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Winter 2017 – Newsletter

Welcome to In|Sight, Rogers Partners’ quarterly newsletter that offers our unique perspective on relevant legal issues and the internal happenings of the firm.

Distracted Winter Driving

By Brian Sunohara

In House v. Baird, 2017 ONCA 885, the plaintiff was operating his friend’s car in rural Ontario.  Three people, including the owner of the vehicle, were passengers.  The plaintiff lost control of the car and collided with another vehicle in the opposite lane.

The plaintiff sued the owner of the vehicle he was operating, as well as the driver of the vehicle that he collided with and the municipality.

There was evidence of the plaintiff and his passengers smoking marijuana on the evening of the accident.  In fact, the plaintiff was smoking marijuana while he was driving.

The plaintiff was also distracted because he had learned earlier in the day that his 16 year old girlfriend was pregnant.  He was upset about this.

The rear tires on the plaintiff’s vehicle were worn beyond acceptable limits.  The front and rear tires were mismatched and over-inflated.  According to an expert, the vehicle was not safe to be driven on anything but a clear, dry road.  There was some evidence of the road being slippery.

Trial Decision

The plaintiff and the owner of the vehicle were both found to be 50% liable.  No liability was found on the other driver or on the municipality.

The trial judge indicated that unanticipated ice formed on the highway less than one hour before the accident occurred and that the ice had melted or was melting to slush at the time of the accident.  He said that the highway was slippery in at least some spots.

According to the reasons of the trial judge, the municipality had an adequate system for call-out of winter maintenance of its roads.  Further, the evidence did not support a finding that the section of the highway where the accident occurred was an area of concern.

It was found that the plaintiff was probably distracted as a result of learning of his girlfriend’s pregnancy and smoking marijuana during the drive.  The trial judge also concluded that there was some evidence of the plaintiff driving over the speed limit and not adjusting his speed for the conditions.

The trial judge stated that the condition of the tires on the vehicle created a risk of loss of control, especially on a snowy, slushy or icy roadway, and particularly if a driver was driving too fast for the conditions.

The trial judge held that it was not possible to determine to what degree the defective tires, the distracted driving, and the speeding contributed causally to the accident.  Therefore, he applied section 4 of the Negligence Act, which provides that where it is not practicable to determine the respective degrees of fault or negligence between parties, then the parties are deemed to be equally at fault or negligent.

Appeal Decision

On appeal, the plaintiff argued that liability should have been found on the municipality.  The Court of Appeal disagreed.

The Court held that the trial judge instructed himself of the proper test.  In particular, a municipality’s duty of repair is limited to maintaining its roads to enable ordinary drivers exercising reasonable care to use the roads safely.

Further, the Court referred to prior decisions which indicate that a municipality is not to be treated as an insurer of the safety of the users of its roads by imposing overly onerous maintenance obligations.  A municipality’s failure to salt or sand its roads does not automatically expose it to civil liability.  The driving public cannot expect municipalities to keep roads free and clear of snow and ice at all times during the winter.

Moreover, the Court found it was reasonable for the trial judge to conclude that the municipality met the statutory defences under section 44(3) of the Municipal Act.

First, the municipality could not reasonably have known about the state of non-repair of the highway because the formation of ice was unanticipated and the section of the highway was not an area of concern.  Secondly, the municipality’s system for winter road maintenance was a reasonable one for a lower-tier municipality, and the steps taken by the municipality were in accordance with its system for winter road maintenance.  Thirdly, the municipality met the requirements under the Minimum Maintenance Standards.

The plaintiff also argued that the finding of 50% contributory negligence was too high.  The Court of Appeal disagreed, noting that an appellate court should not vary an apportionment of negligence at trial except in very strong and exceptional circumstances, unless an error in law was made or there was a misapprehension of some material fact.

The Court stated that there was clearly evidence from which the trial judge could infer that the plaintiff was negligent in failing to adjust his speed for the conditions and that he was upset about his girlfriend’s pregnancy.  Further, there was direct evidence of the plaintiff smoking marijuana while driving.

