four
    threshold requirements, but they also noted that the cost-benefit analysis
    could be an aspect of exercising the overall discretion to exclude evidence
    whose probative value does not justify its admission in light of its
    potentially prejudicial effects: p. 21.

[38]

Cromwell
    J. further explained that lack of independence or impartiality on the part of
    an expert witness goes to the admissibility of the witnesss testimony, not
    just to its weight: para. 40. Specifically, in the governing framework for
    admissibility, the court should consider an experts potential bias when
    determining whether the expert is properly qualified at the initial threshold
    inquiry: para. 53.

[39]

However,
    he added that bias should also be considered when the court exercises its
    gatekeeping exclusionary discretion, writing at para. 54:

Finding that expert evidence meets the basic threshold does not
    end the inquiry. Consistent with the structure of the analysis developed
    following

Mohan

which
    I have discussed earlier,
the judge must still take concerns about the
    experts independence and impartiality into account in weighing the evidence at
    the gatekeeping stage
. At this point, relevance, necessity, reliability and
    absence of bias can helpfully be seen as part of a sliding scale where a basic
    level must first be achieved in order to meet the admissibility threshold and
    thereafter continue to play a role in weighing the overall competing considerations
    in admitting the evidence. At the end of the day, the judge must be satisfied
    that the potential helpfulness of the evidence is not outweighed by the risk of
    the dangers materializing that are associated with expert evidence. [Emphasis
    added.]

In the overview of his discussion of the admissibility
    of expert opinion evidence, he instructed at para. 34 that:

[A] proposed experts independence and impartiality go to
    admissibility and not simply to weight and there is a threshold admissibility
    requirement in relation to this duty. Once that threshold is met,
remaining
    concerns about the experts compliance with his or her duty should be
    considered as part of the overall cost-benefit analysis which the judge
    conducts to carry out his or her gatekeeping role
. [Emphasis added.]

[40]

In
    the present case, the trial judge cited
White Burgess
and appears to
    have relied upon Cromwell J.s statement that in the threshold inquiry it would
    be quite rare for a proposed experts evidence to be ruled inadmissible. As
    Cromwell J. noted at para. 49, all that needs to be established at that stage
    is whether the expert is able and willing to carry out his or her primary duty
    to the court. The trial judge concluded that Dr. Bail met this rather low
    threshold requirement.

[41]

That
    was a discretionary decision, which is entitled to deference from this court:
R.
    v. Shafia
, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 248. Another judge
    might well have concluded that Dr. Bail failed to meet even this low threshold
    test. I do not need to decide whether the trial judge erred on this point,
    however, because he clearly erred in principle in failing to proceed to the
    next step of the analysis  consideration of the cost-benefit analysis in Dr.
    Bails testimony. The trial judge did not reference this second component of
    his discretionary gatekeeper role. To the contrary, he appears to have believed
    that he was obliged to qualify Dr. Bail once he concluded that the witness met
    the initial
Mohan
threshold. There is, therefore, no decision to defer
    to and it falls to this court to conduct the second part of the analysis.

[42]

In
    my view, on a proper balancing, the potential risks of admitting Dr. Bails
    evidence far outweighed the potential benefit of the testimony. It was evident
    from a review of Dr. Bails report that there was a high probability that he
    would prove to be a troublesome expert witness, one who was intent on
    advocating for the defence and unwilling to properly fulfill his duties to the
    court.

[43]

The
    first red flag was Dr. Bails methodology. There is a real risk of unfairness
    in engaging in a hunt for discrepancies between what a plaintiff says during a
    short interview and what medical records dating back several years reveal. This
    unfairness is exacerbated when the expert denies the plaintiff the opportunity
    to explain the apparent discrepancies. As anyone with the slightest experience
    with litigation would attest to, oftentimes what appears to be an inconsistency
    in witnesss evidence is not an inconsistency at all. Oftentimes all that is
    required is a simple explanation to resolve what appears to be a conflict in
    what a witness said on two different occasions. Ms. Bruff-McArthur was not
    given an opportunity to offer such an explanation.

