Ontario – court’s resistance to re-using findings from earlier adjudications applies in arbitral proceedings – #096

In Nasir v. Kochmanski, 2018 ONSC 3052, Mr. Justice Peter A. Daley dismissed Plaintiffs’ application for a trial adjournment which they based on, among other grounds, their intention to obtain and use at trial certain negative commentary on Defendant’s expert witness generated in other, earlier court and tribunal proceedings. Daley J.’s reasoning and the authorities referred to apply to the declared use in commercial arbitration of other materials produced for or by tribunal hearings, including arbitrations created by legislation. Prior to seeking to use those materials, arbitral parties must (a) ensure that no legislated prohibition exists regarding subsequent use in a new venue and (b) anticipate that tribunals will be vigilant to exclude admissible materials which are either unhelpful or lack proof of the fuller context in which they issued.
The litigation involved an April 16, 2006motor vehicle accident. The case had been scheduled to proceed to trial May 7, 2018 but Plaintiff filed a motion for adjournment. The motion was eventually rescheduled to allow the parties to prepare a more fulsome record for the court, including affidavit evidence, facta and case authorities. Daley J. heard the motion May 11, 2018 and dismissed it with reasons to follow.

Plaintiffs’ motion contained five (5) primary grounds and identified three (3) “essential purposes” in seeking the adjournment. Daley J. listed them all but observed that Plaintiffs were “most reluctant to acknowledge that the only basis upon which the adjournment was sought was alleged serious misconduct on the part of the defendant’s defence medical expert” identified in the application.

Defendant opposed the adjournment request. It argued that there had been no evidence of any material change in circumstances to justify the application and that leave had not been sought to make the application. In the alternative, Defendant argued that “the supporting affidavit filed on behalf of the plaintiffs should be struck out on the basis that it is improper hearsay and argument and contains the irrelevant information, inflammatory rhetoric and offensive allegations with respect to the conduct of the defending lawyers.

Plaintiffs’ reproaches of Defendant’s expert witness included allegations that negative judicial commentary about Defendant’s expert witness existed in prior tribunal decisions and civil cases. Plaintiffs argued that they should be granted an adjournment in order to allow them an opportunity to further investigate the available evidence regarding those earlier proceedings in which Defendant’s expert provided expert medical evidence.

Plaintiffs announced that they intended to rely on and introduce evidence at trial on decisions from an administrative tribunal and prior judicial commentary in regard to that expert’s qualifications as a medical expert witness and as to his credibility.

Daley J. divided the anticipated prior court and tribunal materials into two (2) groups.

First, he looked at materials covered by section 36(3) of the Regulated Health Professions Act, 1991, SO 1991, c 18. The latter was the legislative scheme which gave rise to the tribunal hearings from which issued materials sought by Plaintiffs.  Entitled “Evidence in civil proceedings”, section 36(3) expressly prohibited subsequent use of proceeding materials in other venues.

36(3) No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.

Ontario’s Court of Appeal wrote directly about the presumption created by section 36(3) in F. (M.) v. Dr. Sutherland, 2000 CanLII 5761, explaining the mischief addressed and benefits obtained by protecting materials generated in a proceeding occasioned for or by the Regulated Health Professions Act.

[29] I find no relevant indicators of legislative meaning to displace the presumption in favour of the ordinary meaning of s.36(3). The purpose of s. 36(3) is to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings – a health professional, a patient, a complainant, a witness or a College employee – fearing that a document prepared for College proceedings can be used in a civil action. This purpose would be defeated by reading a fraud or bad faith exception into s. 36(3). The mere allegation of fraud or bad faith, however unfounded, could make the provision inapplicable.

On the application of section 36(3) to specific materials sought by Plaintiffs, Daley J. concluded that any prior tribunal decisions or court rulings with respect to Defendant’s expert covered by section 36(3) were inadmissible at the upcoming civil trial. Daley J. considered that Plaintiffs’ request for an adjournment based on the need for further investigation of past tribunal rulings did not form a reasonable basis upon which to adjourn this trial.

Second, Daley J. next considered a separate category of materials, namely prior judicial rulings and decisions regarding Defendant’s expert’s qualifications and credibility not addressed by specific legislation such as section 36(3). He referred to the Court of Appeal’s recent decision in Bruff-Murphy v. Gunawardena, 2017 ONCA 502.  Instead of focusing on whether the materials could be used at all, that decision addressed whether doing so would be helpful. In that case, the Court upheld a trial judge’s decision to prohibit cross-examination of a Defendant’s expert witness regarding prior civil and arbitral findings made against him.

[31] I do not accept this argument. In my view, the prior comments made about Dr. Bail do not amount to a finding of discreditable conduct. Rather, they are the opinions of a judge and two arbitrators regarding the reliability of his testimony in particular cases. This is analogous to the situation in Ghorvei, [R. v. Ghorvei (1999), 1999 CanLII 19941 (ON CA), 138 C.C.C. (3d) 340 (Ont. C.A.), ] where a witness’s credibility had been attacked in previous proceedings. Charron J.A. (as she then was) held at para. 31 that those credibility findings from the previous proceedings were not proper material for cross-examination:

In my view, it is not proper to cross-examine a witness on the fact that his or her testimony has been rejected or disbelieved in a prior case. That fact, in and of itself, does not constitute discreditable conduct. I do not think it would be useful to allow cross-examination of a witness on what is, in essence, no more than an opinion on the credibility of unrelated testimony given by this witness in the context of another case. The triers of fact who would witness this cross-examination would not be able to assess the value of that opinion and the effect, if any, on the witness’s credibility without also being provided with the factual foundation for the opinion.