The Court further indicated that the trial judge’s decision to apply section 4 of the Negligence Act and apportion liability on a 50/50 basis did not disclose an error.

The appeal was dismissed.


Drivers who operate vehicles in a distracted or impaired manner, including under the influence of marijuana, will be held accountable for their own actions.

Owners of vehicles must make sure that their vehicles are in proper condition, particularly for winter driving.

Drivers cannot expect roads to be free and clear of snow and ice at all times during the winter.  A municipality is required to maintain its roads to enable ordinary drivers exercising reasonable care to use the roads safely.

When is Negligence Gross: A Commentary on Costerus v. Kitchener (City)

By Stephen G. Ross and Andrew Yolles

In the recent trial decision of Costerus v. Kitchener (City), 2017 ONSC 6030, the City of Kitchener was held to be grossly negligent for failing to clear its sidewalks of ice, upon which the plaintiff slipped and injured herself. This decision provides an interesting analysis of the law of gross negligence as it relates to a municipality.

Section 44 of the Municipal Act, 2001, S.O. 2001, c. 25, creates an obligation on a municipality to keep all highways under its jurisdiction (which includes city roads and sidewalks) in a reasonable state of repair, and imposes liability on the municipality for failing to meet this obligation.

However, section 44(3) of the Act creates a defence for municipalities against such liability, if the municipality can prove that either it did not and could not reasonably have been expected to know about the state of repair complained of, or that it took reasonable steps to prevent the default of its obligation under the Act from arising.

There is a further defence available under section 44(3) of the Act if minimum maintenance standards set out in the regulations under the Act applied to the highway in question at the time of the default and were met, but this issue did not arise in this case.

Section 44(9) of the Act creates an additional barrier to recovery against a municipality for claims for personal injury caused by snow or ice on a sidewalk.  In such cases, the plaintiff must prove not only negligence, but gross negligence, on the part of the municipality in order to establish liability.

In coming to his determination that the City of Kitchener met this increased level of negligence, Justice Nightingale placed a great deal of reliance on the following facts:

  • The City had received weather reports to suggest that temperatures were going to fluctuate overnight the night prior to the plaintiff’s fall, creating a thaw-freeze situation.
  • The plaintiff’s fall occurred in an area near a school with high pedestrian traffic.
  • The City did not, in fact, inspect or spread sand or salt in the area that morning, despite knowing of the potential thaw-freeze situation.

However, Justice Nightingale seemed most compelled by the City’s inconsistent policy with respect to overnight and early morning winter maintenance.

The evidence at trial was that City maintenance workers began their shifts at 7:00 a.m., and although the City had a policy that these workers could be called in to start their shifts earlier as needed if there was 8 cm of snow, there was no such policy in place to allow these workers to be called in early to combat freezing rain or thaw-freeze situations, which are arguably more dangerous. As a result, the City maintenance supervisors were unable to call in workers early to address this dangerous issue.

In deciding that the City was grossly negligent in this case, Justice Nightingale reviewed the applicable appellate authorities on the gross negligence standard, including the Supreme Court decision of Holland v. Toronto (City).

In Holland, the Supreme Court held that gross negligence means “very great negligence”.  The factors to be considered include the extent of the risk created by the dangerous condition, as well as the character and duration of the neglect by the municipality, including the comparative ease or difficulty of addressing the issue.

Justice Nightingale also relied on the Ontario Court of Appeal decision of Crinson v. City of Toronto, which held that gross negligence does not need to be wilful, wanton, or flagrant conduct, and that the determination of gross negligence is highly fact-specific.

The end result is that the City of Kitchener was found to be 50% liable. The plaintiff was also found to be 50% liable because she was wearing running shoes instead of winter boots and because she had the ability to reasonably avoid the icy sidewalk.