[44]

A
    related concern is that the vast bulk of the content in Dr. Bails report was
    the recitation of perceived inconsistencies between what Ms. Bruff-McArthur
    said in the independent medical examination and what the medical records
    revealed. In conducting that analysis, Dr. Bail was not bringing to bear any
    medical expertise. This was work that is routinely done by trial lawyers and
    law students or clerks in preparation for a cross-examination. Thus, the
    benefit of the evidence was very low, while the potential mischief was very
    high, especially given that none of these inconsistencies were put to Ms.
    Bruff-McArthur.

[45]

It
    was also clear from the report that Dr. Bail was coming dangerously close to usurping
    the role of the jury in assessing Ms. Bruff-McArthurs credibility. In the Summary
    and Conclusions section of his report he opines:

It is my opinion that if Ms. Bruff-McArthur was being
    forthright, this pattern of discrepancies and inconsistencies should not exist.
    I am therefore of the opinion that Ms. Bruff-McArthur has not been forthright
    with respect to her accident related claims and her provided medical and
    psychological history, and that the history which she has been providing over
    time since the accident cannot be relied upon. It is evident that Ms.
    Bruff-McArthur has serious credibility issues regarding her accident related
    claims.

In the penultimate paragraph of his report, he states:
    lack of reliability, credibility and validity are factors in this case.

[46]

Next,
    the whole tone of the report was a reliable predictor of Dr. Bails testimony.
    He goes out of his way to make points that are meant to damage Ms.
    Bruff-McArthurs case. For example, he opines on the views of several
    physicians who examined Ms. Bruff-McArthur, concluding that she misled them.
    Dr. Bail speculates that one of her therapists may have been improperly holding
    herself out as a qualified psychologist. He criticizes a psychiatrist who
    treated Ms. Bruff-McArthur, Dr. Arora, because they discussed personal family
    things, such as her daughters potty training and her sons school problems
    when psychotherapy was requested and paid solely in relation to treating accident
    related claims. Dr. Bail notes that Ms. Bruff-McArthur and Dr. Arora discussed
    the notions of karma and reincarnation. He chastises Dr. Arora for introducing personal
    religious beliefs in a therapy session. I note that there is no evidence that
    these topics reflect Dr. Aroras personal beliefs.

[47]

I
    could go on with further examples, but the point is that in his report Dr. Bail
    goes beyond a mere lack of independence and appears to have adopted the role of
    advocate for the defence. Given the paucity of psychiatric analysis in the
    report versus the high degree of potential prejudice in wrongly swaying the
    jury, a cost-benefit analysis would have invariably lead to the conclusion that
    Dr. Bail should have been excluded from testifying.

[48]

To
    be fair to the trial judge, he attempted to ameliorate these concerns by
    specifically instructing the witness not to testify regarding certain issues,
    such as his criticism of other doctors. However, as the trial judge essentially
    acknowledged in his Threshold Motion ruling, had he undertaken the cost-benefit
    analysis he would not have permitted Dr. Bail to testify.

(2)

During the Experts Testimony

[49]

As
    we know, the trial judge permitted Dr. Bail to testify and determined that Dr.
    Bail crossed the line of acceptable expert evidence. In order to analyze his
    response to this situation, it is first necessary to consider whether the trial
    judges concerns regarding Dr. Bails testimony were well founded. Assuming
    that they were, the next issue is what the trial judge should have done in the
    circumstances.

(1)

Did Dr. Bails Testimony Indicate Lack of Impartiality?

[50]

I
    have had the opportunity to consider in detail Dr. Bails evidence and I concur
    with the trial judge that it is most troubling. For present purposes, it is unnecessary
    to recount his testimony in full. Instead, I will focus on some of the more
    concerning aspects of his testimony.

