



COURT OF APPEAL FOR ONTARIO

CITATION: St. Marthe v. OConnor, 2021 ONCA 790

DATE: 20211108

DOCKET: C66771

Rouleau, Hoy and Thorburn JJ.A.

BETWEEN

Peter St. Marthe

Plaintiff (Respondent)

and

Leslie J. OConnor

Defendant (Appellant)

Alan L. Rachlin and James Pedro, for the appellant

James L. Vigmond, Brian M. Cameron and Liane J. Brown,
    for the respondent

Heard: September 23, 2021 by video conference

On appeal from the judgment of Justice Patrick Hurley of
    the Superior Court of Justice, dated March 11, 2019 and July 15, 2019, with
    reasons reported at 2019 ONSC 1585 and 2019 ONSC 4279.

Thorburn J.A.:

INTRODUCTION

[1]

The appellant, Leslie J. OConnor, appeals the order of the trial judge
    who discharged the jury and rendered judgment in favour of the respondent,
    Peter St. Marthe. The appellant seeks an order that the judgment be set aside
    and that a new trial be ordered.

BACKGROUND

[2]

This action arose from a motor vehicle accident that occurred on
    November 9, 2011. The respondents bicycle was hit by the appellants motor
    vehicle. The respondent claimed that he suffered soft tissue injuries that
    rendered him incapable of continuing to work in the construction industry. This
    required him to return to school to be retrained to enable him to pursue a more
    sedentary vocation.

[3]

On November 9, 2014, Dr. Mussett, an orthopaedic surgeon, assessed the
    respondent at the request of his accident benefits insurer. In his report,
    dated December 11, 2014, he stated that,

In my opinion his ongoing right upper back pain is related to
    his previous injury. The symptoms impair his ability to use his back and right
    arm with any strenuous activity.
This has resulted in the inability to
    perform expected duties at work without experiencing pain and discomfort
.
    It has also resulted in the inability to partake in recreational activities
    without experiencing pain and discomfort.

ANSWERS TO SPECIFIC QUESTIONS

1. Did the claimant sustain an
    impairment as a direct result of the motor vehicle accident?

Please describe.

In my opinion,
Mr. St. Marthe did sustain an impairment as a
    direct result of his accident
. His symptoms have been present since the
    time of the accident. He had no pre-existing condition or associated symptoms
    prior to his injury. His ongoing symptoms and his clinical findings are
    consistent with the mechanism of injury.

2. Is the proposed OCF 18 Treatment and Assessment Plan
    reasonable and necessary related to the impairments sustained in the motor
    vehicle accident? If no, please provide a complete explanation.

I believe the Treatment and Assessment Plan is reasonable and
    necessary in that
Mr. St. Marthe does require additional treatment. The
    treatment goals have been recognized including pain reduction, increase
    strength and increase range of motion
. [Emphasis added.]

[4]

He concluded that it was reasonable and necessary that the respondent
    receive additional treatment due to the accident.

[5]

Prior to his assessment of the respondent, he was only provided with
    forms from the insurer. He was provided no medical documentation. He did not
    see the respondent, nor did he review any medical reports after that date.

[6]

Four years later, the case went to trial by jury. Liability was conceded
    and the only issues to be determined were whether the lawsuit should be
    dismissed pursuant to s. 4 of the
Limitations Act, 2002,
S.O. 2002, c.
    24, Sched. B., and the pecuniary and non-pecuniary damages, if any, to be
    awarded to the respondent.

[7]

Dr. Mussett was called by the respondent as a non-party expert and his
    report was included in the joint document brief.

[8]

In examination-in-chief, Dr. Mussett testified about his findings and
    the conclusion in his report that the respondents Treatment and Assessment
    Plan was reasonable and necessary.

[9]

On cross-examination he was asked the following questions and gave the
    following answers:

Q. You are  you had three documents to look at when you saw
    Mr. St. Marthe? [Y]ou had an O-C-F-1, and O-C-F-24 and an O-C-F-18, does that
    look right?

A. If thats in the report No, I dont remember... [K]now that
    it  its  it hurts when you touch.

Q. Okay. Well, were talking about Mr. St. Marthe.

A. Yes.

Q. Okay. So then does it surprise you that he was working in
    construction? Or that he plays soccer?

A. Thats a tough question to answer. I mean, people do that...
    with amputated limbs, and  and bad joints because thats what they enjoy
    doing. People do that because they need an income.

