Fridays with Rogers Partners
At our weekly Friday meeting, Michael Kryworuk discussed the Superior Court’s decision in Beazley v. Johnston et al., 2022 ONSC 1739.
History of the Litigation
This interim ruling in a series of summary judgment motions considered whether the self-represented plaintiff, Mr. Cary Beazley, met the threshold requirement for qualification as an expert witness, such that the two “reports” he prepared were admissible.
The claim arises from an action put forward by the plaintiff, Cary Beazley, against 27 different physician defendants (the “Doctors”) who saw and attended to the plaintiff at the Queensway Carleton Hospital (the “Hospital”), which was also named as a defendant, in a period lasting from December 2015 to May 2018.[1]
Mr. Beazley’s primary allegation is that as a result of the Doctors’ conduct there was a delay in his being diagnosed with Lyme disease. He also alleged that the Hospital was vicariously liable for the actions of its employees and medical staff.
The plaintiff alleged that as a result of the delayed Lyme disease diagnosis, he suffered losses. He claimed a past and future loss of income of $200,000, and also claimed for an unspecified quantum of damages under several heads of damages, including pain and suffering.[2]
Both the Doctors and the Hospital defendants brought motions for summary judgment dismissing the claim. Mr. Beazley also brought a motion for partial summary judgement.
In support of their motions, the Doctors relied on opinion evidence from physicians in seven practice areas. Those areas were cardiology, emergency medicine, family medicine, infectious diseases, internal medicine, neurology, and sports medicine. The Hospital relied on the opinion evidence of the seven physicians whose affidavits and reports (as exhibits to their respective affidavits) were included in the Doctors’ records, but did not rely on any additional expert evidence.[3]
Meanwhile, Mr. Beazley relied on the opinion of one retired physician who, before retirement, practised in family medicine and emergency medicine. The plaintiff also intended to rely on two documents he himself prepared which the court colloquially called the “Beazley Reports”.[4]
The content of these two reports was a mix of information, which appeared to be taken from various exhibits referenced in but not appended to the report, statements made by Mr. Beazley himself, and hyperlinks to additional documents from the internet and other sources.
Before the court allowed Mr. Beazley to make his submissions in the summary judgement motions, the court had to hear submissions on the issue of a party acting as their own expert.
The sole issue up for determination was whether Mr. Beazley met the threshold requirement for qualification as an expert witness. The court was particularly concerned whether he was able to and willing to carry out the “duty to the court to give fair, objective and non-partisan opinion evidence” as required by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (“White Burgess”).[5]
Positions of the Parties
Mr. Beazley
Mr. Beazley argued that he was able and willing to fulfil the duty to the court to be fair and objective. He argued that the substantive contents of his two reports were presented in a balanced manner, highlighting materials from reputable sources including the Centre for Disease Control in the United States. He also pointed to the fair manner in which he cross-examined and re-examined the medical experts of the Doctors and Hospital.[6]
Doctors and Hospital
While not identical, the Doctors and the Hospital both generally took the position that by requesting to be qualified to give evidence with respect to the diagnosis and treatment of Lyme disease, Mr. Beazley was asking the court to qualify him to give opinion evidence on the issue of standard care. Despite Mr. Beazley’s acquired knowledge with respect to Lyme Disease, the defendants argued that the plaintiff was not a physician and was therefore not qualified to give evidence.
The Doctors and the Hospital also argued that the fair approach taken by Mr. Beazley in cross-examining and re-examining the Doctors’ experts was nothing more than what was expected of a self-represented litigant.
And finally, the defendants argued that Mr. Beazley’s role as a party to the action, with a direct financial interest in the outcome of the action, and his assumption of the role of an advocate for himself, made it clear that he was unable to provide the court with fair, objective and non-partisan opinion evidence.[7]
Reasoning
Justice Corthorn began her decision by examining the threshold set out by the SCC in White Burgess for the qualification of an individual as an expert witness, and the admission of the proposed opinion evidence. In White Burgess, Justice Cromwell noted that the “threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert’s evidence would be ruled inadmissible for failing to meet it.”[8]
However, Justice Corthorn found that this case was one of the rare instances where the proffered opinion evidence was inadmissible because the proposed expert, Mr. Beazley, was unable or unwilling to give opinion evidence that was fair, objective and non-partisan. The court came to this conclusion for several reasons.[9]
First, Mr. Beazley was a party with a direct financial interest in the outcome of the litigation, which White Burgess cautioned was more of a concern to the litigation than a lesser interest or connection to the litigation.
Second, citing Marshall v. Jackson, 2021 ONSC 2361, the court noted that it was “trite law to say that a party cannot function as his or her own expert, regardless of the professional qualifications of the party, since expert evidence must be ‘fair, objective and non-partisan’”.[10]
Third, the Court noted that even if Mr. Beazley’s role as a party were left aside, the substance of the proposed evidence also supported a finding he was unable or unwilling to give fair, objective and non-partisan opinion evidence.
Justice Corthorn pointed to certain sections in both reports where the plaintiff describes the defendant’s expert testimony as “biased”, “blatant perjury”, or “unfounded bad assumptions” without offering any basis for such descriptions. The lack of objectivity and partisanship was blatantly obvious in this case.[11]
The court also drew upon some obiter commentary from a decision from the Nova Scotia Supreme Court in Ocean v. Economical Mutual Insurance Company, 2010 NSSC 315, that “calling a document an ‘expert’s report’ does not make it an expert’s report”. Justice Corthorn noted that taking the opinions of several others and binding them together does not constitute an expert’s report.[12]
Decision
Justice Corthorn dismissed Mr. Beazley’s request to be qualified as an expert witness to give evidence in the areas of diagnosis and treatment of Lyme Disease. As a result, neither of the Beazley Reports were admissible as evidence in response to the defendant’s two summary judgement motions, or in Beazley’s own motion for partial summary judgement.
Takeaway
In conclusion, the plaintiff’s request to be his own qualified expert witness and give opinion evidence on the topics of the diagnosis and treatment of Lyme Disease was entirely rejected by the Court. Furthermore, neither of the Beazley Reports were admissible as evidence in any of the summary judgement motions yet to be heard by the court.
This decision continues to stand for the proposition that it is improper for parties to the litigation, even in cases of self-represented litigants, to serve as opinion experts in the litigation. Their positions as parties with a direct interest in the outcome of the litigation make them fundamentally incapable of fulfilling an expert’s duty to the court to provide evidence that is fair, non-partisan and objective.
[1] Beazley v. Johnston et al., 2022 ONSC 1739 at para 1
[2] Ibid, at para 3.
[3] Ibid, at para 6.
[4] Ibid, paras 7-10.
[5] Ibid, at para 13.
[6] Ibid, at paras 14-15.
[7] Ibid, at para 16.
[8] White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, at para 49.
[9] Beazley, supra note 1, at para 18.
[10] Marshall v. Jackson, 2021 ONSC 2361 at para 7.
[11] Beazley, supra note 1, at paras 21-25.
[12] Ibid, at para 29.