A recent decision of the British Columbia Civil Resolution Tribunal (BCCRT) will cause some turbulence in consumer protection law, and may impact the use and regulation of artificial intelligence (AI) chatbots in Canada. The case is also amusing and noteworthy as the defendant, Air Canada, employed a ‘pie-in-the-sky’ and ultimately futile defence tactic when they tried to shift blame onto their chatbot, as if it was an independent entity. Written by Joseph Ur, JSU LAW Pictured above: Air Canada's AI, responsible for its own decisions Background This dispute arose when an Air Canada customer sought a partial refund from the airline for the difference between a bereavement fare and a standard fare. The customer believed he was entitled to the bereavement fare based on information provided by Air Canada's own AI chatbot. In its interaction with the customer, Air Canada’s chatbot said “If you need to travel immediately or have already travelled and would like to submit your ticket for a reduced bereavement rate, kindly do so within 90 days of the date your ticket was issued by completing our Ticket Refund Application form.” However, Air Canada’s actual policy is that bereavement fares cannot be claimed retroactively. The customer applied to the BCCRT to seek the difference between the full fare and the bereavement fare when Air Canada refused to cover the difference. Remarkably, Air Canada sought to distinguish itself from the bot, and blame it for the mistake instead. The airline's audacious defence claimed it wasn't liable for the chatbot’s digital misdirection, just like it wouldn’t be liable for information provided by one of its representatives that is distinct from the company. ‘It wasn’t us – it was the robots! Take it up with them’. In effect, Air Canada suggests the chatbot is a separate legal entity that is responsible for its own actions. This is a remarkable submission. The BCCRT decried Air Canada's argument, saying: 27.   Air Canada argues it cannot be held liable for information provided by one of its agents, servants, or representatives – including a chatbot. It does not explain why it believes that is the case. In effect, Air Canada suggests the chatbot is a separate legal entity that is responsible for its own actions. This is a remarkable submission. While a chatbot has an interactive component, it is still just a part of Air Canada’s website. It should be obvious to Air Canada that it is responsible for all the information on its website. It makes no difference whether the information comes from a static page or a chatbot. Air Canada failed to stick the landing on its novel argument, and the BCCRT found in favour of the consumer. While the consumer didn’t allege it directly, the BCCRT found that Air Canada was liable for negligent misrepresentation. Air Canada failed to take reasonable care to ensure its chatbot provided accurate information. Impact and Analysis While this decision isn’t binding on higher courts, it’s sure to make other businesses and regulators take notice. The decision shows that, in the right circumstances, businesses can be found liable for their automated systems in customer interactions, and cannot avoid or pass off liability to an AI system as if it was its own legal entity. Businesses are responsible for providing accurate information in interactions with customers, regardless of the channel. Lots of companies have rolled out or are currently rolling out more advanced AI Chatbots for their websites in order to automate more rote interactions with customers. This decision should come as a warning to all of those companies – AI chatbots require rigorous oversight and careful programming and testing to ensure information they provide is reliable. It will be interesting to see this area of law develop, and whether companies in the future are able to avoid liability through their fine print, terms of service, or disclaimers. For example, businesses may seek to hide behind warnings about the potential for ‘hallucinations’ or incorrect information, which could be communicated to customers on initiation of their conversation with AI chatbots. This case could also impact legislation and regulation of AI chatbots, particularly given the direct involvement in the decision of a national corporation the size and notoriety of Air Canada. Integration of AI into day-to-day businesses and consumer interactions is only going to become more prevalent. Canadian legislation needs to keep pace to ensure companies using these systems are acting responsibly, and cannot seek to blame their own mistakes or actions on an ‘AI-error’ – particularly when they own and program the AI.