Municipalities might take caution from this decision. Plaintiffs injured on icy or snowy sidewalks have an increased burden of proof, in that they must prove not only negligence but gross negligence. However, the courts may be inclined to find gross negligence where there are absent or inconsistent policies for inspection and maintenance of sidewalks.

This may be particularly so where such policies of inspection and maintenance of sidewalks are needed to address situations where inclement weather likely to give rise to slippery conditions are predicted, and where areas with increased pedestrian traffic are not given special attention by municipal maintenance workers.

No Consent: Son Takes Car Without Permission

By Anita M. Varjacic and Gemma Healy-Murphy


Recently, in Wagner v. Fellows et al, the Court considered several issues arising from a factual matrix where the teenage driver was found not to have had his mother’s consent to possess or operate her motor vehicle at the time of the accident.

On consent of all parties, Justice Mullins bifurcated the trial, agreeing to first decide a number of discrete liability and coverage issues by judge alone, with the issue of the plaintiffs’ damages to be determined by a jury at a later date.


At the time of the accident, the defendant driver was 16 years old and had just obtained his G1 driver’s licence, which required that he have a fully licensed driver with him when operating a motor vehicle. He had driven his mother’s vehicle, with her consent and with her in the vehicle on a couple of occasions prior to the accident.

The defendant driver wanted more practice driving, so decided to take matters into his own hands and began to regularly take his mother’s vehicle for “joyrides” in the late hours of the night, after she had gone to bed and returning before she woke up. He would take the car keys without her knowledge, which were usually in her purse in her bedroom where she was sleeping. He would also make every effort to return the vehicle to its original parked state as left by his mother, including the gas and the position of the seats and the mirrors.


The driver’s negligence was not contested at the conclusion of the hearing. He admitted to falling asleep behind the wheel and losing control of the vehicle, causing it to roll and injuring the plaintiff, who was a sleeping passenger in his vehicle at the time.

An issue before the court was whether the mother was negligent for failing to secure her vehicle and whether she was liable as owner, assuming that her son had her consent to possess and operate her vehicle on a highway.

The Court easily concluded that the mother did not know her teenage son was taking her vehicle for “joyrides” so as to amount to her express consent. The crux of the issue was whether her son had her implied consent to possession of the vehicle on a highway at the material time, given all of the circumstances.

The Court rejected these arguments and found that the circumstances under which the defendant driver gained access to the keys and the vehicle did not give rise to implied consent. This finding was despite some evidence that the mother may have had some prior suspicions that her son was taking her vehicle without permission.  The Court concluded that the owner was not liable for the driver’s negligence pursuant to the provisions of section 192(2) of the Highway Traffic Act.

The Court further rejected the argument that the mother was negligent in the manner and extent to which she secured her car keys. In fact, it was commented that she “probably exceeded the standards of most” by keeping the keys in her purse, which she testified was always near her person, even while sleeping.

Turning to the negligence of the injured plaintiff, the Court declined to make any finding of contributory negligence on him for his alleged failure to wear his seatbelt.  This was because there was no evidence, expert opinion or otherwise, addressing the causal relationship between the injuries sustained by the plaintiff and his failure to wear a seatbelt.

Nor was the plaintiff found to be responsible in any way for choosing to get, and stay, in the vehicle that night. This was despite his knowledge that the driver had consumed some alcohol at the party they had attended prior to the accident and that he was speeding while driving. The Court found there was no evidence the alcohol had any effect on his driving or alertness, while there was nothing untoward in his driving irrespective of his speeding.


The plaintiff’s success on the negligence issues was short lived.  The Court also considered whether the plaintiff ought reasonably to have known that the driver did not have the owner’s/mother’s consent to operate/possess the vehicle.  The Court concluded that he should have.  The driver has consumed alcohol, had little driving experience and could not have yet obtained an unrestricted driver’s licence.  There was no reasonable basis from which he could have concluded the vehicle was taken for “aimless travel” with consent.

