Court File and Parties

COURT FILE NO.: CV-1000412247-0000 DATE: 20161014 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

RORY PATRICK SHEEHAN Plaintiff – and – SNELL, BALKA, SAAD BARRISTERS AND SOLICITORS, GREGORY CARTER, THE COLLEGE OF PSYCHOLOGISTS OF ONTARIO, CHRISTOPHER MONTGOMERY AND KATHY L. LEE SANG Defendants

Counsel: George B. Callahan and Trent Morris, for the Plaintiff Lisa E. Hamilton, for the Defendant Gregory Carter

HEARD: July 6, 2016

REASONS FOR JUDGMENT

JUSTICE W. MATHESON

[1] This is a motion for summary judgment brought by the defendant Gregory Carter, seeking an order dismissing this action as against him. The claim against Mr. Carter relates to a report that he prepared at the request of counsel to the plaintiff Rory Sheehan’s now ex-wife for use in the Sheehan’s family law proceedings. The plaintiff has also sued his now former family law lawyers, Snell, Balka, Saad Barristers and Solicitors. The claims against the other defendants, specifically the College of Psychologists of Ontario, Christopher Montgomery and Kathy L. Lee Sang, have been dismissed.

[2] This motion is grounded primarily on the defence of expert witness immunity. It succeeds on that defence.

Events giving rise to dispute

[3] In 2008, family law proceedings were underway in the Superior Court of Justice, Family Division between the plaintiff and his then wife, Sandra Sheehan. In relation to those proceedings, a report had been obtained from a Psychologist, Dr. Jon Mills, under s. 30 the Children’s Law Reform Act, R.S.O. 1990, c. C.12. The Mills report, dated July 8, 2008 and entitled “Psychological Assessment Report,” was a custody and access assessment in relation to this couple’s two young children (then aged five and seven). Dr. Mills diagnosed Ms. Sheehan with borderline personality disorder and concluded that the plaintiff should have sole custody of the children.

[4] At that time, Mr. Carter was a registered member of the College of Psychologists of Ontario holding the designation of Psychological Associate. A Psychological Associate is “an autonomous provider of psychological services at the Masters level.” Mr. Carter had obtained a Master’s degree in Applied Psychology from the University of Toronto. Mr. Carter had applied to register as a Psychologist, but his doctoral program was found insufficient for that registration status. It was not from a recognized university.

[5] Although permitted to provide certain services, Psychological Associates were not permitted to “communicate a psychological diagnosis” except if under supervision.

[6] Mr. Carter was retained by Ms. Sheehan’s counsel to critique the Mills report. At that time, Mr. Carter used the title “Dr.” The College of Psychologists of Ontario did not restrict use of that title at the time. The College changed its rules in 2009.

[7] In order to address the Mills report, counsel to Ms. Sheehan requested Dr. Mills’ clinical notes, files and test data. Dr. Mills declined. However, in later correspondence he indicated that he would produce his material to a registered Psychologist or pursuant to a court order. A motion was brought for a court order to produce Dr. Mills’ records.

[8] Mr. Carter’s retainer was drawn to the attention of the plaintiff and plaintiff’s counsel before that motion was heard. By email dated August 7, 2008, the plaintiff then wrote to his own counsel, Ms. Saad, asking for information about Mr. Carter’s credentials, among other things. Ms. Saad replied that she would contact Mr. Carter and had already requested his curriculum vitae (CV). Ms. Saad and Mr. Carter had a conversation that was reported to the plaintiff that did not address credentials. The CV was also provided.

[9] The motion to produce Dr. Mills’ notes and records was heard on August 14, 2008 by Justice Maddalena. During the hearing, Justice Maddalena asked if the notes and records were to be provided to “Dr. Carter”, calling him a “Psychologist”. Plaintiff’s family law counsel, in response to a question from the judge, confirmed that he was a Psychologist.

[10] The records were ordered produced. Mr. Carter prepared a report dated September 10, 2008. Beside his signature, he included his designation of Psychological Associate.

[11] Mr. Carter agreed with some aspects of Dr. Mills’ methodology and findings but disagreed with others. He recommended that the status quo be maintained, under which the parents were splitting the time with the children.

[12] Ms. Sheehan’s counsel forwarded the Carter report to counsel to the plaintiff. The report was, in turn, forwarded to Dr. Mills.

[13] By letter dated September 15, 2008, Dr. Mills wrote directly to Mr. Sheehan in response to the Carter report. He said he was shocked to see that Mr. Carter was a Psychological Associate, not a Psychologist. Dr. Mills recited in detail the information he obtained about Mr. Carter and the limitations on his practice, obtained from both public information available on the College website and through his direct inquiries of the College. He wrote that Mr. Carter’s opinions were illegitimate.

