w w w . C A N A D I A N L a w y e r m a g . c o m A P R I L 2 0 1 6 41
For example, rules now force experts in the court system to
acknowledge their impartiality. Experts who fail to adhere to
those principles have been chastised by the court to the point
where they are not relied on regularly by counsel.
Rule 53 of Ontario's Rules of Civil Procedure clarifies the
expert's role to highlight that it's up to the trier of facts — a judge
or adjudicator — to decide whether the information an expert
witness presents is biased or neutral.
Prior to the no-fault regime in motor vehicle accident cases,
there might be one or possibly two defence medicals through
the course of litigation. Now, Merritt says she has seen an explo-
sion in the number requested. "You can sometimes get a request
for three, four, or five in a two-week period. If you refuse to go,
you are deemed non-compliant and cut off. Unfortunately, we're
seeing a number of cases before the courts where the experts
have failed to act as neutral independent impartial witnesses as
experts are supposed to do."
A suggestion made by Cunnigham was that when experts
testify and are found to be non-neutral they don't get paid.
The OTLA is also looking to other provinces not just for how
they are handling medical assessments. However, it's difficult to
compare because the systems are so different. "You have every-
thing from public to private auto and some that are very heavily
weighted on the no-fault and accident benefit side and some that
are pure tort — it's really all over the map, but I can say our auto
insurance system in Ontario is arguably the poorest-functioning
system of them all," says Bent.
What do your clients need?
The means to move on.
Guaranteed
™
.
Baxter Structures customizes personal injury
settlements into tax-free annuities that can
help your clients be secure for life.
Need more information?
Contact us at 1 800 387 1686
or baxterstructures.com
Kyla A. Baxter, CSSC
PRESIDENT, BAXTER STRUCTURES
Untitled-1 1 13-09-16 2:53 PM
Untitled-3 1 2016-03-14 4:54 PM
It's all in
the details.
Successful advocacy requires vision, creativity,
and attention to detail – something we have
been doing for more than 30 years.
(416) 599-1700
150 King St. W., Suite 1901
Toronto, ON M5H 1J9
bogoroch.com
personal injury and medical malpractice litigation
Untitled-11 1 2016-03-16 3:20 PM
