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In an article published this April, Canadian Lawyer Magazine’s editor-in-chief Gail J. Cohen harshly criticized Ontario’s auto insurance industry, saying that it “increasingly doesn’t work for individuals seeking accident benefits, and it is tipped in favour of insurance companies looking to reduce payouts whenever they can.”
Central to Cohen’s argument was the behaviour of “medico-legal expert witnesses” who have helped to create “an uneven playing field between insurers and their clients.”
She is far from alone in voicing her concerns: the Ontario Trial Lawyers Association (OTLA) has called for an inquiry into the expert witness system; a review of alternative dispute resolution systems by Justice Douglas Cunningham found that “stakeholders he spoke to brought up the issue of skewed experts”; and Cohen reports that April’s personal injury legal report showed “numerous” instances of medical experts acting with insufficient impartiality.
“There are claims that a system of medico-legal experts distorts evidence, including court reports, to satisfy insurance companies,” Cohen writes. She also states that assessment clinics have allegedly altered doctors’ reports in insurers’ favour.
Insurance companies bear much of the blame for this issue, as experts who side with claimants are unlikely to be retained by insurers in the future. However, the system by which benefit disputes are resolved may also be partially at fault.
Solutions to the auto insurance system’s many problems are hard to come by, but one proposed improvement is the practice of “hot tubbing.” Also known as “concurrent evidence,” hot tubbing brings expert witnesses together to “testify in court … on a panel, rather than one-by-one in the witness box,” according to a Globe and Mail article from 2011.
The practice, which has been employed in Australia for years, is currently used in some Canadian legal settings where judges and juries don’t have the necessary expertise to reliably weigh technical evidence. It has mixed support from different members of the legal profession: judges like it; lawyers seem divided.
There are many arguments in favour of the practice, especially in situations where expert testimony could be biased. For one, panel members would be agreed upon by both sides of the dispute, which should ostensibly promote impartiality.
A panel scenario also allows experts to contradict one another and argue points of contention. This, in theory, would ensure that expert witnesses don’t act as advocates for any side of the dispute.
“The courts are really trying to emphasize the importance of experts not being just paid talking heads but people who are assisting the court arriving at the truth of the case,” WeirFoulds litigator John O’Sullivan told the Globe.
The Globe article also cited a paper composed by Supreme Court of Canada Justice Ian Binnie, who wrote that “experts testifying in the presence of one another are likely to be more measured and complete in their pronouncements, knowing that exaggeration or errors will be pounced upon instantly by a learned colleague, as opposed to being argued about days later, perhaps by unlearned opposing counsel.”
While hot tubbing could in theory improve the impartiality of auto insurance disputes, Ontario’s motor vehicle accident victims are likely to see the auto insurance system worsen before it improves. Upcoming changes, which will be implemented June 1, will significantly reduce the benefits available to accident victims.
If you or a member of your family has been injured in a motor vehicle accident, contact Neinstein Personal Injury Lawyers today for a free, no-obligation consultation. Accessing the accident benefits you need to aid your recovery can be an arduous task; Neinstein Personal Injury Lawyers will represent you in court and fight for your rights.
Greg Neinstein
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