Could “Hot Tubbing” Bring Fairness to Personal Injury Claims in both Tort and Accident Benefits?
It certainly sounds odd, but “hot tubbing” — as the term is used in the context of expert evidence — just might be a way to fix Ontario’s broken accident benefits system.
Editor Gail Cohen’s recent column in Canadian Lawyer magazine explains the concept of “hot tubbing” as it is used in relation to personal injury expert evidence. It’s a term coined in Australia “to describe the procedure of organizing all experts in a case into a panel and hearing their evidence concurrently.”
According to the Globe & Mail, the more formal name for this procedure is “concurrent evidence” and it is common practice in Australia. And judges tend to like this model.
“This [method] allows lawyers and the judge to question the experts in each other’s presence. It also allows the experts to directly challenge each other’s evidence. Ideally, a judge with only a layman’s knowledge of complex technical matters can more easily pinpoint the key issues in a case.”
Cohen points out that while panels of experts from both sides of a dispute are sometimes used in tribunals and other administrative bodies, this is not at all the case for auto accident insurance disputes in Ontario, which is widely viewed as skewed in favour of insurers. She claims that the system of medico-legal experts distorts evidence, and there are allegations that assessment clinics have at times changed doctors’ reports, which is later a shock to those doctors when they testify in court.
Cohen also notes that the Ontario Trial Lawyers Association has called for an inquiry into the system of expert witnesses, and suggests that:
“Maybe hot tubbing is the way to go with personal injury claims. Have the expert reports prepared by a panel of approved medico-legal practitioners who are approved by both sides. You’ll need fewer experts, which will save all sides money and definitely make it easier in terms of the time demanded of claimants to attend medical evaluations.”
However, there can be downsides to the method. Ian Hull notes that hot tubbing “can also have its downsides if one expert tends to dominate the other in presenting their evidence, or if the experts do not respond well to the more collaborative approach.”
Perhaps there’s another solution to the expert witness problem. In his 2014 Ontario Automobile Insurance Dispute Resolution System Review Final Report, Justice Cunningham recommended that:
“Experts should be required to certify their duty to the tribunal and to provide fair, objective and non-partisan evidence. Arbitrators should ignore evidence that is not fair, objective or non-partisan and, in such instances, the expert should not receive compensation for appearing as a witness.” (Recommendation #18)
In response to that recommendation, the new License Appeal Tribunal Rules do require experts to sign a statement acknowledging their duty to provide opinion evidence that is fair, objective, and non-partisan — but the rules are silent as to the other areas mentioned in Recommendation #18.
For now, the practice of hot tubbing is fairly new to Canada and not used all that often, but we’ll watch to see if there’s an increase in its use. We’ll also keep tabs on whether there’s a positive change in the way medical experts are used under the new LAT system.