A case comment on Bendah v. Dr. Farine and Dr. Fleming, 2024 ONSC 624, and the Court’s permissive approach that arguably moves the goal posts on discoverability. Written by Joseph Ur, JSU LAW Pictured above: the discoverability goal posts being moved. A recent Ontario Superior Court decision provided some interesting commentary on the collision of limitations periods with complex medical negligence cases. The result is a particularly permissive approach to discoverability in favour of plaintiffs. According to the Court, if a case is complicated enough, and if the plaintiff has been diligent in their efforts, the limitation period against a particular defendant may not begin to run until the injured party obtains an expert opinion stating that the potential defendant breached the standard of care. This decision appears to run contrary to well-settled limitation-period rules, in particular the rule that discoverability of a claim is not dependent on the plaintiff knowing that the claim may be successful. Any counsel who is involved in a limitations-period motion, or who is seeking to bring a claim more than two years after a client’s loss, will want to make note of the impact of this case. Background The case involves (as suggested) a complex set of facts, and was ultimately dismissed for lack of causation. Boiled down for the sake of the limitation-period piece: in 2011, a plaintiff brought a claim in negligence against various physicians within two years of the date of her injury. Her counsel did not bring a claim against anesthesiologists involved in the plaintiff’s care until some five and a half years later, in 2017 – well after the expiration of the limitation-period. The plaintiff’s counsel only brought the claim against the anesthetists after, in 2015, he obtained an expert opinion critical of their care, implicating them for the plaintiff’s injuries. It’s worth noting that the Plaintiff’s lawyer did receive a verbal opinion regarding the anesthesiologists' care in 2011. However, that expert was supportive of the care at the time. Justice Wilson, writing for the Court, found that the case was particularly complex, and, relying on Joshi v. Dhada et al., 2022 ONSC 4910, that the applicable limitation period does not run in “circumstances where a plaintiff does not ‘sit idle’ but instead ‘take[s] steps to investigate the matters” referred to in the Limitations Act rules. [Bendah at para 274] Essentially, because the plaintiff’s lawyer was “diligent” in their attempts to seek expert opinions, and because it wasn’t clear until 2015 that the anesthesiologists might have breached the standard of care and caused the plaintiff’s injuries, the Court held that the limitation-period for a claim against those physicians did not begin to run until 2015. Analysis This decision appears to fly in the face of the objective (“ought to have…”) portion of the discoverability rules, and erroneously makes discoverability dependent on the potential success of a claim. Section 5(1) of the Ontario Limitations Act sets out that a claim is discovered on the earlier of, (a)    the day on which the person with the claim first knew i) that the injury, loss or damage had occurred, ii) that the injury, loss or damage was caused by or contributed to by an act or omission, iii) that the act or omission was that of the person against whom the claim is made, and iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a) In the Supreme Court’s decision in Grant Thornton LLP v. New Brunswick, the Court held that a claim is discovered “when the plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s part can be drawn.” [Grant Thornton at para 3] The plaintiff in this case, or their counsel, arguably knew or ought to have known of these material facts; they knew enough to seek an opinion of an expert anesthesiologist before bringing their case in 2011. That the opinion was supportive of the anesthesiologists' care is not material. The discovery of a claim does not depend upon the plaintiff knowing that their claim is likely to succeed, i.e. that the case against the prospective defendant will meet the test for negligence. This is a matter that will be determined by the lawsuit itself. [see for example the decisions in Sosnowski v. MacEwen Petroleum Inc., 2019 ONCA 1005; and Hoy v. Expedia Group Inc., 2022 ONSC 6650 at para 243] If we take the counterfactual scenario – that in 2011 the anesthesiology expert instead found that the potential defendant anesthesiologists breached the standard of care – then according to the Court’s analysis, the limitation-period would necessarily have begun on the date that the expert delivered their opinion, not the date of the injury. This cannot be how discoverability of a claim operates. To pin discoverability of a claim on the result of an expert’s opinion as to the success of an element of the test for negligence focuses on whether a plaintiff has knowledge of each constituent element of the claim, and the timing of that knowledge. This approach was rejected by the Supreme Court in Grant Thornton, and for good reason – it ignores the objective elements of the test for discoverability, and causes uncertainty for litigants, particularly defendants, contrary to the purpose of the Limitations Act. Interestingly, Justice Wilson wrote that the act of “including as a defendant every physician or nurse who rendered care to a patient is not appropriate and is not the standard for a lawyer practising in the medical negligence field.” [Bendah at para 268] However, this ignores the reality that many lawyers do practice in this way in order to put forward their clients’ claims within the limitation-period. This case is sure to come up on future limitation period motions unless overturned on appeal – an unlikely prospect given the defendants’ success in the claim writ-large. Plaintiff-side counsel, not only in the medical negligence context but also in cases with complex facts and multiple potential defendants, will seek to rely on this case to extend limitation-periods beyond the two-year period following a loss.