[14] The next day, the plaintiff swore an affidavit that was filed in his family law proceedings. In the affidavit, he specifically addressed the Carter report. He recounted steps he had taken to research Mr. Carter’s background. He indicated that he learned that Mr. Carter was not a Psychologist through internet searches. He noted the limitations on Mr. Carter’s practice. He attached Dr. Mills’ letter about Mr. Carter from the previous day. He attached both the Mills CV and the Carter CV.

[15] The issue about Mr. Carter’s qualifications was conveyed to him, giving rise to a letter from Mr. Carter dated September 17, 2008 to Ms. Sheehan’s counsel. In that letter, Mr. Carter described his registration as a Psychologist Associate, including the limitation that he was not able to communicate a diagnosis unless under supervision. He expressed his view that the report was within his scope of practice since it did not offer an alternative diagnosis but questioned how the available information had led to the diagnosis made by Dr. Mills. He enclosed his CV.

[16] Mr. Carter sent a second letter on September 17, 2008, after he had seen Dr. Mills’ letter, the first reply having been based on a verbal summary from his assistant. He disagreed with a number of the statements in Dr. Mills’ letter and with the language used by him.

[17] Mr. Sheehan had brought a motion seeking a temporary order that the children be in his primary care, based on the Mills report. Ms. Sheehan had brought a cross-motion seeking a temporary order that the children be in her care, except for designated parenting time with their father. These motions were heard by Justice Sosna.

[18] Both the Mills and Carter reports were filed with the court in relation to the motion and cross-motion regarding interim access, along with other evidence. The other evidence included the above affidavit of the plaintiff and the Mills letter regarding Mr. Carter’s credentials, or lack thereof, as well as the two letters from Mr. Carter.

[19] Legal counsel for both Mr. and Ms. Sheehan made submissions at the hearing. There is no transcript of the hearing, but Justice Sosna rendered lengthy oral reasons for decision.

[20] Justice Sosna rendered his decision on October 16, 2008. On the subject of temporary custody, he indicated that he had considered all of the evidence and assessed both reports. Based on the parties’ positions, he described this as “a high conflict separation.” He spoke about the consequences of a war between parents being most hurtful to the children.

[21] Justice Sosna noted that he had the discretion to accept some, none, or all of these reports. He then addressed Dr. Mills’ report at length.

[22] Justice Sosna expressed significant concerns about Dr. Mills’ report, finding that the language used by Dr. Mills was “over-the-top” and finding that Dr. Mills exceeded his role as a clinician. Justice Sosna found that Dr. Mills’ report lacked the balance and objectivity necessary for a clinical report. He noted that he found no objective evidentiary basis for many of Dr. Mills’ conclusions, which were very derogatory to Ms. Sheehan. Justice Sosna indicated that he placed little reliance on the Mills report. In the end, he accepted it only for the proposition that the children were victims of a high conflict situation.

[23] Justice Sosna expressed even more significant concerns about the evidence regarding the plaintiff’s conduct with his children. He found that the plaintiff was manipulative and that he had coached his children to make statements in order to estrange them from their mother. The plaintiff put his children on the couch and had them recite mantra denigrating their mother. Justice Sosna found this conduct egregious. He made further adverse findings about the conduct of the plaintiff, including with respect to the breach of prior court orders, and was also critical of Ms. Sheehan.

[24] Justice Sosna said little about the Carter report. He said he had reviewed it. He said as follows:

I do not have to spend much time on that critique. Carter disagrees with the diagnosis and conclusions of Jon Mills and there is sound clinical basis for his disagreement. For the record, I need not recite it. It is there. He is also concerned about the intemperate language of Dr. Mills. Again, may I make it clear on the record, apart from Dr. Mills’ report, on which I place some reliance, the conduct of Mr. Sheehan alone is reprehensible in poisoning these children’s minds. It is not acceptable.

I have considered all of this evidence and under the circumstances, I will grant the mother’s motion. There will be some amendments. [Emphasis added.]

[25] Thus, Justice Sosna did not accept the recommendation of either Dr. Mills or Mr. Carter. He did not maintain the status quo, as recommended by Mr. Carter.

[26] The plaintiff did not appeal the decision of Justice Sosna.

[27] The order made by Justice Sosna was a temporary order. A final order was made in December of 2010, more than two years later. The final order granted the parents joint custody of their children. The final order was on consent.

[28] The plaintiff attests that he has since moved to change the final custody and access order. He has not provided those motion materials. He attests that there have been delays with respect to his motion to change, and further conflict between him and his now ex-wife with respect to their children.

