When is it "Not Reasonable" to Deny the Cross-Examination of an Expert?
Cross-examining experts is the primary way in which competing expert opinions are tested in the adversarial process.
The Alberta Court of Appeal in its recent decision in Johnson v. Alberta (Appeals Commission for Alberta Workers' Compensation) recently determined that a decision not to allow a cross-examination may not be reasonable, in particular where without a cross-examination it may be difficult to resolve a difference of opinion between competing experts in a "fair, justified and transparent manner."
The issue on this appeal was whether the Respondent, Mr. Johnson, was entitled to a viva voce cross-examination of four documents that gave opinions to the Worker's Compensation Board of Alberta (the "WCB") relating to Johnson's health and the source of his disabilities. Mr. Johnson had slipped getting out of the box of a truck while at work, striking his back against the bumper. Mr. Johnson's family physician diagnosed his injuries as "low back strain - possible cauda equina injury".
The WCB accepted Mr. Johnson's injury as work-related and determined that Mr. Johnson was entitled to benefits. On May 3, 2004, however, the WCB advised Mr. Johnson that he could return to work, and that temporary total disability benefits would be issued only to April 30, 2004. On October 12, 2004 Mr. Johnson's WCB Case Manger advised Mr. Johnson that his injury had resolved. Mr. Johnson's family doctor, however, continued to be of the view as late as July 2006 that Mr. Johnson continued to have symptoms from his injury.
The WCB was asked to reopen the case, or to review the decision of the Claims Adjudicator. The WCB refused to do so, responding that further medical reports and further information from the respondent would be required before it could determine Mr. Johnson's ongoing eligibility. The WCB secured further medical reports indicating that Mr. Johnson's continuing symptoms were the result of degenerative changes. The WCB did not re-open Mr. Johnson's claim.
A Notice of Appeal was filed to the Appeals Commission, in which Mr. Johnson's counsel requested that the physicians who had expressed a view that Mr. Johnson's ongoing symptoms were not attributed to the workplace injury be asked to attend. The Appeals Commission denied this application.
Mr. Johnson sought relief in the Court of Queen's Bench. The issue at the Court of Queen's Bench was "...whether it was a breach of natural justice or of procedural fairness for the Appeals Commission to decline to issue Notices to Attend to the four physicians." Shortly after Johnson's originating notice was filed with the Court of Queen's Bench, the Appeals Commission conducted a second hearing on the merits of the dispute.
The Court of Queen's Bench determined that Johnson was entitled to conduct a cross-examination of the physicians. The Court of Appeal upheld this determination noting also that it was "...troubling that the Appeals Commission would, of its own motion, reconsider its earlier decision shortly after the Respondent filed his originating notice in the Court of Queen's Bench invoking his appeal rights under s. 13.4 of the [Workers Compensation Act, R.S.A. 2000, c. W-15] on a question of law or jurisdiction."
The Court of Appeal went on to find that while the Appeals Commission and the Court of Queen's Bench relied upon the factors in Baker v. Canada (Minister of Citizenship and Immigration), it was unnecessary in this matter to use the Baker factors. Rather, the Workers Compensation Act and the procedural rules of the Appeals Commission outline whether Johnson had a "reasonable expectation" that a cross-examination would be allowed.
The Court of Appeal determined that "[t]he dispute was obvious, and the proposed line of questioning clearly relevant..." Accordingly, the decision of the chambers judge setting aside the order of the Appeals Commission was affirmed, and the matter was sent back to the Appeals Commission.
This decision illustrates the importance of preserving the right to cross-examination of experts before a regulatory body. Where there is conflicting evidence, there may be a "reasonable expectation" that cross-examinations will be permitted.
Albert Court of Appeal Docket Number: 1003-0247-AC
Date Appeal Granted: December 2, 2011
Alberta Court of Appeal Alberta Court of Queen's Bench Appeals Commission cross-examining experts not allow cross-examination of expert viva voce cross-examination Worker's Compensation Board of Alberta