A case comment on the recent medical malpractice decision, Sutherland et al. v Booth, and how to work with and prepare your expert witnesses. Written by Joseph Ur, JSU LAW Pictured above: an expert, relying on flimsy facts. A recent decision of the Ontario Superior Court, Sutherland et al. v Booth, 2024 ONSC 127 is a case study in (i) how to engage and prepare an expert in medical malpractice cases; and (ii) how to cross-examine a witness whose evidence is based on erroneous assumptions. It should be studied by anyone looking to engage experts in litigation. The key takeaways from this case: Choose your experts with care, and be willing to look at their conclusions, and the factual foundations for those conclusions, with a critical eye; and If you can show the court, through effective cross-examination, that the opinion given by an expert witness is based on mistakes or assumptions not borne out in the evidence, you can convince the court to give that opinion little to no weight. Background The case is a tragic one. A patient attended the emergency room and was treated under the supervision of the defendant, Dr. Booth. Dr. Booth’s impression and plan at discharge was “intoxication”. The patient was discharged home and went to sleep. The next morning, the patient was in significantly worse condition. On arrival at the hospital, doctors determined that the patient had suffered a stroke, and was left brain-dead. The patient was pronounced dead three days later. The patient’s family brought an action in medical negligence against Dr. Booth for her failure to detect the stroke. After a 15-day trial in 2023, the action was dismissed for the Plaintiff’s failure to show that Dr. Booth fell below the standard of care. Analysis This case turned entirely on the difference in the parties’ standard of care experts. The plaintiff’s expert made mistakes and overstatements, while the defendant’s expert’s review was measured and grounded in the facts of the case. The decision, written by Justice Gareau, contains a scathing review of the Plaintiff’s standard of care expert, Dr. Edwin Brankston. Gareau J. meanwhile lavished praise on defence counsel’s masterful takedown of Dr. Brankston’s opinion through cross-examination, which in his Honour’s words, was akin to “a surgeon’s scalpel”. Dr. Brankston’s opinion was based on five pillars or conclusions. Through her cross-examination, defence counsel pointed out that Dr. Brankston’s conclusions were based on erroneous facts, which he admitted he was in error on. Among other things, Dr. Brankston: thought Dr. Booth assessed the patient twice when in fact she assessed her five times; thought Dr. Booth did not inquire into the respiratory, abdominal, or urinary condition of the patient, when in fact Dr. Booth’s dictated notes indicated to the contrary, as evidenced by her reported negative findings; erroneously concluded that paramedics observed and reported that the patient had slurred speech, when in fact this was verbal history, given from the patient’s parents to the paramedics; admitted that, based on her examination notes, Dr. Booth did consider other differential diagnoses other than intoxication, contrary to his initial criticism in his evidence in-chief; and erroneously concluded that Dr. Booth didn’t examine the patient’s cerebellar functioning, when her notes indicated that she asked the patient to move her limbs, assessed her speech, and tested for the presence or absence of nystagmus, all of which indicated an assessment of cerebellar functioning; Through cross-examination, and by skillfully showing how Dr. Brankston’s conclusions were based on facts not borne out in the evidence, defence counsel was able to entirely nullify the Plaintiff’s only standard of care expert. "It would be dangerous, even on a balance of probabilities, for the court to accept the evidence..." Dr. Brankston was forced to admit on several occasions that he was wrong in his conclusions and stated facts incorrectly; his evidence was rejected to such a degree that, in the words of Justice Gareau, it would have been dangerous for the court to accept: [141]     …The conclusions reached by Dr. Brankston and the foundations for the opinion reached by him are so replete with errors, misinterpretations and misunderstandings, as acknowledged by him in his evidence, that little weight can be given to the opinion that he provided to the court.  