[29] This action was commenced in October 2010, but not pressed forward by the plaintiff. While the defendants conducted the examination for discovery of the plaintiff in mid-2014, the plaintiff has not proceeded to do an examination for discovery of Mr. Carter.

[30] Two motions for summary judgment were originally brought: this motion and a motion on behalf of the defendant law firm. However, the law firm withdrew its motion after delivery of an expert report regarding the standard of care from Harold Niman. The defendant law firm has also delivered a supporting expert report, from Thomas Dart.

Related events

[31] In December 2008, Mr. Sheehan made a complaint to the College of Psychologists of Ontario. Mr. Carter replied to that complaint, and later wrote to both Mr. and Ms. Sheehan’s counsel on the subject of his registration status, seeking to clarify any confusion. Ultimately, in response to the College proceedings, Mr. Carter retired from membership in the College and undertook never to resume practice.

[32] In 2009, the College took steps to clarify its standards. The College implemented a new restriction that only members who had been registered as a Psychologist could use the title “Dr.” in the course of providing psychological services.

[33] The plaintiff also participated in proceedings arising from fraud charges against Mr. Carter in the Ontario Court of Justice, which came to trial in 2011. The charges related to the use of the term “Dr.” in conjunction with Mr. Carter’s practice of psychology. The plaintiff was one of five complainants. All the charges were dismissed on motions for non-suit. For the purpose of the non-suit motion regarding the plaintiff’s complaint, in accordance with the applicable law, the judge assumed all allegations made by the plaintiff would be believed. The judge was critical of statements made by Mr. Carter regarding his doctoral degree in his September 17, 2008 correspondence. However, the judge concluded that there was no causal connection to any deprivation sufficient for a finding of fraud. The charges were dismissed.

Expert evidence

[34] The plaintiff has tendered an expert report from Dr. Ian Nicholson. Dr. Nicholson opines that Mr. Carter was qualified to undertake certain steps referenced in his report, but did not meet the applicable standard of care in other aspects of his report. He concluded that, taken as a whole, the report did communicate a diagnosis, which was outside of Mr. Carter’s permitted practice.

[35] The plaintiff has also included a report by an Ontario lawyer. The lawyer put forward legal principles and applied them to assumed facts, concluding that Mr. Carter exceeded his scope of permitted practice. As discussed in oral argument, this report falls afoul of the legal principle that expert evidence is not admissible on domestic law. In addition, the facts upon which this witness bases his opinion have not been fully proved on this motion.

[36] The reports of Messrs. Dart and Niman were also filed on this motion. They opine on the standard of care expected of the plaintiff’s former family law counsel. They each refer to facts not in the record before me. They each refer to the submissions that were made to Justice Sosna by the plaintiff’s former family law counsel about the issue of Mr. Carter’s credentials. These reports do not purport to advance opinion evidence about what was expected of Mr. Carter.

Analysis

[37] Under subrule 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, summary judgment shall be granted if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence. Under subrule 20.04(3), a defendant may move for summary judgment with supporting affidavit material or other evidence. To defeat the use of Rule 20, the responding party must show that there is a genuine issue that requires a trial.

[38] As set out in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49, there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits using the summary judgment process. This will be the case when the process: “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”

[39] On a motion for summary judgment, the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before him or her without using the fact-finding powers in subrule 20.04(2.1). If there appears to be a genuine issue requiring a trial, the motion judge may, at his or her discretion: (1) weigh the evidence, (2) evaluate the credibility of a deponent, or (3) draw any reasonable inference from the evidence unless it is in the “interest of justice” for these powers to be exercised only at trial: Hryniak, at para. 66. The proportionality principle means that “the best forum for resolving a dispute is not always that with the most painstaking procedure”: Hryniak, at para. 28.

[40] The responding party may not rely on the prospect of additional evidence that may be tendered at trial; he must put his evidence forward now: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 26, aff’d 2014 ONCA 878, leave to appeal to SCC refused, [2015] S.C.C.A. No. 97.

[41] If a trial is necessary for some of the claims in any event, it may not be in the interest of justice to use the fact-finding powers in Rule 20 to grant summary judgment because of the risk of duplicative proceedings or inconsistent findings of fact: Hryniak, at para. 60; Canaccord Genuity Corp. v. Pilot, 2015 ONCA 716, 340 O.A.C. 359, at para. 31; Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, at paras 44-45. On the other hand, the most proportionate, timely and cost-effective approach may be to grant summary judgment: Hryniak, at paras. 60, 66 and 68. The crux of the issue is whether or not the judge is able to reach a fair and just determination on the merits using the summary judgment process.