Q. Yeah. But  okay, how about this? Would you agree with me
    that whatever it is that you found, this muscle spasm.

A. Yes. Was it enough to put him off work?

Q. Right.

A. No, I dont think so.

Q. Okay. And it wasnt enough  if I tell you he was playing
    soccer, its not enough to prevent him from playing soccer? Right?

A. Maybe playing goalie.

Q. Okay.



But if he enjoys doing that, he can still function.

Q. Right.

A. But it  its there. But people learn to get on with their
    lives.

Q. Right.
So its not disabling, this muscle spasm?

A. No.

Q. No.

A.

I dont think so.

Q. Okay. Did he talk to you about going to the gym or working
    out or anything like that?

A. I dont remember that.

Q. Okay. And you made the diagnosis, I take it, without any
    information about his EMG, or carpal tunnel diagnosis? The neurological stuff
    youd leave to...

A. Yes, I

Q. whoever was in charge?

A. I had enough findings...

Q. To find a muscle spasm?

A. ...to say my clinical diagnosis is yes, his main symptom is
    his back, but theres something else going on...

Q. Right.

A. which needs to be looked at.

Q. Okay. And so you dont  you made the diagnosis not knowing
    that further doctors around the road may have looked at them as being two
    separate things? Unrelated?

A. Yeah.

Q. Right? Okay. And again, for someone playing soccer and
    working in construction, and he went back  he went back to work the next
    season but at Home Building Centre.
Again, you agree with me, that whatever
    this muscle spasm is, its non-disabling, wouldnt prevent someone from
    working?
[Emphasis added.]

[10]

At this point, the respondents counsel objected and the trial judge
    addressed the objection to this question. The trial judge decided to allow the
    respondents counsel to re-examine Dr. Mussett.

[11]

On re-examination Dr. Mussett was asked, Over the course of your
    assessment, what if any energy did you direct towards considering Peter St.
    Marthes ability to work or inability to work? He replied, It would be a part
    of my general history, but not much more than that, if theres no specific
    question geared towards that, which there wasnt.

[12]

The respondents counsel brought a motion for an order discharging the
    jury. The respondent took the position that notwithstanding his right to
    re-examine, the cross-examination was seriously unfair, unexpected and elicited
    opinion evidence from Dr. Mussett on matters that were not included in his
    report. The respondent claimed this irreparably damaged the respondents
    principal claim that he was no longer able to work in construction.

[13]

After hearing the re-examination and the parties submissions on the
    motion for an order discharging the jury, the trial judge issued an order
    discharging the jury. At the conclusion of the trial, he awarded the respondent
    damages in the amount of $205,662.23 plus interest, costs and disbursements.

THE ISSUES: IMPROPER CROSS-EXAMINATION AND DISCHARGE OF THE
    JURY

[14]

The central issues on appeal are (i) whether the trial judge erred in
    ruling that counsel for the appellant improperly elicited inadmissible opinion
    evidence from Dr. Mussett with respect to the respondents ability to work, and
    (ii) whether the trial judge erred in discharging the jury.

THE PARTIES POSITIONS

[15]

The appellant claims that counsel is awarded wide latitude in conducting
    cross-examination and this should not change just because a witness is a
    non-party expert.

[16]

The appellant claims that Dr. Mussett expressed an opinion during his
    cross-examination that was based on his assessment of the respondents
    accident-related impairments, including the degree to which he believed the
    respondents spasms were disabling. As such, the cross-examination of Dr.
    Mussett was not improper. Moreover, even if the opinion exceeded the bounds of
    Dr. Mussetts assessment, a corrective instruction would have sufficed.

[17]

The appellant claims the right to trial by jury is a substantive right
    that should not be lightly interfered with and there was no basis in this case
    to discharge the jury. As such, he claims the trial judge erred in discharging
    the jury and seeks a new trial.

[18]

The respondent claims that the cross-examination of Dr. Mussett, in
    which Dr. Mussett was asked, this muscle spasm its not disabling, wouldnt
    prevent someone from working? was improper. The respondent claims (i) it went
    beyond the scope of admissible opinion evidence of a non-party expert, as the
    opinion was not formed or expressed during his involvement with the respondent
    and it was not contained in his report, (ii) it elicited opinion evidence that
    had not previously been disclosed and amounted to trial by ambush; and (iii)
    its probative value was outweighed by its prejudicial effect and as such, it
    was not admissible:
White Burgess Langille Inman v. Abbott and Haliburton Co.,
2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 23-24.

