Canada (Minister of Human Resources Development) v. Cantwell, 2006 FCA 75

Date: 20060214

Docket: A-550-04

Citation: 2006 FCA 75

CORAM:         DÉCARY J.A.

LÉTOURNEAU J.A.

SEXTON J.A.

BETWEEN:

MINISTER OF HUMAN RESOURCES DEVELOPMENT

Applicant

and

MICHAEL CANTWELL

Respondent

Heard at Halifax, Nova Scotia, on February 14, 2006.

Judgment delivered from the Bench at Halifax, Nova Scotia, on February 14, 2006.

REASONS FOR JUDGMENT OF THE COURT BY:        LÉTOURNEAU J.A.

Date: 20060214

Docket: A-550-04

Citation: 2006 FCA 75

CORAM:         DÉCARY J.A.

LÉTOURNEAU J.A.

SEXTON J.A.

BETWEEN:

MINISTER OF HUMAN RESOURCES DEVELOPMENT

Applicant

and

MICHAEL CANTWELL

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Halifax, Nova Scotia, on February 14, 2006)

LÉTOURNEAU J.A.

[1]    We are of the view that this application for judicial review should be granted.

[2]    The Pension Appeals Board (Board), pursuant to an objection by the Respondent, precluded Dr. O'Brien, an expert witness for the applicant, from expressing opinions on issues raised by Dr. Watt in his testimony on behalf of the respondent.

[3]    The Board refused to allow the evidence on the basis that Dr. O'Brien's summary of his testimony, prepared for the Board and served on the respondent five days before the hearing, made no reference to Dr. Watt's reports. The Board was of the view that "an expert witness should prepare a report, in advance, serve it to the other side, and restrict his or her evidence to that report". "To do otherwise", the Board writes "is prejudicial to counsel and their ability to conduct an effective cross-examination": see the Board's decision at paragraph 31 and 32.

[4]    We are told that this is not the usual practice before the Board as experts are frequently if not routinely allowed to give testimonial evidence that goes beyond their reports.

[5]    In any event, in the present instance we are dealing with a situation where Dr. Watt was allowed by the Board to express opinions and raise new issues that were not in his medical reports. According to the uncontradicted evidence of Dr. O'Brien and Rose-Gabrielle Birba, counsel at the hearing before the Board, Dr. Watt expressed the opinion that the respondent was incapable of any employment due to his pain and that that incapacity existed on or before December 31, 1999, while Dr. Watt had not seen or assessed the respondent prior to June 2002. The reports of Dr. Watt contained no such assertion as to the time of the respondent's incapacity. This was a crucial issue in the proceedings that took the applicant by surprise.

[6]    In addition, Dr. Watt's testimony contradicted some of his original opinions expressed in his reports to the detriment of the applicant.

[7]    Counsel for the applicant submits that his client was prejudiced by the Board's refusal to allow Dr. O'Brien to respond to the new issues raised by Dr. Watt in his testimony as well as by the Board's refusal to allow the applicant to answer the contradictions between Dr. Watt's testimony and his reports. We agree and, in our view, the Board's refusal led to a breach of procedural fairness which compromises the fairness of the hearing.

[8]    The applicant does not seek costs in these proceedings and, therefore, none will be allowed.

[9]    For these reasons, the application for judicial review will be allowed without costs, the decision of the Board set aside and the matter referred back to a panel differently constituted for a new hearing.

"Gilles Létourneau"