…in his report
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 should have been excluded from testifying.
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 thatLessons Learned The largest takeaway from this case is best summarized by the Court of Appeal itself when it stated:
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 testimony mid-trial, he would have had to consider carefully how best to minimize the potential prejudicial effect of the interruption from the respondent’s perspective.
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.AtWise Health Law we have significant experience and expertise assisting health professionals in the civil and regulatorycontexts, including advising health professionals about participating in trials as expert witnesses. We are highly knowledgeable and passionate about what we do. Contact usonline, or at416-915-4234 for a consultation.
Earlier this year, Wise Health Law succeeded on a motion for summary judgment in a dental malpractice case on the basis that the limitation period had expired before the Statement of Claim was issued. The (unreported) decision was delivered orally on the day of the motion.
In part, the plaintiff argued that she did not discover her claim until the Royal College of Dental Surgeons of Ontario (the “RCDSO” or “College”) rendered its decision, as she did not know if the defendant was negligent when she complained to the RCDSO, but merely had a “suspicion”.
In the midst of COVID-19, the proceedings of many health colleges, and consequently of the health professionals they regulate, have been in limbo while everyone finds a way forward.
On March 25, 2020, the Ontario government enacted the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020 (the “Act”) to help the process along.
The Act empowers statutory tribunals with more discretion over how proceedings before them are held.
Effective 11:59 p.m. on March 24, 2020, the Ontario government ordered the closure of “non-essential” workplaces. The list of “essential” workplaces included “health care professionals providing emergency care including dentists, optometrists and physiotherapists”.
The College of Chiropractors of Ontario (“CCO”) interprets this list as including chiropractors, and we agree.
So the question becomes – what is “emergency care”?