[51]

First,
    I repeat my concern regarding his methodology. It was fundamentally unfair to Ms.
    Bruff-McArthur not to give her an opportunity to explain the alleged
    inconsistencies in the information she provided. As mentioned above, there is a
    real concern that Dr. Bail was usurping the role of the trier of fact in determining
    the issue of Ms. Bruff-McArthurs credibility. Despite that concern, I am
    willing to acknowledge that in a case such as this, where the existence and
    extent of the alleged injuries are not easily determined, consideration of the
    plaintiffs veracity is a necessary part of an independent medical examination.
    However, if Dr. Bail were serious about probing this issue, he would not have
    adopted this methodology. He would have reviewed the inconsistencies with Ms.
    Bruff-McArthur.

[52]

Second,
    and equally troubling, is that to the extent that Dr. Bail referred to the
    scientific testing conducted, he torqued the results so that they produced
    results that supported his conclusion. For example, he testified that Ms.
    Bruff-McArthur was administered a test where she was instructed to count
    backwards from 100 by 7s. He noted that she provided a few incorrect answers in
    her count. Dr. Bail considered this to be an inconsistency because she was able
    to get some of the count right but also made mistakes. For Dr. Bail,
    inconsistencies meant that the subject was not being truthful about her condition.

[53]

Dr.
    Bail then testified that in cases where a subject mathematically just doesnt
    have it together, he asks them to recite the months of the year in reverse
    order. Apparently, Ms. Bruff-McArthur did very well on this test, answering
    correctly and quickly. Dr. Bail testified that that this result was also an
    inconsistency because she did so well on that test and so poorly on the 7s
    test. So, despite the fact that Dr. Bail testified that he administers the
    month test as a check for those who are not mathematically inclined, he calls
    into question her credibility for doing well on the month test and faring poorly
    on the 7s test.

[54]

Dr.
    Bail went on to administer another mathematical test, requiring her to
    calculate how many $1.50 magazines could be purchased with $10. Ms.
    Bruff-McArthur did not do well on this test and Dr. Bail considered this to be
    an inconsistency. The other logical conclusion, that Ms. Bruff-McArthur was
    consistently weak in performing math exercises, seems not to have crossed his
    mind.

[55]

In
    short, the tests were deliberately interpreted to fit a theory of mendacity.
    Unless she got every question on every test correct, she was inconsistent and,
    in Dr. Bails opinion, inconsistency equated to an untruthful subject.

[56]

A
    third concern relates to a subtle point that demonstrates Dr. Bails
    fundamental misconception of his role. He questioned Ms. Bruff-McArthur
    regarding her physical limitations. It is, of course, perfectly appropriate for
    a psychiatrist conducting an independent medical examination to ask questions
    about a subjects physical injuries and resultant limitations. That information
    could provide useful context for the examination. However, Dr. Bail was quite
    open about the fact that he asked the questions for an entirely different
    purpose. He testified that he asked about physical limitations so that he could
    compare those answers to any future surveillance evidence he may receive. This
    is consistent with how Dr. Bail regarded the purpose of his review of the
    medical records. There is a troubling pattern that suggests that he understands
    his primary role to be to expose inconsistencies and not to provide a truly
    independent assessment of Ms. Bruff-McArthurs psychiatric condition.

[57]

Fourth,
    when Dr. Bail was cross-examined about his emphasis on perceived
    inconsistencies, he denied ignoring those parts of the medial records that did
    not fit his diagnosis. He explained their absence from his report on the basis that
    you cant put everything in your report. Later in his cross-examination, Dr.
    Bail stated, Im interested in the things that dont corroborate, not the things
    that do corroborate. Again, this testimony makes plain Dr. Bails lack of
    awareness of the need to be impartial as an expert witness.

[58]

Before
    turning to what the trial judge should have done in face of this testimony, I
    wish to correct one of his findings. The trial judge stated in his reasons on
    the Threshold Motion that Dr. Bail did not have any notes of his examination of
    Ms. Bruff-McArthur. Based on this observation, he concluded that Dr. Bail was
    making his testimony up as he went along to support his position.