[19]

The respondent also claims the trial judges discretionary decision to
    discharge the jury warrants appellate deference. The trial judge witnessed the
    impact of Dr. Mussetts evidence and considered the effect of cautioning the
    jury about the conduct of appellants trial counsel a second time. His decision
    to discharge the jury was not an error. As such, the respondent claims the
    appeal should be dismissed.

ANALYSIS OF THE ISSUES

The First Issue: Whether the trial judge erred in ruling that
    counsel for the appellant improperly elicited inadmissible opinion evidence
    from Dr. Mussett

[20]

In addressing whether the trial judge erred in ruling that appellants
    counsel elicited inadmissible evidence from Dr. Mussett, I will review the
    limits placed on non-party experts in giving opinion evidence and then apply
    the legal principles to this case.

The Law of Expert Testimony

Expert Opinions Generally

[21]

In civil proceedings, experts retained by a party to testify in a
    proceeding must prepare an expert report to be shared with all parties prior to
    trial. This is provided for in r. 53.03 of the
Rules of Civil
    Procedure,
R.R.O. 1990, Reg. 194. These experts are referred to as
    litigation experts:
Westerhof v. Gee Estate,
2015 ONCA 206, 124 O.R.
    (3d) 721, at para. 6, leave to appeal refused, 36445 (October 29, 2015) and
    36451 (October 29, 2015).

[22]

The expert report includes an outline of the litigation experts opinion
    and anticipated testimony. This sets limits on the expert testimony that may be
    given and ensures that all parties have proper notice of the roadmap for the
    opinion evidence to be provided:
Bruff-Murphy v. Gunawardena
, 2017
    ONCA 502, 138 O.R. (3d) 584, at para. 62, leave to appeal refused, [2017]
    S.C.C.A. No. 343. The report also includes an acknowledgment of the experts
    duty:
Imeson v. Maryvale (Maryvale Adolescent and Family Services),
2018
    ONCA 888
,
143 O.R. (3d) 241, at para. 60, leave to appeal refused,
    [2019] S.C.C.A. No. 35.

[23]

Litigation experts are distinguished from non-party experts. In
Westerhof,
at paras. 60-62, this court defined a participant or non-party expert as
    a witness with special skill, knowledge, training, or experience who has not
    been engaged by or on behalf of a party to the litigation. Non-party experts
    are subject to different rules than litigation experts.

Non-Party Expert Evidence

[24]

Non-party medical experts such as Dr. Mussett who have special skill,
    knowledge, training, or experience, may give opinion evidence for the truth of
    its contents provided the opinion is given as part of the exercise of their
    skill and knowledge while observing or participating in the events at issue,
    the opinion is not a complex vocational opinion requiring highly specialized
    expertise, and it was disclosed to the opposing party:
Westerhof,
at
    paras. 60-62, 165.

[25]

Non-party expert opinions are usually contained in clinical notes and
    records, or reports prepared for the purpose of consultation and treatment:
Imeson,
at paras. 61-63.

[26]

A non-party expert need not provide a r. 53.03 expert report, where
    the opinion is based on the witnesss observation of or participation in the
    events at issue and the opinion was formed as part of the exercise of skill,
    knowledge, training, and experience while observing or participating in the
    events:
Westerhof,
at para. 60.

[27]

One reason the requirement to provide a r. 53.03 expert report does not
    generally apply to non-party experts, is that disclosure problems do not exist
    in relation to the opinions of non-party experts requiring that they comply
    with r. 53.03. Non-party experts typically prepare documents summarizing
    their opinions contemporaneously with their involvement in the events. These
    summaries, or the experts notes and records, can be obtained through the
    discovery process:
Westerhof
at para. 85.

[28]

Where the opinion evidence extends beyond the witnesss observation of
    or participation in the events and the opinion was not formed while observing
    the events, the expert must comply with the requirements in r.
    53.03 with respect to the portion of the opinion that exceeds these
    limits:
Westerhof
, at para. 63. Rule 53.03 provides that experts must
    include the instructions given, a summary of the opinion, and the reasons for
    the opinion, among other requirements.

[29]

Problems arise where disclosure of an opinion of a non-party expert is
    given only on the eve of or during the trial:
Westerhof,
at para. 90.

[30]

It is not an error for a trial judge to prevent a non-party expert from
    giving opinion evidence that goes beyond the experts observations and comments
    in the original report if the opinion was not disclosed well in advance of
    trial:
Hoang v. Vicentini,
2016 ONCA 723, 352 O.A.C. 358, at para. 30.