It would be dangerous, even on a balance of probabilities, for the court to accept the evidence of Dr. Brankston to conclude that Dr. Karen Both failed to meet the standard of care expected of an emergency physician on October 17, 2013. On the contrary, the standard of care expert for the defendant, Dr. Marco Sivilotti, seemingly performed well, and his conclusions were unshaken on cross-examination. Gareau J. found Dr. Sivilotti to be extremely knowledgeable, confident in his evidence and opinions, and described the basis of his conclusions in a clear and confident manner based on all the facts at hand. Gareau  J. found Dr. Sivilotti to be “a textbook expert witness” and (amusingly) wrote “Dr. Sivilotti’s presentation in his evidence was smooth, not disjointed. I would describe Dr. Sivilotti as being as smooth as fine Italian silk.” It is also worth noting that Justice Gareau preferred Dr. Sivilotti’s evidence in part because of his superior or more suitable credentials to those of Dr. Brankston, at least for the case at hand. Where Dr. Branston practiced emergency medicine on a part time basis, Dr. Sivilotti had immersed himself in emergency medicine fully and completely since graduating from medical school. [Para. 140] Takeaways Experts in medical malpractice cases are often chosen and engaged by counsel based simply on the fact that they can given a supportive opinion for the litigant that hires them – defendants and plaintiffs alike. While it’s difficult to do so, litigators need to be willing and able to challenge the opinions of their own experts. You must be able, with a critical eye, to review the facts of the case against the expert’s conclusions, just as you would do if you were opposing counsel tasked with cross-examining the expert. If an expert overstates or assumes something, be prepared for those aspects of the expert’s opinion to be challenged on cross-examination. On cross-examination – be willing to dig into the foundation for a witness’s evidence and conclusions. Point out inconsistencies, demonstrate where assumptions have been made without factual backing, and give the court a reason to question the witness’s statements or even their credibility. If you succeed in doing this, like counsel in Sutherland et al. v Booth did to such a degree, the court may give less or no weight to that witness’s evidence.

Allegations of expert opinion bias can upend a legal party's case. This is particularly true in medical malpractice cases, in which cases often come down to a 'battle of experts'. We provide a review of recent decisions involving allegations of expert opinion bias, and tips for how to avoid this issue with your own litigation experts. Written by Joseph Ur, JSU LAW Pictured above: an expert, with a few things on their mind. Experts are the driving force behind factually complex litigation, including in medical malpractice and professional negligence cases. Often these cases are brought on the back of she-said/he-said sets of facts, incomplete notes, and fallible memories. Within that framework, experts present a unique challenge in litigation – despite their involvement in an adversarial process, experts must try to stay impartial. In most cases, experts are entirely uninvolved in the underlying facts of a lawsuit; they are commentators, used to provide context outside of the knowledge and experience of a judge or jury. However, experts in litigation are retained by sides in opposition, and experts are often forced to base their opinions on a set of facts that has been coloured by the lens of the party that hired them. While expert evidence is used as the foundation upon which a party advances and argues their case, the experts themselves cannot step into the role of an advocate. This can be difficult to avoid. Any attempts by an expert to assess credibility, pick one side’s facts over the other, or comment outside of the scope of their expertise could be characterized as bias. In the last decade, it seems to have become more commonplace, and more well-received by courts, for litigators to allege that opposing experts are not impartial or biased in their opinions. An allegation of expert bias is low-risk/high reward – if argued successfully, legal counsel can devalue the opposing expert’s opinion or have the expert excluded from providing the opinion altogether. In any instance, allegations of expert bias can derail a legal party’s entire case, and can be fatal in medical malpractice cases in particular, which are seldom successful without the backing of expert evidence. It has become vitally important for any litigator that makes use of expert witnesses and expert reports to be proactive in avoiding pitfalls of bias, particularly if a case goes to trial. Lawyers should make note of the recent line of case-law in this area when they retain, instruct, and work with experts. Lawyers working with experts should emphasize to them their intended role as a fair and impartial assistant to the court, as well as the following key tips: 1) Experts should be explicit about their assumptions. 2) Experts should be willing to make concessions. 