[59]

That
    is not accurate. Dr. Bail did have notes. Indeed, the trial judge ruled that he
    could refer to them as he testified. It is not a fair conclusion that Dr. Bail
    was making up his testimony. Having reviewed his evidence carefully, I am of
    the view that there is no basis to conclude that Dr. Bail was anything but
    truthful in his testimony. I have concerns regarding Dr. Bails independence
    and his methodology; I do not have any concerns about his veracity.

(2)

What Should the Trial Judge Have Done in this Case?

[60]

Under
    the
White Burgess
framework, and in most other leading cases on the admissibility
    of expert evidence, the issue of admissibility is decided at the time the
    evidence is proffered and the expert witnesss qualification is requested by a
    party. To the extent that this is possible, it should be the norm:
R. v.
    J.-L.J.
, 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 28.

[61]

In
    the present case, however, the trial judge appears to have assumed that, once
    Dr. Bail was qualified as an expert, his gatekeeper role was at an end. The
    trial judge erred in law in reaching that conclusion.

[62]

A
    trial judge in a civil jury case qualifying an expert has a difficult task. She
    must make a decision based on an expert report that will, in most cases, never
    be seen by the jury. While the report provides a roadmap of the anticipated
    testimony and specific limits may be placed on certain areas of testimony, the
    trial judge obviously cannot predict with certainty the nature or content of
    the experts testimony.

[63]

Where,
    as here, the experts eventual testimony removes any doubt about her
    independence, the trial judge must not act as if she were
functus
. The
    trial judge must continue to exercise her gatekeeper function. After all, the
    concerns about the impact of a non-independent expert witness on the jury have
    not been eliminated. To the contrary, they have come to fruition. At that
    stage, when the trial judge recognizes the acute risk to trial fairness, she
    must take action.

[64]

Charron
    J.A. made this point in
K. (A.)
, writing as follows at para. 73:

In some cases it may be possible to rule on the admissibility
    of the proposed evidence on the basis of counsels submissions
    alone. However it may at times prove necessary to hold a
voir
    dire
in order to properly consider all relevant factors. Where the
    trial is before a jury and the question of admissibility cannot be clearly
    determined in a summary fashion, it may indeed be prudent to scrutinize the
    evidence during the course of a
voir dire
before admitting
    it.
While in some cases the ruling can be made early in the proceedings, in
    other cases, it may be only later in the trial that the value of the proposed
    evidence can be properly assessed.
For example, in this case, it was only
    after the main Crown witnesses had testified and the defence strategy became
    apparent that the determination of the admissibility of the expert evidence
    could properly be made. [Emphasis added and footnote omitted.]

And in a later decision in
R. v. Ranger
(2003),
    67 O.R. (3d) 1 (C.A.), at para. 63, Charron J.A. stated:

[The dangers of expert opinion evidence] must be considered in
    the balancing process that forms part of the test for admissibility. Further,
the
    trial judges gatekeeper function does not end with the ruling on admissibility
.
    The expert evidence must be carefully constrained in its presentation with a
    view to minimizing the associated dangers so that, in the end result, the judge
    is still satisfied that the probative value of the evidence exceeds its
    prejudicial effect and is properly admissible. [Emphasis added.]

[65]

As mentioned above, the cost-benefit analysis under the second
    component of the framework for admitting expert evidence is a specific
    application of the courts general residual discretion to exclude evidence
    whose prejudicial effect is greater than its probative value. This general residual
    discretion is always available to the court, not just when determining whether
    to admit an item of evidence, but after the admission stage if the evidences
    prejudicial effect is only revealed in the course of its presentation to the
    trier of fact.

[66]

An instructive discussion is found
in
R.
    v. White
,
2011 SCC 13,
[2011] 1
    S.C.R. 433,
a case that
dealt with the admissibility of
    post-offence conduct in criminal matters.
A
majority
of the Supreme Court stated
at para. 50:

Otherwise admissible evidence may still be removed from
    consideration by the jury on the basis that it is more prejudicial than
    probative. This may be achieved by refusing to admit the evidence at trial.
It
    can also happen that the disproportionately prejudicial nature of a certain
    item of evidence only becomes apparent in light of the evidence as a whole.
The trial judge may then instruct the jury in his charge that they may not
    consider a certain item of evidence in their deliberations. [Emphasis added.]

