When there are two opposing expert opinions in a medical malpractice case, is it appropriate for a motions judge to weigh evidence and make findings of credibility?

Ontario, Canada


The following excerpt is from Claudia and Louis Sytsma v. Dr. Keleshian and others, 2015 ONSC 138 (CanLII):

I am mindful of the latitude given to a motions judge to weigh evidence and make findings of credibility when it is just to the parties to do so (see: Hryniak v. Mauldin, [2014] S.C.C. No. 7, para. 66). However, when there are warring expert opinions as is evident in this case, I am of the view that justice is best served by a trial in which their evidence may be heard, tested by counsel and clarified as necessary through questions from the trial judge.

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