3) Experts are not advocates. Recent notable cases and principles The seminal case on the duty of expert witnesses and expert impartiality is the Supreme Court of Canada’s decision in White Burgess Langille Inman v Abbott and Haliburton Co., which set out the following key points on the admissibility of expert opinion evidence: 1) An expert must be fair, objective and non-partisan. Their duty to assist the court overrides their obligation to the party calling them. If a witness is unable or unwilling to fulfill that duty, they do not qualify to perform the role of an expert and their evidence should be excluded; 2) Absent a challenge to the witness’s impartiality, the expert’s acceptance of their duty will generally be sufficient to establish their impartiality; 3) The burden is then on the party opposing the admission of the evidence to show that there is a realistic concern that the expert is unable and/or unwilling to comply with their duty. The burden to establish admissibility remains on the party proposing to call the evidence; and 4) It is rare that a proposed expert’s evidence would be ruled inadmissible on this basis. Exclusion should only occur in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less should not lead to exclusion, but should be taken into account in the overall weight of the evidence.[1] Despite the ‘rarity’ of expert evidence being ruled inadmissible, and the Supreme Court’s allowance for a grey area (i.e.: ‘anything less’ than the expert’s inability or unwillingness to be impartial) litigants will always be keen to allege bias in an opposing expert’s opinion and will often have success in doing so. The mere suggestion of bias can sow doubt in the trier of fact’s mind, or can result in the successful exclusion of an expert’s evidence altogether. In the 2019 medical malpractice case Parliament et al v Conley, the plaintiffs successfully brought a mid-trial motion to have the defendant physicians’ standard of care expert excluded at trial.[2] They did so based on the proposed expert’s alleged bias both in her expert reports and in a voir dire on qualification. The expert’s alleged bias was in her failure to refer to or consider the plaintiffs’ discovery evidence in her expert reports. The expert instead relied entirely on the defendants’ version of events when coming to her opinions. While the defendants argued that any allegations of bias could be dealt with in cross-examination, the trial judge excluded the expert’s evidence outright, having found that the expert “whole-heartedly accepted the testimony of both doctors as the gospel truth while high-handedly rejecting the plaintiffs’ evidence”.[3] In excluding the expert’s evidence, the trial judge in Parliament relied on the Ontario Court of Appeal decision in Bruff-Murphy v Gunawardena, in which a trial decision was overturned for the judge’s failure to exclude biased expert testimony. In Bruff-Murphy, the expert psychiatrist was allegedly biased for his attempts to find and draw attention to inconsistencies in the plaintiff’s story. The expert “torqued… results [of testing] so that they produced results that supported his conclusion”, and attacked the plaintiff’s credibility outright. In ordering a new trial, the Court of Appeal found that there was a real concern in the expert usurping the role of the trier of fact, and that the expert acted as an advocate for the defendants.[4] The Parliament case also produced another noteworthy decision on expert bias when the jury verdict in favour of the defendants went to the Ontario Court of Appeal. The Court, in similar reliance on its own decision in Bruff-Murphy, overturned the jury verdict and ordered a new trial due to the bias of the defendants’ other standard of care expert.[5] Interestingly, the second expert was deemed to be biased for essentially the same reasons as was the defendants’ first expert, whose evidence was excluded in the mid-trial motion. The Court of Appeal held that the expert “opined on the credibility of the parties in his oral testimony”, and that he was partial in his belief and reliance on the defendants’ evidence, and not the plaintiffs’. Because credibility and reliability of the parties were central issues for the jury to decide, the Court found that the expert was biased, and his evidence should have been excluded.[6] The failures by the experts in Parliament came down to their perceived assessments of credibility. However, there is a fine line between advocating for one side and relying on one side’s version of events in coming to an opinion. As a sidenote, having been involved as counsel in the Parliament case, I recognize that I come to this with my own inherent biases. That said, it would be interesting to know whether either of the experts’ opinions in Parliament would have been deemed acceptable had they explicitly said in their reports and in their oral evidence that their opinions were based on the assumption that the defendants’ recollection of events was correct. It is trite law – from the Supreme Court of Canada’s 1982 decision in R v Abbey – that the weight accorded to an expert’s opinion is dependant on the facts underlying the opinion being borne out in the evidence. If the assumed facts prove to be incorrect, the expert’s opinion becomes worthless.[7] In the recent medical malpractice case Fortune-Ozoike v Wal-Mart Canada Corp., while the trial judge did not exclude the defendants’ experts’ evidence, she entirely discounted both of their experts’ opinions in her reasons for judgment, and admonished the experts’ performances at trial for their alleged biases.