As a result, the Court concluded that he was not eligible for uninsured motorist coverage from the defendant insurer.  The plaintiff must instead look to the Motor Vehicle Accident Claims Fund for indemnity for his damages.


The decision is refreshing as the Court looked at all of the factual circumstances surrounding the driver’s possession of the vehicle, including what his mother knew or ought to have to known about his nighttime activities. Her prior suspicions were not enough and the Court quite rightly concluded that consent could not be inferred from the facts at hand.  There were simply no facts that supported an implied consent to possession of the vehicle.

While there may be a temptation to find implied consent given the insurance coverage implications for injured plaintiffs, consent, express or implied, should only be found in the clearest of cases. This was not one of them.

Breaches of Privacy in the Health Care System

By Thomas Macmillan

The Ontario Information and Privacy Commissioner will soon have a lot more data on actual or potential privacy breaches, thanks to a new regulation which affects health care providers.

In response to some relatively high-profile breaches of individuals’ health and personal information, Regulation 224/17 to the Personal Health Information Protection Act, 2004 imposes additional requirements on “health information custodians,” a category of entities that includes pharmacies, health care practitioners, home care providers, hospitals, laboratories, and retirement homes.

The Regulation came into force on October 1, 2017.

The new Regulations do not expand on the existing precautionary steps that health information custodians must take to protect the personal health information of individuals.  Rather, the changes impose new obligations to report actual or potential privacy breaches.

Report to Commissioner

A health information custodian must now report to the Commissioner when the custodian has reasonable grounds to believe that any of the following has taken place with respect to personal health information in its custody or control:

  • that it was used or disclosed without authority; or
  • that it was stolen.

In addition, the custodian must report to the Commissioner if it has reason to believe that any loss or unauthorized use or disclosure is part of a pattern of losses.  A custodian must also report to the Commissioner if it considers the breach to be significant, due to it relating to:

  • sensitive information;
  • a large volume of information;
  • information from a large number of individuals; or
  • the involvement of more than one health information custodian or agent in the loss.

Custodians had previously been required to notify individuals, within 30 days, in the event of a loss or unauthorized use or disclosure of personal health information.  Now, however, the Commissioner must also be put on notice.

Report to College

Furthermore, custodians must now also report to a professional College in the event that an employee who is a member of the College is either terminated, suspended, resigns, or is the subject of disciplinary action related to the actual or suspected loss or unauthorized use or disclosure of personal health information.

Annual Report

Starting on March 1, 2018, custodians must keep track of each instance of a breach of personal health information.  An annual report must be filed by custodians, setting out the number of breaches.  The first report is to be filed on March 1, 2019.


Most health information custodians already have in place the necessary mechanisms for tracking actual or potential privacy breaches, and have been reporting such breaches to individuals.

What is new is an increased concern by custodians of attracting unwanted attention from the Commissioner.  It can and should be assumed that focus will be paid to the annual reports, and those custodians with less than stellar figures can expect to hear from the Commissioner.

It can also be assumed that the Office of the Commissioner will take these changes as a mandate to be more proactive.  The message to the health care industry with the passage of these new Regulations is that Province is unhappy with the level of compliance with existing privacy laws, and that it plans on more closely monitoring the landscape.

From Augustin to the LAT: The Need to Provide Proper Notice in the Denial of Medical/Rehabilitation Benefits

By Alon Barda

A recent reconsideration decision from the Licence Appeal Tribunal in M.F.Z. v Aviva Insurance Canada[1] has followed a FSCO decision and once again highlighted the importance of providing the required reasoning when denying medical/rehabilitation benefits and the significant consequences resulting from non-compliance.

Section 38(8) of the SABS sets out what the insurer must do when it denies medical/rehabilitation benefits. This includes identifying the goods and services described in the treatment plan that the insurer agrees to pay for; any the insurer does not agree to pay for; and the medical reasons and all of the other reasons why the insurer considers any goods or services, or the proposed costs of them, not to be reasonable and necessary.

