Marshall v. Durham Regional Police Service, 2011 HRTO 1246

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Charmaine Marshall

Applicant

-and-

Durham Regional Police Service and Glen Turpin

Respondents

-and-

Psychiatric Patient Advocate Office

Intervenor

A N D B E T W E E N:

Charmaine Marshall

Applicant

-and-

Lakeridge Health Corporation and Erik Paidra

Respondents

-and-

Psychiatric Patient Advocate Office

Intervenor

Interim Decision

Adjudicator: David Muir

Date: June 29, 2011

Citation: 2011 HRTO 1246

Indexed as: Marshall v. Durham Regional Police Service

1These are two Applications dated June 26, 2009, under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), filed against the Durham Regional Police Service and Glen Turpin (“police Application respondents”) and Lakeridge Health Corporation (“Lakeridge”) and Dr. Erik Paidra. The underlying complaints were both filed with the Ontario Human Rights Commission on June 16, 2007. This Decision deals with a number of evidentiary issues which arose during the last day of hearing on June 10, 2011.

2The respondents Lakeridge and Dr. Paidra both challenge the right of the party intervenor to lead expert opinion evidence through one of its own employees. These respondents object to the witness on a number of grounds: first, that the witness an employee of the party calling him and lacks the requisite independence to give opinion evidence; second, that his opinion evidence is not necessary; and third, that he lacks the requisite expertise to give opinion evidence. The remaining respondents took no position on this issue.

3The Intervenor and the applicant both say that the tendered witness should be allowed to give opinion evidence within his areas of expertise.

4For the reasons that follow I have concluded that to the extent that the witness is tendered to give an opinion in respect of the issues in this case, his evidence is not admissible; however, I have also concluded that much of the witness’ anticipated evidence is not truly opinion evidence and may be helpful to the Tribunal in adjudicating these matters.

5The witness, Stanley Stylianos, is the Program Manager for the Intervenor, the Psychiatric Patients Advocate Office (“PPAO”). He supervises Patient Advocates who work in 10 tertiary care facilities, for the most part former psychiatric institutions. He works closely with counsel for the intervenor. He had no contact with the applicant, in respect of this case prior to the hearing. The witness is expected to testify with respect to the following matters:

a. the mandate and role of the PPAO and its three core services;

b. the role of PPAO in supporting persons who have been placed in restraint;

c. the rights of patients during police apprehensions under the Mental Health Act on transfer to a hospital emergency room;

d. the rights of patients during a hospital emergency room intake and Form 1 assessment pursuant to such apprehensions;

e. the history of stigma and discrimination faced by persons with, or who are perceived to have, a mental illness, i.e., that they are dangerous, that they need to be compliant, that they cannot be trusted to participate in their own care, etc; and

f. the existence and nature of the barriers people with (and people perceived to have) mental health disabilities experience when accessing primary health care.

6The witness is expected to give an opinion that the applicant’s treatment was inconsistent with the following:

a. the legal rights of a person under the Mental Health Act as he understands them;

b. best practices and accommodation with respect to risk assessment and the use of restraints as he understands them (with reference to the James Inquest); and

c. adequate access to, and accommodation in, primary health care as a right of mental health patients.

7The party proposing to call this evidence was granted intervenor status by the Tribunal in 2011 HRTO 898. The intervenor was given standing as a full party because it is a public interest organization advocating for persons who find themselves apprehended and detained in hospitals under a Form 1, as the applicant was in this case:

The PPAO seeks intervenor status as a full party to assist the Tribunal in addressing the questions of discrimination and perceived mental health disability raised in these proceedings. The PPAO also specifically wishes to address how police apprehensions pursuant to the Mental Health Act, R.S.O. 1990, c. M.7, may be conducted in a discriminatory manner based on perceptions of disability related to mental illness, and further, that information provided by police may unduly and negatively influence the emergency intake and assessment process and medical staff, in turn perpetuating discriminatory barriers to the equitable access of medical services.