See also R. v. Boyne, 2012 SKCA 124 (CanLII), 405 Sask.R. 163, at paras. 48-51, leave to appeal refused, [2013] S.C.C.A. No. 54. 

[32] In the present case, the comments of the judge and arbitrators about Mr. Bail’s testimony in the previous cases would have been of no assistance to the jury without an understanding of their factual foundation. That necessary context would only have served to divert the jury from the task at hand and convert the trial into an inquiry regarding the reliability of Dr. Bail’s testimony in the three other proceedings. Thus, in my view, the trial judge did not err in prohibiting this line of cross-examination.

Independent of any legislated prohibition on re-use of materials generated in another venue, these authorities held that the loss of the context would merely distract the subsequent fact finder and be of no assistance. Though not reproduced in the reasons, the section in R. v. Boyne offer additional insights into the policy for not using one venue’s work to assess a witness’ evidence in another venue.

[48] Mr. Boyne argued before the trial judge and in the summary conviction appeal court that there was the potential that Sgt. Gherasim lied under oath or that the adjudicator in his conduct hearing did not prefer his evidence and that this information is disclosable and if it was available it might damage the credibility of Sgt. Gherasim. However, the authorities do not support this proposition.

[49] In R. v. Ghorvei (1999), 1999 CanLII 19941 (ON CA), 138 C.C.C. (3d) 340 (Ont. C.A.), the court considered whether a witness can be cross-examined on a prior judicial finding that he has lied under oath. In that case, defence counsel sought to introduce another judicial decision in which the trial judge called the officer in question a “compulsive liar” and stated that his testimony was “false”. On the issue of whether cross-examination on this evidence would be admissible, Charron J.A. stated:

[31] In my view, it is not proper to cross-examine a witness on the fact that his or her testimony has been rejected or disbelieved in a prior case. That fact, in and of itself, does not constitute discreditable conduct. I do not think it would be useful to allow cross-examination of a witness on what is, in essence, no more than an opinion on the credibility of unrelated testimony given by this witness in the context of another case. The triers of fact who would witness this cross-examination would not be able to assess the value of that opinion and the effect, if any, on the witness’s credibility without also being provided with the factual foundation for the opinion. This case, in fact, provides a good example of the difficulties that would arise if such cross-examination were permitted because, in my view, once the finding is examined in the context of the whole record in Pappageorge, it becomes apparent that it is essentially unfounded and hence can provide no assistance in determining Constable Nielsen’s credibility.

[50] R. v. Karaibrahimovic, 2002 ABCA 102 (CanLII), [2002] 7 W.W.R. 452, a more recent decision out of the Alberta Court of Appeal, has reiterated the same sentiment:

[7] Generally speaking, evidence is admissible if it is relevant to a fact in issue, and not subject to a rule of exclusion: J. Sopinka, S.N. Lederman, A.W. Bryant, The Law of Evidence in Canada, 2nd Ed. (Markham: Butterworths, 1999) at 23. Cross-examination of a witness about whether the witness’s testimony in previous proceedings was rejected or disbelieved is irrelevant and ought not to be permitted: See R. v. Ghorvei (1999), 1999 CanLII 19941 (ON CA), 138 C.C.C. (3d) 340 (Ont. C.A.); R. v. Barnes (1999) 1999 CanLII 3782 (ON CA), 138 C.C.C. (3d) 500 (Ont. C.A.) ; and R. v. Schmidt (2001), 2001 BCCA 3 (CanLII), 151 C.C.C. (3d) 74 (B.C. C.A.). 

[8] Sound policy reasons exist for not using a present trial as an opportunity to assess, or reassess, a witness’s evidence in another, unrelated trial. The most obvious problem is that what happened in the first trial, including the reasoning of the trier of fact in that trial, would not be known to the trier of fact in the second. Accordingly, in both Ghorvei and Barnes, the Court found that cross-examining a police witness on whether or not his or her evidence had been accepted in prior proceedings was irrelevant.

[51] These decisions establish that whether or not the testimony of a witness in a prior proceeding was accepted, is an impermissible avenue to pursue in cross-examination. Therefore, even if Sgt. Gherasim’s evidence was expressly rejected at a disciplinary hearing, that evidence would be inadmissible. It was, therefore, not open to defence counsel for Mr. Boyne to cross-examine Sgt. Gherasim, in any event, as to whether his evidence was believed or disbelieved or whether the tribunal made findings of fact against him if the verdict were set aside and the case reopened. In this respect, the summary conviction appeal court judge erred when he found this aspect of possible further disclosure to be a relevant factor impacting Sgt. Gherasim’s credibility and that Mr. Boyne had been denied the opportunity to pursue this.

Daley J. concluded that, on that ground, the adjournment application failed. The prior judicial rulings or other decisions relating to Defendant’s expert’s qualifications as a expert witness or regarding his credibility are wholly inadmissible in the upcoming trial. This conclusion was made independent of the prohibition stipulated in the legislation which addressed materials generated pursuant to hearings conducted under that legislation.