[8] The trial judge disregarded the first expert’s opinion for their failure on cross examination to make concessions that there was a breach of the standard of care, despite it being the ‘logical conclusion’ of the expert’s evidence. The trial judge wrote: During his cross-examination, [the expert] was extremely reluctant to admit obvious statements in relation to Dr. Lian’s failure to make notes of his assessment at 1 a.m. It is only after reviewing the policy statement issued by the College of Physicians and Surgeons of Ontario on medical records… that he conceded … that Dr. Lian had a legal obligation to make notes. However, he refused to acknowledge that the standard of care of a practicing physician required them to make notes of their assessments of patients, and he said that he could not comment on the standard of care with respect to handwritten notes, or any notes. [The expert] stated that he did not know whether the standard of care required emergency room physicians to make notes of their assessments of patients. He later said that he did not think that failing to make a note was a breach of the standard of care, but he subsequently reverted to his position that he was not an expert with respect to providing the standard of care for handwritten notes.[9] The trial judge agreed with the plaintiff’s argument that the expert’s “refusal to make obvious concessions [was] a hallmark of expert who has taken on the role of advocate.”[10] The trial judge went on to ignore the evidence of the defendant’s second standard of care expert, referring to their performance as an expert as “deplorable”, and that of an advocate: In cross-examination, [the expert] gave non-responsive answers to simple questions on multiple occasions, he attempted to resile from statements contained in his report, and he refused to admit obvious statements. In addition, he gave answers that made no sense in light of his own reports, the evidence given by Dr. Lai during his examination for discovery and the literature that was accepted as authoritative in the area of orthopaedic medicine, including by [the expert] himself. He also repeatedly referred to “management strategies”, a concept that is not mentioned in his reports and the contents and relevance of which were not explained in any detail in relation to this particular case.[11] Other recent notable cases – primarily in medical malpractice – in which experts have been accused of bias include: In Finnigan et al v Lee, the trial judge found that the plaintiff’s expert took on the role of an advocate and was less credible than the defendant’s expert, whose evidence she preferred. The expert “seemed ready to find all of the defendant’s actions to be breaches of the standard of care. His opinions were not consistent throughout. In examination in chief, he appeared unwavering regarding his opinions but, in cross-examination, conceded that numerous of the actions he found to be in breach of standards of care were not actually so… His reports were not always consistent with his evidence at trial, which seemed intent on establishing the defendant’s liability.”[12] In Hasan v Trillium Health Centre Mississauga, the trial judge preferred the plaintiff’s expert’s evidence, having been left with “very serious concerns over [the defendant’s expert’s] reliability as an impartial expert and his understanding of his obligations to the court.” The defendant’s expert was found to have deliberately minimized the defendant’s clear missteps as an emergency physician as insignificant, and further speculated on the defendant’s thought processes without evidence to support his conclusions.[13] In Leckie v Chaiton, the trial judge preferred the defendant’s expert’s evidence to that of the plaintiff’s expert, who the trial judge deemed to take on the role of an advocate. The trial judge discounted the expert’s evidence due to: (i) his approach being overly theoretical and “divorced from what was actually happening in the community setting” at the material time; (ii) his failure to consider the defendant’s evidence of his usual practice; and (iii) his attempts to hold the defendant to a standard of care considerably higher than that which he acknowledged applies to himself and other physicians.[14] In Hamelin v Mikkelsen et al, the trial judge excluded the plaintiff’s expert from giving evidence in a jury trial. The expert was found to have relied on internet research – performed only after forming his opinion – that conformed to his conclusions, while specifically ignoring any unsupportive research findings. The expert also refused to acknowledge the expertise of the defendant’s expert in a “partisan” rebuttal report.