The PPAO states that it intends to support the position of the applicant that her right to be free from discrimination on the basis of perceived mental health disability was violated by the respondent health service providers, and that this created a barrier to equitably accessing primary health care services. The PPAO also intends to support the position of the applicant that her right to be free from discrimination on the basis of perceived mental health disability was violated by the respondent police service.

The PPAO proposes to call the evidence of its Program Manager for Advocacy at the hearing if granted intervenor status, and seeks full party status, which would entail the right to examine and cross-examine witnesses and make submissions.

8The Tribunal concluded as follows:

In my view, the PPAO has recognized experience and expertise in the area of mental health issues, which may be of assistance to the Tribunal in this case. I also am concerned that the applicant is no longer represented by counsel in this proceeding and am of the view that the Tribunal may be assisted by having PPAO counsel participate as a party intervenor in this proceeding. Accordingly, I hereby grant the PPAO status as an intervenor as a full party in this proceeding.

The Independence Issue

9The respondent Lakeridge, supported by Dr. Paidra, challenges the right of this witness to give expert opinion evidence because he is not independent of a party to this proceeding, a necessary pre-condition to his being entitled to give such evidence.

10The intervenor states that it is a public interest advocacy organization - that is its purpose and the basis for it being granted party intervenor status. The intervenor states that it brings a distinct perspective to these issues independent of all of the parties including the applicant, which enhances its independence. The intervenor also states that there is an access to justice issue at play in that the applicant is unrepresented.

11The applicant spoke to her purpose in proceeding with this Application, which is consistent with the role played by the intervenor. She states that she is concerned with how persons with mental disabilities or perceived mental disabilities are treated. This is similar to the role of the intervenor. The applicant stated that she believes that Mr. Stylianos can give an insightful and necessary opinion.

12The respondents Lakeridge and Dr. Paidra relied on three decisions of the Ontario Superior Court of Justice where this issue was canvassed. The most complete discussion may be in Fraser and Smith v. Haukioja, unreported, August 27, 2008, Court File No.: 02-CV-231638 CM1 at paras 137 - 142:

This is a difficult case and it has been made all the more so by the evidence and attitude of four of the experts who attended and who gave evidence at trial. It is generally understood that an expert stands in a position of privilege when compared to lay witnesses for an expert is allowed to offer opinions on matters within the expert's area of expertise. A party seeking to call expert evidence must show that the subject matter of the expert's opinion falls outside the likely range of knowledge and experience of the trier of fact.

Whatever role the expert may have undertaken during the course of the litigation in assisting counsel to a fuller appreciation of the facts in dispute and the inferences that might be drawn from them, the expert must set aside that role upon entering the witness box at trial. From the witness box the expert speaks only to assist the court.

At trial the expert must be and appear to be independent of the party or counsel who retained the services of the expert and must demonstrate objectivity and impartiality in the analyses and opinions that she or he is allowed to give. Because the opinions stated by an expert are predicated upon expertise that the court does not possess, the court must be confident in relying upon the expert to provide a thorough, balanced and technically sound analysis. Independence and impartiality; the court expects nothing more and it will accept nothing less.

The court endeavours to adjudicate each matter coming before it fairly and free from bias. To the extent that the court must receive and rely upon the expert opinions of others and to the extent that those opinions are tainted, the administration of justice is imperilled.

In England (and also in Canada), courts have identified and applied several factors relevant to the receipt of expert evidence including:

1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation....

2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his [or her] expertise.... An expert witness ... should never assume the role of an advocate.

3. An expert witness should state the facts or assumptions upon which his [or her] opinion is based. He [or she] should not omit to consider material facts which could detract from his [or her] concluded opinion....

4. An expert witness should make it clear when a particular question or issue falls outside his [or her] expertise.

5. If an expert's opinion is not properly researched because he [or she] considers [there to be] ... insufficient data ... available, then this must be stated with an indication that the opinion is no more than a provisional one.... In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report....

