Judgment highlights issues of bias and fairness

A recent Ontario Superior Court of Justice decision that dismissed the defendant’s motion for an additional defence medical assessment on the eve of trial highlights issues of fairness and bias of experts, says Ottawa personal injury lawyer Najma Rashid.

In Daggitt v. Campbell, 2016 ONSC 2742 (CanLII), the judge dismissed the motion for the psychiatric evaluation because the patient had never before been treated by a psychiatrist, and the assessment on the eve of trial would have added significant cost and delay to the proceedings. Justice Helen MacLeod-Beliveau also validated concerns of bias brought forward by the plaintiff’s counsel.

Rashid, partner with Howard Yegendorf & Associates, calls the decision “principled” and says she was pleased to see the judge’s emphasis on fairness. She says she has been in a very similar situation, when on the eve of trial, defendants brought a motion to have her plaintiff, who had a head injury and depression, assessed by a psychiatrist, when she had only ever been seen by a psychologist.

“Under the Courts of Justice Act the parties are only entitled to one expert or one defence medical examination, but if the plaintiff is submitting more than one, then the defendants are entitled to their responding reports,” Rashid . “But in Daggitt, the plaintiff had never been seen by a psychiatrist and the judge rightly said that psychiatry and psychology are two different disciplines. So it wouldn’t be fair to force the plaintiff to undergo a psychiatric defence medical and then on the eve of trial she would then have the burden of providing a responding psychiatric report.”

The experts had already provided evidence about the plaintiff’s psychological symptoms, she adds.

Rashid, who comments generally on the Daggitt case, says she was surprised to read the judge’s comments around potential bias of the proposed defence expert.

“She had already decided that the plaintiff didn’t have to undergo the defence medical examination so I found it interesting that she nonetheless went to an analysis as to whether or not findings of bias involving this psychiatrist in previous cases would have potentially precluded the defence medical examination from proceeding,” she says. “I was pleased to see her undertake that analysis.”

In her decision, MacLeod-Beliveau wrote that “recent changes to the Rules to require experts to undertake to the court to be fair, objective, and non-partisan has done little if anything to curb the use of certain favoured biased ‘hired guns’ by the parties.”

She goes on to propose that the court could use its discretion to determine whether or not the expert is biased in favour of one party, writing, “such an expert so found should not be allowed to have any role in the court process.”

Rashid calls the decision an “enlightening analysis.”

“There is an ongoing discussion around this issue of whether or not experts truly are unbiased and whether or not, depending on who hires them, they are indiscreetly advocating for the side that’s hired them. That is an ongoing discussion and issue in this area of practice.

“I think the judge is providing a principled analysis for us to consider when that issue arises,” she says.