Section 38(9) highlights that, if the insurer believes that the Minor Injury Guideline (MIG) applies to the insured person’s impairment, the notice under subsection (8) must so advise the insured person.

Under s. 38(11), if the insurer fails to give notice in accordance with s. 38(8), the insurer is prohibited from taking the position that the MIG applies and is required to pay for all goods, services, assessments and examinations described in the treatment plan that relate to the period starting on the 11th business day after the day the insurer received the application and ending on the day the insurer gives notice described in subsection.

In the FSCO decision of Augustin and Unifund Assurance Company (FSCO A12-000452, November 13, 2013),[2] Arbitrator Sapin emphasized the need for the insurer to provide medical reasons when denying a medical benefit and also to specify that it believes the MIG applies rather than using vague language. Arbitrator Sapin ultimately found the insurer responsible for full payment of the treatment plans in dispute due to the inadequate reasons provided.

In the reconsideration decision of M.F.Z. v Aviva, Executive Chair Linda Lamoureux was asked to reconsider a decision by the Tribunal wherein it found that, since Aviva’s responses and denials of certain treatment plans failed to comply with the notice requirements under s. 38(8) and s. 38(9), Aviva was prohibited from ever taking the position that the MIG applies and was responsible for payment of the benefits.

In her decision, the Executive Chair highlighted that a reconsideration as set out in rule 18.2(b) of the Tribunal’s Rules of Practice and Procedure will not be granted unless the Tribunal made a significant error in law or fact such that the Tribunal would likely have reached a different outcome.

The Executive Chair noted that the Tribunal found that Aviva did not provide medical reasons and all other reasons why it considered the treatment plans at issue not to be reasonable and necessary and was, therefore, non-compliant with s.38(8).

In addition, Aviva did not comply with s. 38(9) as it did not advise the claimants that the MIG applies. As such, the Tribunal held that the insurer was prohibited from taking the position that the claimant’s impairments fell within the MIG and was required to pay for all the goods and services recommended until it gave the claimants proper notice.

The Executive Chair noted that the Tribunal was “guided” by the decision of Arbitrator Sapin in Augustin and she agreed with the Tribunal’s determination that the medical reason provided by Aviva did not constitute a medical reason at all (i.e. “the frequency of care does not generally diminish over time”) and, therefore, did not comply with s. 38(8).

Moreover, while Aviva referenced the $3,500 MIG limit, it did not state that the insurer believes the MIG applies. As such, she agreed with the Tribunal that Aviva was non-compliant with s. 38(9) and that the insurer is prohibited from raising the MIG in the context of the treatment plans at issue and throughout the entire accident benefits claim (the insurer may still dispute entitlement to future medical benefits on the basis that the treatment is not reasonable or necessary).

Notably, the Executive Chair found that the Tribunal made an error with respect to the quantum of entitlement of one claimant since Aviva had subsequently cured its non-compliance as outlined in s. 38(11)2 (specifying that the insurer shall pay for benefits until it gives proper notice). As such, she held that Aviva is not responsible for payment of treatment incurred after the date proper notice was given.

This decision demonstrates the importance of strictly complying with s. 38(8) and s. 38(9) of the SABS in order to preserve the insurer’s ability to dispute the medical/rehabilitation benefit claimed and also to preserve the right to assert that the claimant’s injuries fall within the MIG. A failure to do so will result in the insurer being required to pay for the benefit claimed.

However, it is important to remember that in the event there is deficient notice given, the insurer must take steps to ensure that errors are remedied and proper notice is given so as to limit the amount the insurer must pay to only the benefits incurred during the period of non-compliance.

[1] 2017 CanLII 63632 (ON LAT)

[2] This was the first decision to interpret the notice requirements in the SABS – O. Reg. 34/10, which includes a requirement for insurers to provide “medical reasons and all of the other reasons” when denying medical and rehabilitation claims.

