Can an accident benefits insurer retain an expert to advise on a tort action?

In Song v. Hong, [2008] O.J. No. 772, 58 C.P.C. (6th) 135 (S.C.J.), the plaintiff's accident benefits insurer retained an occupational therapist in relation to her accident benefits claim. The same occupational therapist provided an opinion to the insurer of the defendant in a tort action brought by the plaintiff. Justice Moore held that she could not testify for the defendant as to her opinions. He stated the following [at para. 65]: On behalf of vehicle owners and drivers named as defendants in a tort case, such as this one, the insurer's contractual obligation is to provide defence and indemnity in accordance with the policy provisions. Those defendants do not owe a duty of good faith to the plaintiff; in fact those defendants may (and have here) set their position in litigation adverse to the claims made by the plaintiff. In the context of the tort claim, there is no direct, contractual or other dealing between the plaintiff and the insurer. A conflict of interest situation could well arise for an insurer that allows information from an accident benefits file to bleed through to a tort file, and vice versa. Analysis