[15] Takeaways, and instructions to experts Allegations of bias are low-risk/high-reward for the accusing party. In medical malpractice cases, which can rarely be brought without the backing of expert evidence, the exclusion of an expert’s evidence can be fatal. The stakes for litigators who are concerned with their own expert’s perceived biases are therefore extremely high, particularly in advance of trial. Counsel should be proactive with their instruction of experts to avoid any pitfalls in expert reports or in an expert’s testimony, and take the following into account: 1) Experts should be explicit about their assumptions. This is a practice point that I have taken forward with me for all my medical malpractice cases. In coming to their opinions, experts need to consider all the material for a case, including the opposing party’s discovery evidence. If the discovery evidence is diametrically opposed on some key facts, the expert should be explicit as to which facts or which evidence they are relying upon in coming to their conclusions, and they should note this as an assumption underpinning their opinion. In medical malpractice cases, a medical practitioner will often claim that their usual practice is to do ‘X’ despite there being no written record of them performing that action. Similarly, a patient may have a recollection of events from one of their attendances or appointments without any notes to that effect. An expert doesn’t need to make a determination on the credibility of either party to get through this. Rather, the expert should set out that their opinion is based on the assumption of a fact, or better yet, the expert should say how their opinion would change, if at all, if a fact they rely on is not borne out in the evidence. While this proactive approach may seem to dilute the expert’s opinion, it will go a long way in reinforcing the credibility of the expert by removing any suggestion that they are advocating for one side by ‘ignoring’ the other. 2) Experts should be willing to make concessions. “When the facts change, I change my mind. What do you do sir?” This quote, attributed by some to the economist John Maynard Keynes, comes to my mind for this tip, which is similar to the first tip in many ways. Tell your experts to agree with the opposing view, and to be willing to concede opposing points when they are reasonable or make factual sense. Experts are allowed to change their mind if they are presented with different facts or points of view. A standard of care expert in a medical malpractice case, whether supportive or critical of the defendant, must be willing to concede the opposing view when confronted with hypotheticals and counterfactuals. Experts should be coached, within reason, to expect this type of confrontation in rebuttal reports and cross-examination at trial, and should be advised to resile from and concede points when appropriate. 3) Experts are not advocates. This seems obvious, but it bears repeating and should be emphasized to any expert that a lawyer works with. Experts must be fair, objective, and non-partisan. Experts themselves do not put one side’s case forward over another – this must be left to the lawyers. To that end, partisan or strong language in favour of one side should be avoided in expert reports and in the expert’s testimony. Experts should refrain from pedantry and nitpicking, and should leave overall judgment of behaviour or credibility to the trier of fact. A deferential and measured approach in expert reports and testimony will be received much better than an overzealous opinion. Lawyers should sit down with their experts and discuss this at the outset of a case. Provincial rules of civil procedure on the use of expert opinion evidence (such as Ontario’s Rule 53.03 and corresponding Form 53) should not be glossed over. Someone getting paid to assist with a case will naturally want to be of assistance. Litigators must be clear with expectations and must ensure that the expert’s assistance does not stray into advocacy. References: [1] White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at paras 46-49. [2] Parliament et al v Conley and Park, 2019 ONSC 3995. [3] Ibid at paras 30-36. [4] Bruff-Murphy v. Gunawardena, 2017 ONCA 502. [5] Parliament v Conley, 2021 ONCA 261. [6] Ibid at paras 49-55. [7] R v Abbey, 1982 CanLII 25 (SCC), [1982] 2 SCR 24; See also the decision in the medical malpractice case Sommerville v Fine, 2021 ONSC 5638 at para 343 – “In my view, an expert is entitled to base their opinion on assumed facts. This does not make an expert an advocate. Also, while there was some selective quoting, I am not persuaded, on balance, that [the expert] acted as an advocate.” [8] Fortune-Ozoike v Wal-Mart Canada Corp., 2023 ONSC 421. [9] Ibid at para 106. [10] Ibid at para 110. [11] Ibid at paras 136-137. [12] Finnigan et al v Lee, 2023 ONSC 489. [13] Hasan v Trillium Health Centre Mississauga, 2022 ONSC 3988. [14] Leckie v Chaiton, 2021 ONSC 7770. [15] Hamelin v Mikkelsen et al, 2018 ONSC 2984. Written by Joseph Ur, JSU LAW The views and content of this blog are provided for informational purposes only, and should not be construed as legal advice.