Denying Disability Benefits: Good Faith and the Limitation Period

By Thomas Macmillan

On December 21, 2017, the Supreme Court of Canada denied leave to appeal the Ontario Court of Appeal case of Usanovic v. La Capitale Financial Security Insurance Company, 2017 ONCA 395.  The Ontario Court of Appeal had rejected the plaintiff’s attempt to broaden of the duty of good faith on insurers, and clarified the test of when an insurer can rely on a limitation period defence in a claim for disability benefits.  Disability insurers across Canada will breathe easier in 2018, given the Supreme Court’s denial of leave to appeal.  It is difficult to understate the impact of a reversal of the Court of Appeal decision, as a significant number of denials would likely have been reopened and litigated.

Summary judgment was granted to the respondent insurer in this matter, on the basis of the expiry of the limitation period.  The appellant was injured in September of 2007, and received long term disability benefits until November of 2011.

On January 12, 2012, the insurer wrote to the appellant explaining the denial of benefits, and indicated that further medical documentation could be sent in support of the appellant’s claim, within sixty days.  In this letter, the insurer made no mention of the Limitations Act, 2002, or of the time by which an action would need to be brought.  An action against the insurer was not commenced until 2015.

The Court of Appeal upheld the motion judge’s finding that the two year limitation period began to run as of the date of the unequivocal denial of benefits in 2012, and that the limitation period had expired by the time the action was commenced.

At issue on appeal was whether the respondent insurer’s duty of good faith toward the appellant imposed an obligation to inform the appellant of the applicable limitation period to commence a claim for the denial of benefits.  Of note, the appellant conceded on appeal that his claim was discoverable as of January 12, 2012.  The appellant argued, however, that the insurer forfeited the right to rely on a limitation period defence, as a result of failing to advise of the limitation period.

The Court of Appeal indicated that the duty of good faith on insurers does not impose this obligation.  The Court outlined that the duty of good faith requires an insurer to act promptly and fairly in the processing of claims, including in the manner of investigation and the decision to provide or deny benefits.

In coming to its conclusion on the appeal, the Court focused on the fact that, while it is arguably part of the duty of good faith for an insurer to advise an insured of the rights and benefits under the policy, there is no such obligation to advise of the application of legal remedies external to the policy.

The Court of Appeal noted that certain Canadian jurisdictions, such as Alberta and British Columbia, impose an obligation on insurers to advise of the limitation period, and also outline the consequences for failing to do so.  The Court noted that no court to date has imposed this obligation.  In denying the appeal, the Court of Appeal indicated that it is up to the legislation to include such a requirement on insurers.

In Ontario, an amendment to the Insurance Act in regards to life, disability and creditor insurance, which came into force on July 1, 2016, requires insurance policies and certificates to state that actions and proceedings against the insurer are barred unless commenced within the time set out in the Limitations Act, 2002. However, there is still no obligation on a disability insurer to advise of the two year limitation period when denying benefits.

Now that leave to appeal to the Supreme Court has been denied, then the question will be whether the legislature will follow the path set by Alberta and British Columbia.  A lot of eyes will now turn to Queen’s Park to see if there is an appetite to broaden the duty of care on insurers in this province.