The discussion from
White
makes clear that
    the courts residual discretion to exclude prejudicial evidence is an ongoing
    one that continues throughout a trial. It may be invoked if prejudice manifests
    after initially admitting the evidence. Thus, because the second component of
    the framework for admitting expert evidence is an application of this residual
    discretion, the court has residual discretion to exclude expert evidence even
    after admitting it, if later in the trial prejudice emerges that was not
    apparent at the time of admission.

[67]

Given
    this ongoing gatekeeper discretion, the question remains of what, as a
    practical matter, the trial judge could or should have done in this case. His first
    option would have been to advise counsel that he was going to give either a
    mid-trial or final instruction that Dr. Bails testimony would be excluded in
    whole or in part from the evidence. Had he taken that route, he would have
    received submissions from counsel in the absence of the jury and proceeded as
    he saw fit. Alternately, he could have asked for submissions from counsel on a
    mistrial, again in the absence of the jury, and ruled accordingly. In the event
    that he had to interrupt Dr. Bails testimony mid-trial, he would have had to
    consider carefully how best to minimize the potential prejudicial effect of the
    interruption from the respondents perspective.

[68]

The
    point is that the trial judge was not powerless and should have taken action.
    The dangers of admitting expert evidence suggest a need for a trial judge to
    exercise prudence in excluding the testimony of an expert who lacks
    impartiality before those dangers manifest.

[69]

I
    am mindful that counsel for Ms. Bruff-McArthur did not seek an instruction regarding
    Dr. Bails evidence. The law is generally that the failure to object to a civil
    jury charge is fatal to a request for a re-trial on appeal based on
    misdirection or non-direction. However, this rule is subject to the exception
    that where the misdirection or non-direction resulted in a
substantial wrong or miscarriage of justice, it may warrant
    a new trial:
Pietkewicz v. Sault Ste. Marie District Roman Catholic
    Separate School Board
(2004), 71 O.R. (3d) 83
    (C.A.), at paras. 22-28; and
Briscoe Estate v. Canadian Premiere
    Life Insurance Co.
, 2012 ONCA 854, 113 O.R. (3d)
    161, at paras. 70-71
.
In my view, the admission of Dr. Bails testimony
    resulted in a miscarriage of justice.

[70]

I
    would go further and state that, given the importance of a trial judges on-going
    gatekeeper role, the absence of an objection or the lack of a request for a
    specific instruction does not impair a trial judges ability to exercise her
    residual discretion to exclude evidence whose probative value is outweighed by its
    prejudicial effect.

[71]

The
    respondent submits that even if this court concludes that Dr. Bails testimony
    should have been excluded, there is no basis to order a new trial because he
    was just one of many witnesses and his testimony likely did not have a significant
    impact on the jurys verdict.

[72]

It
    is impossible to gauge with any certainty the impact of Dr. Bails testimony. The
    fact that he was one of only two witnesses to testify for the defence suggests
    that his testimony may well have been an important factor in the jurys
    analysis of the case. In any event, a focus on the inability to measure the
    precise prejudice caused by the testimony misses the point entirely, which is
    that there has been a miscarriage of justice in this case. This court has a
    responsibility to protect the integrity of the justice system. This is not a no
    harm, no foul situation.  No doubt, another trial will be costly and time
    consuming, but it is necessary because the defence proffered the evidence of a
    wholly unsuitable expert witness.

D.      DISPOSITION

[73]

I
    would grant the appeal, set aside the judgment below, and order a new trial. I
    would award the appellants their costs of the appeal in the amount of $22,000,
    inclusive of fees, disbursements and applicable taxes.

[74]

The
    parties may make written submissions on the issue of the costs of the first
    trial.

C.W. Hourigan J.A.

I agree. P. Lauwers
    J.A.

I agree M.L.
    Benotto J.A.





[1]
On appeal, the appellants are represented by different counsel than the counsel
    they were represented by at trial.