The independence of Dr. Neal rises to a level of concern for the court since the doctor has chosen to include reference in his C.V. (trial exhibit 37) to the fact that he is a medical expert for the law firm that retained him in this case and, as well, by his agreement to provide a formal opinion to counsel in writing only after discussing his views with counsel orally.

( see as well Fellowes McNeil and Kansa General International Insurance Company Ltd, et. al., 1998 CanLII 14856 (On SC) and Stephen J. Dulong v. Merrill Lynch Canada Inc., J. Scott Carling Miller and Michael Henderson, 2006 CanLII 9146 (ON SC)).

13In McKay v. Toronto Police Services Board, 2011 HRTO 499, the Tribunal considered the role of an expert witness in somewhat different circumstances:

There is no question that an expert witness must be objective. See R. v. D.D., supra. However, objectivity does not mean that an expert is devoid of community connections and/or derives opinions in abstraction absent any familiarity with the parties or their counsel. Experts are proffered precisely because they have expansive or deep knowledge of the field and respected reputations and affiliations, which sometimes may relate to, or overlap with, a party, particularly if the dispute comes out of a small or specialized industry. Further, in the human rights context, I am sensitive to the access to justice concerns for marginalized and equity seeking groups that may arise if rules of evidence are rigidly applied to exclude potential experts that have worked within or on behalf of such groups. A Tribunal’s inquiry with respect to (im) partiality should focus on whether, considering the nature and degree of association, the expert is able and willing to provide independent, objective and authoritative evidence, not argument, to assist the decision-maker regardless of which side the information favours.

I do not accept that Rudin’s association with ALST constitutes sufficient indicia of partiality in these circumstances. Rudin is not an advocate, nor a party, in this litigation. Rudin is the author of a body of scholarship which existed prior to and separate from this case. There was nothing in Rudin’s anticipated testimony or professional experience that suggested the information he intended to share with this Tribunal would be swayed or coloured by his connection with ALST. I also accept the complainant’s point that other quasi-judicial fora have allowed Rudin’s expert opinion, notwithstanding ALST’s participation as legal representative (Barkman Inquest) and as a party (Ipperwash Inquiry) in those proceedings. Further, after hearing from Rudin, I am satisfied that Rudin and his evidence did not evince any taint of partisanship. Rudin was carefully cross-examined about his knowledge and the research/data, or lack thereof, supporting his opinions and his answers disclosed no hint of partiality.

14I have considered the respondents’ objections to this witness’ opinion evidence. To the extent that the intervenor seeks to elicit an opinion from this witness, I agree with the respondents that the witness does not have the requisite independence necessary to proffer expert evidence on the issues for which his opinion was being offered by the intervenor.

15Following on the Tribunal’s comments in McKay, supra, with which I generally agree, I note that unlike in McKay, supra Mr. Stylianos is an employee of a party intervenor to this proceeding. The intervenor is supporting the applicant, taking positions adverse to the respondents, and seeking remedies from the respondents. The witness is an employee of a partisan in this proceeding. Given its status in this proceeding it does not matter that that the intervenor has no pecuniary interest in the proceeding as was suggested by the intervenor.

16I am aware of the access to justice issue, but note as did the respondents that the question is not the right of the intervenor or the applicant to call expert opinion evidence but rather the intervenor’s choice of witness. There is nothing in this decision that would prevent the intervenor and/or the applicant from calling an expert to give an opinion on matters touching this case.

17In light of my finding that Mr. Stylianos will not be allowed to provide expert evidence in this proceeding, it is unnecessary to address Lakeridge and Dr. Paidra’s objections to Mr. Stylianos’ qualifications as an expert. I also note that to the extent that Mr. Stylianos’ proposed evidence contains opinion evidence those portions of his proposed evidence go to issues that are ultimately for the Tribunal to determine and therefore not necessary to assist me as the trier of fact (Persaud v. Toronto District School Board, 2008 HRTO 92).