The Judges Role in the
    Admission of Evidence

[31]

In
White Burgess
, the
    Supreme Court established a two-part framework for admitting expert evidence.
    First, the court must assess whether the opinion evidence meets the threshold
    requirements of admissibility: relevance, necessity, absence of an exclusionary
    rule, and has been provided by a properly qualified expert:
White
    Burgess,
at para. 23; see also
R. v. Mohan,
[1994] 2 S.C.R. 9, at pp. 20-25. If it does, the court engages in a
    discretionary analysis to determine if its probative value outweighs its
    prejudicial effect:
White Burgess,
at para.
    24.

[32]

As part of its gatekeeper function, the court may exclude evidence from
    a non-party expert if it does not meet the test for admissibility:
Westerhof,
at para. 64;
Imeson,
at
    para. 83.

Analysis of the Evidence in This Case

[33]

As a non-party expert, Dr. Mussetts evidence was limited to his
    opinions based on the skill and knowledge he exercised while observing the
    respondent during his one and only assessment of the respondent in 2014, four
    years before trial.

[34]

In 2014, Dr. Mussett determined that the respondents symptoms impair
    his ability to use his back and right arm with any strenuous activity. This has
    resulted in the inability to perform expected duties at work without
    experiencing pain and discomfort. It has also resulted in the inability to
    partake in recreational activities without experiencing pain and discomfort.

[35]

At no time prior to his cross-examination at trial was Dr. Mussett asked
    to assess the respondents ability to return to work. Nor were there any notes
    or records of any such opinion being sought or offered at any other time prior
    to trial.

[36]

In the appellants counsels cross-examination of Dr. Mussett at trial,
    counsel sought, and Dr. Mussett gave, opinion evidence for the first time, that
    the respondents muscle spasm condition was not enough to prevent him from
    working and was not disabling.

[37]

By the time he gave his testimony, not only had Dr. Mussett not seen the
    respondent for four years, he had not reviewed any medical documentation since
    that time, and his opinions were therefore limited to information he had at the
    time of his one-time assessment in 2014.

[38]

Because the opinion went beyond the scope of the assessment and
    observation, the court could have required Dr. Mussett, as a non-party expert,
    to comply with r. 53.03 with respect to the portion of his opinion extending
    beyond the scope of his role:
Westerhof
, at para. 64.

[39]

However, because there was no indication before his cross-examination
    that this opinion would be solicited from Dr. Mussett, he could not be ordered
    to comply with r. 53.03 with respect to the portion of his opinion evidence
    extending beyond the limits of his role as a non-party expert. This evidence
    was elicited in front of the jury.

[40]

Dr. Mussetts opinion about the respondents ability to return to work
    was not probative as, unlike other litigation experts who gave opinion evidence
    at trial, it was not based on a current assessment of the respondents
    accident-related impairments as Dr. Mussett had not seen the respondent for
    four years or reviewed his medical records.

[41]

On the other hand, his opinion was very prejudicial, as it addressed the
    central issue at trial of the respondents past and future income loss which
    was contingent on the jurys assessment of his ability to work and disability
    and went beyond the scope of his assessment in December 2014. Dr. Mussett was
    also determined by the trial judge to be an impressive witness and was
    perceived as a neutral and impartial expert.

[42]

Therefore, the prejudicial effect of Dr. Mussetts evidence on the
    respondents employability and disability exceeded its probative value, and it
    did not meet the
White Burgess
test for admissibility.

[43]

The trial judge therefore appropriately determined that the
    cross-examination was improper. He allowed re-examination of Dr. Mussett and
    then assessed whether the re-examination undid the damage caused by the
    cross-examination or whether he needed to fashion another remedy.

The Second Issue: The Trial Judges Decision to Discharge
    the Jury

[44]

After considering the matter, the trial judge decided to discharge the
    jury.

[45]

In determining whether the trial judge erred in so doing, I will first
    review the law regarding trial judges exercise of discretion to discharge a
    jury and then apply the legal principles to this case.

The Law on Discharging a
    Jury

[46]

The right to a jury trial is a substantive right:
Cowles v. Balac
(2006),
    273 D.L.R. (4th) 596 (Ont. C.A.), at para. 36. After deciding that a particular
    reference before a jury is prejudicial, the trial judge must determine whether
    the prejudice is so severe that specific instructions cannot dispel that
    prejudice. The jury should only be discharged if the prejudice cannot be cured.
    In most cases, the trial judge will be able to fashion a remedy short of
    discharging the jury:
Hamstra (Guardian ad litem of) v. British Columbia
    Rugby Union,
[1997] 1 S.C.R. 1092, at paras. 17, 23.

