Fridays with Rogers Partners

March 03, 2023

At our weekly Friday meeting, Katrina Taibi discussed the recent decision of the Ontario Superior Court in Ozdemir v. Economical Mutual Insurance Group, 2023 ONSC 685.

Overview:

A mid-trial hearing on the admissibility of the plaintiff’s medical report, when the doctor would not be presented for cross-examination.

Facts:

The plaintiff, Mr. Ozdemir, was allegedly injured in a car accident in 2009.  He commenced two separate actions, one against the owner and driver of the other car for negligence, and the other against his insurer for failing to provide him accident benefits.  These actions were ordered to be heard together.

Mr. Ozdemir was self-represented at trial and sought to put into evidence a medical report on his injuries, written by Dr. Khaled.  The defendants objected to the plaintiff filing this report, unless Dr. Khaled was called to testify at trial.

Parties’ Positions:

Mr. Ozdemir made the following arguments as to why the medical report should be admitted:

  1. Trial fairness;
  2. Inability to organize himself to present Dr. Khaled for cross-examination due to psychological distress and pain from the accident; and
  3. The report was critical to the success of his case.

It should be noted that Mr. Ozdemir did not request an adjournment of the trial.

In response, the defendants made the following arguments as to why the medical report is inadmissible hearsay evidence:

  1. Lack of notice of intent, as required by section 52 of the Evidence Act;
  2. Dr. Khaled not presented for cross-examination; and
  3. Medical report lacked particular information, as required by Rule 53.03 of the Rules of Civil Procedure.

The Law:

“Hearsay evidence is presumptively inadmissible because – in the absence of the opportunity to cross-examine the declarant at the time the statement is made – it is often difficult for the trier of fact to assess its truth.”[1]

Section 52(5) of the Evidence Act is an exception to this rule:

“If a practitioner is required to give evidence in person in an action and the court is of the opinion that the evidence could have been produced as effectively by way of a report, the court may order the party that required the attendance of the practitioner to pay as costs therefore such sum as the court considers appropriate.”[2]

However, as explained by the Court of Appeal in Girao v. Cunningham, when requested, a trial judge must provide the opposing party with an opportunity to cross-examine a medical expert.[3] 

Disposition:

Although the judge was sympathetic to Mr. Ozdemir’s arguments, the court was bound by precedents to refuse to admit the medical report unless Dr. Khaled was presented for cross-examination.

Best Practices for Self-Represented Litigants:

In obiter, Justice Agarwal set out a brief summary of the law and evidentiary requirements for medical reports directly targeted at self-represented litigants.  The easy-to-read summary discusses the obligations under section 52 of the Evidence Act and under Rule 53.03 of the Rules of Civil Procedure.  It also provides references to seminal cases on difficult concepts, such as when Rule 53.03 does not apply to participant experts and non-party experts.

Further, Justice Agarwal identifies resources to assist self-represented litigants, including:

  1. The Canadian Judicial Counsel’s informational handbook;
  2. Pro Bono Law Ontario; and
  3. The National Self-Represented Litigants Project.

[1] Ozdemir v. Economical Mutual Insurance Group, 2023 ONSC 685 at para 8.

[2] Evidence Act, R.S.O. 1990, Chapter E. 23, s.52(5).

[3] Girao v. Cunningham, 2020 ONCA 260 at para 45.