18However, I also note that in reviewing Mr. Stylianos ‘anticipated evidence I find that much of it is not in the nature of opinion evidence even where described as such . I note that the basis offered by the intervenor for Mr. Stylianos’ expertise is the representation and advocacy work that he and his organization perform on behalf of individuals similarly situated to the applicant’s on the night of July 20/21, 2006. In particular, Mr. Stylianos is being proposed as a witness to speak to best practices in the treatment of persons detained under a Form 1, their transfer to hospital, and access to health care while in hospital. Because of his experience as an advocate for persons with mental disabilities his evidence may be helpful to the Tribunal. So, for example, under what is described as Mr. Stylianos’ opinion that best practices were not followed in this case, the evidence of Mr. Stylianos with respect to what best practices are in situations like these is admissible and may be helpful to the adjudication of this case. What Mr. Stylianos is not permitted to do, however, is provide his opinion with respect to whether or not best practices were or were not followed in Ms. Marshall’s circumstances. If the intervenor and or applicant feel that such opinion evidence is necessary they will need to find an expert who has greater independence than Mr. Stylianos.

19As regards the other matters raised by the respondents, I am satisfied that Mr. Stylianos is entitled by reason primarily of his experience as patient advocate to give evidence touching on the issues raised in this Application, as outlined above. The respondent Lakeridge took issue with his experience in primary health care delivery settings. I am satisfied based on the testimony to date of Mr. Stylianos that his experience working in emergency intake in tertiary care facilities is sufficiently similar to the circumstances in this case that his evidence may be helpful and necessary. In any event this is a matter going to the weight to be given to this evidence not its admissibility.

20I have reviewed in detail the expected evidence of Mr. Stylianos. I have already heard much of what is suggested by the description of Mr. Stylianos’ proposed evidence as set out in paragraphs 5 (a) and (b) and need hear nothing further on those points. The proposed evidence described in paragraph 5(e) of this Interim Decision is not necessary as it well understood that persons with mental disability (or perceived disability) have historically been subject to stigmatization and discrimination. It is not necessary to educate the Tribunal on these points. Mr. Stylianos is entitled to give evidence with respect to the issues described in paragraphs 5(c), (d) and (f) of this Interim Decision. Finally, as indicated above, Mr. Stylianos can speak to best practices and procedures under the headings set out in paragraphs 6(b) and (c). As regards the witness’s views with respect to the legal rights of persons under the Mental Health Act he is of course not entitled to give a legal opinion; not because he is not a lawyer, as suggested by the intervenor, but because legal opinions are generally not admissible as evidence. However, he may speak to his understanding of how a patient’s rights under the Act ought to be vindicated practically in their apprehension by the police, their transfer to the hospital, and subsequent assessment and treatment while in hospital.

Admissibility of medical records

21In the course of cross-examination of the applicant, the respondent P.C. Turpin questioned her on two documents, which had not then been introduced into evidence. One was a letter dated June 16, 2010 allegedly authored by the applicant’s family physician, which purports to describe, amongst other things, treatment of injuries sustained by the applicant in the course of the events giving rise to this Application. The other document appears to be the clinical notes and records of the treatment of the applicant at a walk-in clinic beginning on July 23, 2006, a couple of days after the events in issue. At the hearing these documents were tentatively marked as Exhibits 15 and 16 respectively. The respondent Dr. Paidra has suggested that they instead be marked as Exhibits A and B. Given their uncertain status, which may not be entirely resolved by this Decision, this appears to be a sensible approach.

22The letter of the applicant’s family physician, Exhibit A, appears to have been introduced in cross-examination for purposes of establishing that it was a fabrication. The clinical notes and records were put to the applicant only to establish whether they were related to Exhibit A, ie were they the notes of the applicant’s family physician. Based on the applicant’s evidence it is clear that Exhibit B contains the notes of an attendance at a walk in clinic and not those of her family physician. The intervenor and applicant now seek to have them introduced into evidence as contemporaneous records of treatment for injuries received on the evening of July 20, 2006 that were not treated by the respondent Lakeridge.