What's Happening at Rogers Partners

  • In October 2017, Don Rogers and Rebecca Moore were successful in a leave to appeal application at the Supreme Court of Canada. The case, Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc., arose out of a fire at a commercial building.  The tenant sued the landlord for losses totaling $15 million.  Don and Rebecca were also previously successful in having a judgment against the landlord overturned at the Court of Appeal.
  • In October 2017, Brian Sunohara was successful in a summary judgment motion in Zeppa v. Woodbridge Heating & Air Conditioning Ltd. The court dismissed the plaintiffs’ action on the basis of missing the limitation period.  The action arose out of the alleged improper installation and servicing of an HVAC system.
  • In November 2017, Andrew Yolles and Meryl Rodrigues were successful in the trial decision of Hinds v. Metrolinx. Following a nine day jury trial, the court confirmed that the plaintiff’s recovery was zero, after applying the deductible and deducting collateral benefits.
  • Jonathan Mahoney joined the firm as an associate in November 2017. Jonathan previously practiced at a full service law firm in St. John’s, Newfoundland.
  • Stephen Ross was an invited speaker at the OTLA fall conference in November 2017. Stephen spoke on the interaction between tort and accident benefits in automobile claims.  Stephen, along with Meryl Rodrigues, recently wrote a paper on this topic which was quoted and relied on by the Court of Appeal in a leading case.
  • Anita Varjacic was recently a guest speaker at two events on healthcare law. In October 2017, Anita spoke on the topic of Social Media in Healthcare.  She was assisted by Gemma Healy-Murphy.  In November 2017, Anita spoke on the topic of the defence of midwifery claims.
  • In January 2018, Stephen Ross will be a speaker at the annual Tricks of the Trade conference by The Advocates’ Society. Stephen will be speaking on trends and developments at the Licence Appeal Tribunal.  He is assisted by Alon Barda.
  • Stephen Ross continues his work as a member of The Advocates’ Society Task Forces dealing with changes to contingency fee arrangements, jury selection in motor vehicle accident cases, and the constitutional challenge to the Licence Appeal Tribunal. Andrew Yolles, Meryl Rodrigues, and Alon Barda are helping Stephen on these task forces.
  • Stephen Ross, with the assistance of Gemma Healy-Murphy, is a member of the Toronto Lawyers Association Task Force dealing with summary judgment motions.
  • In November 2017, Alon Barda was heavily quoted in a Law Times article regarding a constitutional challenge to the Minor Injury Guideline. Alon is frequently relied on for his expertise in statutory accident benefits claims.
  • As part of an annual tradition, the lawyers and staff of Rogers Partners are donating toys to the Salvation Army Toy Mountain Campaign.

From the Desk of Kevin Adams

Lately, there has been an increasing amount of attention in the media surrounding the business of personal injury law. Indeed, there has been harsh criticism of the questionable practices and tactics employed by certain plaintiff personal injury firms and lawyers, particularly regarding some distasteful marketing efforts and the seemingly inequitable retainer agreements, which generate exorbitant fees payable by injured victims. Issues surrounding the ethics of advertising and the proper terms of retainer agreements continue to be debated by practitioners and by our Law Society.

More recently, an article in the Globe & Mail soundly criticized the tactics of expert medical doctors who are often retained by insurance companies to defend personal injury and accident benefits claims. The article presented a rather extreme opinion, as it scrutinized defence medical experts’ earnings and denounced the practices of certain defence doctors (and by implication insurers), giving examples of prior judicial scrutiny of those doctors’ expert testimony in court.

What the investigative reporter failed to examine is that there are also a number of doctors routinely retained by plaintiffs, who also generate significant incomes in the business of providing expert opinions and whose reports are similarly offensive in their lack of accuracy and objectivity. As a result, the article presented an opinion which seems one-sided and unfair – an example of the very imbalance which the author sought to criticize.

There is no doubt that, at times, expert doctors cross the line and act as advocates for the party who hired them – this is inappropriate and unacceptable. Usually, those doctors’ evidence is misleading and inaccurate, ignoring certain facts in favour of others that benefit whoever is paying their bill.  If doctors, or any expert witnesses, discard honesty to favour the interests of the party who retained them (whether plaintiffs or defendants), then their evidence should not be accepted and criticisms against them are well-founded.

Our system of justice depends on the availability of reliable expert evidence to assist the parties in properly assessing their respective positions and to guide Judges and Juries to a fair adjudication of claims. It is extremely important that experts strictly adhere to their duties of impartiality and objectivity to the Court (as mandated by the Rules of Civil Procedure), whether they are acting for plaintiffs or defendants. As officers of the Court, lawyers should take care to instruct experts so as not to encourage advocacy on behalf of our clients – that’s the lawyer’s job, not the expert’s.