[47]

Discharging a jury is a drastic remedy:
Brady v. Lamb
(2005)
,
78 O.R. (3d) 680 (C.A.), at para. 13.

[48]

However, a trial judges decision to discharge a jury is a discretionary
    decision that will not be interfered with on appeal unless it was exercised
    arbitrarily or capriciously or was based upon a wrong or inapplicable principle
    of law:
Cowles v. Balac
, at paras. 36-42, leave to appeal refused,
    [2006] S.C.C.A. No. 496, citing
Kostopoulos v. Jesshope
(1985), 50
    O.R. (2d) 54 (C.A.) at p. 69, leave to appeal refused, [1985] S.C.C.A. No. 93.

Analysis of the Evidence Regarding the Decision to Discharge
    the Jury in This Case

[49]

The trial judge articulated clear and cogent reasons for discharging the
    jury. He held that trial fairness dictates that the jury be discharged and the
    trial continue before me alone because:


i.

Dr. Mussett was a most impressive witness whose evidence would have
    had a significant impact on the jury;


ii.

He was seen as a neutral non-party expert, supportive of the respondent
    (in that he approved his Treatment and Assessment Plan for additional
    treatment), which would add to his credibility about the extent of the
    respondents disability and employability;


iii.

The appellants counsel at trial gave no advance warning that she would,
    in effect, treat Dr. Mussett as a litigation expert and solicit opinions beyond
    the scope of his report. If she had given notice, a
voir dire
would
    have been held on the scope and admissibility of his assessment, and the trial
    judge could have given a mid-trial instruction;


iv.

His opinion evidence on cross-examination at trial that the respondent
    could work in the construction industry could have a serious adverse impact on
    the respondents central claim for past and future income loss, based on his
    employability as a construction worker; and


v.

If the trial judge gave a corrective instruction, it would have to be a
    strong one, and he would have to comment on the conduct of trial counsel for
    the appellant. This would be his second instruction about her conduct and might
    cast the counsel in an unfavourable light with the jury, causing the jurys
    view of her for the balance of the trial to be unfairly compromised. The trial
    judge determined that granting a mistrial would cause significant delay.

[50]

He therefore concluded that Dr. Mussetts opinion evidence could have a
    serious adverse impact on the case. He held that, Dr. Mussetts evidence was
    simply too impactful for the jury to disregard it and it would inevitably
    influence their assessment of the other expert testimony in this case and that
    justice to the parties would be best served by discharging the jury and
    continuing the trial before him alone.

[51]

The trial judge was in the best position to assess the potential effect
    of Dr. Mussetts testimony on members of the jury in respect of the
    respondents claim for past and future income loss.

[52]

Policy concerns about the importance of giving notice of evidence to be
    called and the avoidance of trial by ambush, articulated in
Ault v. Canada
    (Attorney General)
(2007), 50 C.P.C. (6th) 316 (Ont. S.C.), at para. 22,
    are also present in this case.

[53]

I see no basis to interfere with the trial judges discretionary
    decision to discharge the jury.

CONCLUSION

[54]

For the above reasons, I agree that Dr. Mussetts evidence exceeded the
    bounds of admissible non-party expert opinion evidence.

[55]

Unlike the expert evidence discussed in
Westerhof
,

Dr.
    Mussetts opinion was not formed at the time of his treatment of the
    respondent; it was expressed for the first time on cross-examination at trial.
    Dr. Mussett could not meaningfully assess the respondents ability to work as
    at the time of trial he had not seen the respondent for four years and had not
    been provided with any medical documentation and his opinion at the time of
    trial therefore extended beyond the scope of his observations at the time of
    his assessment. That testimony would have been central to the outcome of the
    trial on the issue of damages. The prejudicial effect of Dr. Mussetts evidence
    therefore exceeded its probative value.

[56]

As the evidence had already been adduced in front of the jury, and as
    the judge had already given another, unrelated instruction concerning the
    conduct of counsel for the appellant, the trial judge appropriately determined
    that it could not be cured by a corrective instruction. For these reasons, I
    see no error in the trial judges exercise of his discretion to discharge the
    jury and continue with a trial by judge alone and I would dismiss the appeal.

[57]

Costs to the respondent in the amount of $23,338 as agreed by the
    parties.

Released: November 8, 2021 P.R.

J.A. Thorburn J.A.

I agree. Paul
    Rouleau J.A.

I agree. Alexandra Hoy J.A.


