Court Orders Trial to Proceed Virtually Over Objections From Counsel
In light of the Omicron variant, in-person civil jury trials have been suspended in Ontario. This has impacted many cases, which were slated for trial in January 2022. One of these cases was Fraser v Persaud. In Fraser v. Persaud, 2021 ONSC 8429, the motor vehicle accident case was at risk of not being heard in 2022 (7 years post-accident). Therefore, plaintiff counsel requested that the matter proceed virtually. Defence counsel objected to this request. They wanted to have the trial in-person. But, this could push the trial from January 2022 to January 2024.
Justice Richetti ordered that the trial proceed virtually. In making his decision, Justice Richette noted that Rule 1.08 of the Rules of Civil Procedure allows for a trial by video conference. Additionally, Chief Justice Morawetz strongly encourages the use of virtual trials, where possible.
There were also many other factors in favour of a virtual trial. These factors included:
a. Plaintiff counsel’s desire to avoid an in-person trial, given his age (77 years old), and the contagiousness of COVID.
b. The trial had already been adjourned before. The future of in-person trials remains uncertain. There are large backlogs and staff shortages.
c. The case would have to be delayed at least two more years for an in-person trial in Brampton.
d. The events occurred more than 6 years ago. There is a risk for memories fading. Credibility is harder to assess with the passage of time.
e. Defence counsel’s argument that credibility is easier to assess in-person, without providing any specific details as to how this applies to this case, was not persuasive. The court has heard many serious cases virtually in the pandemic.
f. Most of the witnesses are doctors or experts who have provided written reports. Credibility becomes less of an issue where expert reports are filed.
g. Justice Richetti found no factors in favour for waiting two years for an in-person trial.
This case shows the need for counsel to proceed virtually where possible to shorten pandemic related delays in the courts.
RE: ” Most of the witnesses are doctors or experts who have provided written reports. Credibility becomes less of an issue where expert reports are filed.”
The proliferation of “hired gun” medico-legal experts has been sporadically discussed (eg. Justice Osborne’s Report) and ineffectively addresses (eg. 2010 Rules of Civil Procedure – Rule 53) for decades. Every mainstream newspaper in Toronto has from time to time published columns about “hired gun” docs who sell bogus accusations of malingering to Ontario auto insurers (for a handsome living). Former Toronto Sun legal columnist, Alan Shanoff, wrote a column almost every week prior to his retirement that outed the shoddy medico-legal insurer assessments (IMEs) being used to deny/delay the claims of seriously injured car crash victims.
In a decision shortly after the adoption of Rule 53 Master Short wrote a decision is which he lamented its lack of “teeth” (enforcement capability) asking when these “hired guns” will ever change their “partisan stripes.”
And yet we continue to hear judges, lawyers and legal columnists propagate the notion that we can safely assume “credibility” of medico-legal testimony/IMEs, so much so that judges refuse to allow plaintiff lawyers to adduce prior adverse judicial comments going to bias and/or competency to challenge these “experts”. “Hired gun” experts continue to plague Ontario’s civil justice system in large part because judges fail miserably in their gate-keeping of experts duties and are the authors of this misfortune. (This despite Justice Goudge’s finding that the “first mistake” in the Dr. Charles Smith debacle was the failure of judges/lawyers to heed Justice Dunn’s early warning about Dr. Smith in the form of adverse judicial commentary regarding bias/lack of competency.)
It is ironic that it is the insurer defence lawyers arguing that credibility issues require in-person trials given that medico-legal “hired guns” who so often serve as insurer defence experts are so lacking in impartiality and sometimes even in competency. It is sad that judges continue to overlook this fact.