The matter of Najem-Youssef v. Co-operators General Insurance Company, 2023 CanLII 52358 addresses the question of: what is the appropriate hearing attendance fee for an applicant to pay to an IE assessor when it is the applicant, not the insurance company, who summoned the IE assessor to testify before the LAT? The answer is: $350 per day.

Rule 8.3 of the Common Rules of Practice and Procedure establishes that:

  1. the payment of the attendance money is the responsibility of the party that requested the summons; and
  2. the party summoning that witness is required to pay the witness all the same fees and allowances that the witness would be paid if attending before the Superior Court of Justice. Specifically, fees are to be calculated in accordance with Tariff A of the Rules of Civil Procedure.

Section 28 of Tariff A of the Rules of Civil Procedure establishes that an expert who gives opinion evidence at the hearing is entitled to a reasonable amount not exceeding $350 per day. Section 21(1) of Tariff A establishes that a lay witness is only entitled to $50 per day.

In Najem-Youssef, the Respondent, in accordance with all deadlines, advised the Applicant and the LAT that, at the videoconference hearing, it would be relying upon the reports of three IE assessors, without calling any of them to testify. In response, the Applicant summoned all three IE assessors. Each of the IE assessors attended the hearing and underwent cross-examination by the Applicant’s counsel and a reply examination by the Respondent’s counsel, with neither party conducting an examination-in-chief.

However, the Applicant later advised the Respondent that she would only be paying each of these witnesses $50 for their respective hearing attendances. She took the position that they were not “experts” and, as such, were only entitled to the layperson attendance fee of $50, not the expert attendance fee of $350. The Applicant argued that these witnesses were not “experts”, in part, because:

  1. They were the “respondent’s experts” and the respondent did not affirmatively qualify them as experts at the hearing; and
  2. The Acknowledgment of Expert Duty Forms enclosed within each of the witnesses’ IE reports did not meet the criteria established by Rule 10.2(b) of the Common Rules.

The Respondent thus brought a motion to compel the Applicant to pay $350 to each of the witnesses for their respective hearing attendances. It argued that, if the Applicant were allowed to only pay each of these witnesses $50, this would violate Rule 8.3 by putting the Respondent in the position of having to pay the attendance fees for witnesses that the Applicant had called.

The Respondent also argued that the witnesses were all expert witnesses as they each gave opinion evidence based on their expertise. It also noted that the Applicant referred to the witnesses as “your experts” in email correspondence between the parties.

Adjudicator Adamidis found all three of the IE Assessors to be exert witnesses and ordered the Applicant to pay $350 for their respective hearing attendances. He reasoned that Rule 10.1 of the Common Rules establishes that, the only elements required for one to be an “expert witness” is that they be qualified to provide information and opinions based on special knowledge in respect of the matters on which they testify, stating “There are no other elements in this definition. He noted that the Applicant did not argue that any of the IE assessors failed to meet the elements found in this definition, but instead, she only raised procedural deficiencies (such as the fact that the witnesses were not affirmatively qualified before being cross-examined). He found that none of these procedural deficiencies change the context or purpose of the witnesses testimony. Quite simply: the witnesses provided information and opinions based on their special knowledge and, as such, are “expert witnesses”.

Pursuant to s. 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, a party to a LAT hearing is entitled to rely upon an expert report without having to call the expert to testify. Pursuant to Rule 8.3 of the Common Rules, payment of the hearing attendance money for that expert is the responsibility of the party that requested the summons.

As such, had Adjudicator Adamidis found in the Applicant’s favour in this motion, this would have rendered both s. 15(1) and Rule 8.3 completely hollow and would have enabled for future abuses of process by claimants and insurance companies, alike. For instance, a claimant might undergo a s. 25 assessment with an orthopaedic surgeon, but, at the hearing, be content to simply rely upon that expert’s report, without calling him or her to actually testify (perhaps because the claimant simply could not afford the expert’s hearing appearance fee). If the Applicant had won the Najem-Youssef motion, then, in this hypothetical example, the insurance company could abuse the LAT’s processes by summoning the orthopaedic surgeon and then leave the claimant ‘holding the bag’ by leaving the bulk of the surgeon’s hearing attendance fee for the claimant to pay. This would be an obvious and gross violation of the consumer protection mandate of the SABS.

In Najem-Youssef, the Applicant never challenged either the qualifications of the IE assessors or the form of the Expert Duty Forms because they were not tendered as experts. However, pursuant to Rule 10.4, “a party intending to challenge an expert’s qualifications, report or witness statement shall give notice, with reasons, for the challenge to the other parties as soon as possible and no later than 10 days before the hearing”. The LAT has repeatedly refused to uphold such challenges where the challenging party failed to comply with the 10-day deadline (see, for example; Islam v Toronto Transit Commission, 2022 CanLII 45247 (ON LAT), paras 11-12; and A.M. v Aviva Insurance Company of Canada, 2020 CanLII 101744 (ON LAT – RECON), paras 12-15). In fact, when it comes to Expert Duty Forms, in Mahdi v. Pafco Insurance Company, 2022 CanLII 120034 (ON LAT), para 21, the LAT held that “I would have expected the applicant to raise the issue of the missing Experts’ Duty Forms as soon as his counsel received the IEs”. When one applies this ratio to the Najem-Youssef motion, it dismisses the Applicant’s argument that she did not raise her challenges earlier because she was unaware that the Respondent was relying on the IE assessors as “experts”.

As such, the prior jurisprudence makes it clear that, Ms. Najem-Youssef’s failure to challenge the qualifications of the IE assessors or their Expert Duty Forms at least 10 days prior to the hearing was, in and of itself, fatal to her position in the motion.

While most experts on both sides will charge the party retaining them far more than $350 a day to testify at a hearing, it is gratifying to know that the expert fee set out in the LAT rules is payable by the party compelling the witness to testify.

Alexander Dos Reis ([email protected]) was the lawyer on this file and is the author of this blog. If you have a question about this decision, or a similar file, please contact Alexander.