Believe it or not, A.I. tools like ChatGPT can produce incredible looking legal research results in a fraction of the time that it takes a measly human lawyer to complete - just don't rely on the results for accuracy or legal advice. Written by Joseph Ur, JSU LAW Pictured above: an A.I.-generated depiction of ChatGPT, trying its best Since its launch in late 2022, ChatGPT has been a hot topic (and participant!) of conversations the world over, and has renewed many debates about the integration of A.I. in day-to-day life and business. In many sectors of the economy, including in the legal world, people have been eager to integrate the power behind ChatGPT and similar services into their work or professional practices. Articles with enticing and click-baity titles like ‘Leveraging ChatGPT to save advertising professionals' time’, or ‘Seven ways to use ChatGPT at Work to Boost Your Productivity, Make Your Job Easier, and Save a Ton of Time!” are pervasive on the internet – and why not! ChatGPT is an incredible tool, and it only takes a few minutes of “speaking” to it to realize how powerful and useful a tool it might be. So, like with any good click-bait, I surrendered to ChatGPT’s allure. I employed ChatGPT to help with some legal research, which seemed like an obvious and effective way to save time in what can be a more tedious area of my practice. I help lots of my lawyer clients with research in many different areas of the law to help them advise their own clients, or to work up a legal argument for their court documents. Any timesaving on that front is very valuable for me and therefore to my clients too. I was sure any bot worth its circuits would be able to handle a quick research request. However – and this is something I’ve heard anecdotally from many friends and colleagues – what I discovered is that ChatGPT’s output is very hit or miss, and can often be the substantive equivalent of a Potemkin village: it looks great from far away, but once you delve deeper or have some knowledge of the inner workings, you realize it’s just a façade. "I apologize for my mistake earlier..." - ChatGPT For example, I asked ChatGPT to review s.320.22 of Criminal Code for me, which deals with aggravating factors for sentencing purposes for various motor vehicle (conveyance) related offences. ChatGPT confidently, and in no time at all, listed off the factors under s.320.22 and suggested I look at three specific case decisions to help me in my research. It even gave me the case citations, a brief description of each case, and how the court applied the aggravating factors in their decisions. Unbelievable! The output was concise and looked frighteningly similar to some emails I’ve sent to or received from colleagues in response to research requests. Then I delved deeper. The list of factors ChatGPT listed under s.320.22 was incomplete. In fact, some of them looked confusingly wrong. Also, the cases it suggested were all related to drug possession. I politely asked ChatGPT to fix the confusion, and reconsider the same query but with specific references to conveyance offences this time. It told me with an eerie HAL9000-like subtext that it was correct, and rather I was the one who was confused – s.320.22 doesn’t relate conveyances. “I’m sorry Joe, I’m afraid I can’t do that for you.” I thought this was strange, not only because I was being gaslit by a machine, but also because it doesn’t take much more than a quick Google search to look up and spit out the contents of a statute, especially one as ubiquitous as the Canadian Criminal Code. Eventually ChatGPT admitted to its errors: “I apologize for my mistake earlier. You are correct that Section 320.22 of the Criminal Code of Canada does relate to aggravating factors for offenses relating to conveyances”. Suitably humbled, ChatGPT then rattled off the correct list of aggravating factors, and provided me with another set of cases to check out. However, the new aggravating factors it listed were wrong again! Every time I asked for it to recheck its results, ChatGPT went on a loop of apologizing for its mistake, and providing me with a new and consistently incorrect list of factors, like a malfunctioning Westworld host. ChatGPT's research results were made up out of whole cloth... it was empty content dressed up to look like professional advice. This broken back and forth continued until I copied and pasted the true list of factors into my query, to which ChatGPT responded with another apology, the correct list of factors, and another set of cases. At this point, I was getting worried about how much handholding my new-hire required… I asked ChatGPT for cases where 3 particular aggravating factors were considered in the court’s decision, and ChatGPT obliged my request with another nice list of cases for my review. Then I looked into the cases: they didn’t exist. ChatGPT's research results were made up out of whole cloth. The case citations were either completely fabricated, or they were real but led to completely different cases than ChatGPT had described, entirely unrelated to the area of law I was researching. It was empty content dressed up to look like professional advice. Unfortunately, this was cause for dismissal. I duly fired ChatGPT without notice, did the research myself, and didn’t bill for ChatGPT’s time. It turns out A.I. is about as good at legal research as it is at drawing a human hand. ChatGPT is great at predicting what legal research results should look like, but beneath its results is a 13-fingered monstrosity. Don’t get me wrong, I really like the idea of using A.I. and new technological advances to save time and to make my work more efficient. However, I think bots and tools like ChatGPT are a few more beta-tests away from being useful for more nuanced requests. As far as legal work goes, I won’t fear the Skynet-style A.I. apocalypse, or a ‘great A.I. replacement’ of my job just yet, and nor should you if you work in this field. As for my business - rest assured that if you are one of my clients looking for legal support or advice, I’ll be handling the research work myself for the time being. Written by Joseph Ur, JSU LAW The views and content of this blog are provided for informational purposes only, and should not be construed as legal advice.