23The respondents Lakeridge and Dr. Paidra object to these documents being introduced for any purpose other than those set out above. The other respondents have adopted similar positions.

24I am satisfied that the most fair and just manner of proceeding is to have these documents entered into evidence subject to their authors being produced for cross-examination. The respondents correctly state that these documents ought to have been introduced by the applicant if the applicant and/or intervenor had wanted to rely upon them. Their existence has been known in some sense for a considerable period of time. However, as a consequence of the respondent P.C. Turpin putting them to the applicant in cross-examination their contents have now been disclosed to all and appear to be arguably relevant to the extent that they might support the applicant’s allegation that she was injured on the night of July 20/21, 2006 and not treated for those injuries by the respondents Lakeridge and Praida.

25In balancing the potential prejudice to the parties, it seems to me that the prejudice to the respondents is negligible. Any prejudice in their having to respond to what is corroborative evidence of that given by the applicant can be remedied by a short adjournment and orders for the production of some of the clinical notes and records of the physicians who authored these documents. On balance, the most fair, just and expeditious manner of proceeding is to allow this evidence in.

26The respondents also state that some of the issues raised in these documents are not relevant to the liability of the respondents. For example, the respondent Dr. Paidra states that the evidence of injuries allegedly sustained by the applicant on July 20/21 is not relevant to the liability phase. I do not agree.

27There is much in Exhibit A that is not relevant at this stage, such as the narrative of the events of July 20/21, 2006, including the reference to low blood sugar, which can only have come from the applicant. However, as indicated above, some of the contents of this document is potentially corroborative evidence of injuries sustained on the evening of July 20/21, 2006. An assessment of the applicant by Dr. Kerr at the time, if that is what this Exhibit in part is recording, would be arguably relevant to a central question for resolution that being whether the applicant received differential treatment at the hospital because she was perceived to be a person with a disability. Similar issues arise with respect to Exhibit B and for the reasons set out above I have concluded that these notes may also be arguably relevant to whether injuries were sustained by the applicant on the night in question and not treated by the respondents Lakeridge and Dr. Paidra.

28The respondents have indicated that the authenticity of Exhibit A is in question and they require that Dr. Kerr be produced to prove the letter. I agree. The respondent Dr. Paidra states as well that the Whitby Medical notes are not precisely contemporaneous, giving rise to some question about when the injuries recorded there were sustained. I agree. The authors of these notes if they are to be relied on should be produced as well.

29The respondents have also indicated that in order to properly prepare to examine these witnesses production of the applicant’s medical records will be required. I agree. Exhibit A appears to be a letter from the applicant’s family physician written several years after the material events. It refers to examinations of the applicant by the physician. The notes and records related to these examinations are producible. It is not clear from the respondents’ submissions how extensive production is required. Reference is made to employment records, for example. It is not clear to me why the production of employment records is relevant at this stage.

30I am satisfied that the respondents are entitled to production of contemporaneous medical records of any injuries allegedly received on the night of July 20/21, 2006. This would include the clinical notes and records of any visits to her family physician, Whitby Medical, and any other physician or health professional she visited in respect of alleged injuries sustained on July 20/21, 2006. At a minimum, this would include all records of any visits to a health care professional which refer to physical injuries to her arms, wrists or head, such as those described in the Whitby Medical documents in July and August 2006. The applicant should make best efforts to produce these contemporaneous medical records forthwith or at the latest 7 days prior to the next scheduled day of hearing.

31If any party requires further production in relation to these documents they may deliver and file a Request for further production within 7 days of the date of this Decision. In the interests of time the parties are directed to first attempt to resolve any outstanding issues themselves before seeking the Tribunal’s intervention.

32I am seized of this case.