[42] In this case, the moving party puts forward two bases upon which the action against him should be dismissed on this motion for summary judgment: (1) expert witness immunity; and, (2) no damage caused by this defendant.

Expert witness immunity

[43] The protection of the integrity of the judicial process requires that an expert witness be immune from civil suit by any person with whom his or her only relationship derives from the judicial proceeding: Varghese v. Landau (2004), 3 R.F.L. (6th) 204 (Ont. S.C.), at para. 48; Carnahan v. Coates (1990), 71 D.L.R. (4th) 464 (B.C.S.C.), at p. 474; Howatt v. Klassen (2005), 31 C.C.L.T. (3d) 54 (Ont. S.C.), at paras. 11 and 15, citing Fabian v. Margulies (1985), 53 O.R. (2d) 380 (Ont. C.A.).

[44] Immunity from suit extends not only to reports filed in court and oral evidence given in court, but also to activities outside of court related to a report or its preparation: Varghese v. Landau, at para. 49; Smith (next friend of). v. Kneier, 2001 ABQB 291, 288 A.R. 144, at para. 11, citing Evans v. London Hospital Medical College [1981], 1 All E.R. 715 (Q.B.).

[45] The protection is absolute. Even allegations of bad faith are insufficient to remove the application of the immunity doctrine: Howatt v. Klassen, at paras. 11-13, citing Samuel Manu-Tech Inc. v. Redipac Recycling Corp. (1999), 124 O.A.C. 125 (C.A.).

[46] One of the justifications for immunity is the protection of the court process, which seeks to discourage relitigation of issues: Smith (next friend of). v. Kneier, at para. 14. This is especially important in the family law context, which is already fraught with conflict. In the family law context, attempts to sue expert witnesses have been dismissed or struck out at early stages because of immunity: e.g. Van de Vrande v. Butkowsky, 2010 ONCA 230, 99 O.R. (3d) 648; Carnahan v. Coates; Howatt v. Klassen; Varghese v. Landau; Smith (next friend of) v. Kneier.

[47] The undisputed facts before me show that Mr. Carter was retained to act as an expert witness in the family law proceedings between the now divorced Mr. and Mrs. Sheehan and, more specifically, to provide a critique of Dr. Mills’ report. He had no other relationship with those parties. It is his conduct as an expert in the family law proceedings that forms the basis of the plaintiff’s claim against him.

[48] The undisputed facts before me further show that Mr. Carter prepared a report for use in the court proceedings. That report was filed with the court. On the motion before me, plaintiff’s counsel submitted that the plaintiff’s claim against Mr. Carter was not about what was said in the report. The report is protected by expert witness immunity.

[49] Mr. Carter’s CV was also filed with the court. I note that his status as a Psychological Associate was accurately described in both his CV and in his report.

[50] The plaintiff has acknowledged that Mr. Carter’s role was to provide expert opinion evidence to the court. The plaintiff submits, however, that Mr. Carter’s out-of-court statements about his qualifications are not necessarily protected by immunity and there ought to be a full trial in that regard. The plaintiff relies on what Mr. Carter did and did not say about his credentials out of court. He submits that Mr. Carter ought to have volunteered that his credentials did not extend to making a diagnosis rather than just addressing it when the issue was raised by Dr. Mills. The plaintiff especially relies on the letters sent by Mr. Carter in response to Dr. Mills’ indictment of Mr. Carter’s credentials.

[51] The issue about Mr. Carter’s credentials was put before the court. All of the letters (both by Dr. Mills and Mr. Carter) were filed with the court for the motions decided by Justice Sosna. Even if Mr. Carter’s letters had not been filed with the court, they were fundamentally linked to his role as an expert witness in those proceedings. He was responding to issues raised by Dr. Mills.

[52] The question of any expert witness’s qualifications is a core component of an expert’s evidence. The adequacy and accuracy of expert witness qualifications are often challenged as part of the court process. In the case of Mr. Carter, the challenge to his qualifications was identified by both Dr. Mills and the plaintiff and formed part of the evidence filed with the court. The out-of-court statements were in correspondence that was directly relevant to that report, which was filed with the court for the upcoming hearing.

[53] I have not been provided with a case with facts precisely the same as this one. However, based on the undisputed facts before me, the claim against Mr. Carter falls within the scope of expert witness immunity under the principles set out in settled authorities. The immunity covers activities out of court in relation to a report filed with the court. There is a “clear and direct” link between the out-of-court statements made by Mr. Carter and the pending family law judicial proceedings: Elliott v. Insurance Crime Prevention Bureau, 2005 NSCA 115, 236 N.S.R. (2d) 104, at para. 147.

[54] The plaintiff submits that this case falls outside settled authority. Even if that were so, it meets the necessity requirement for an extension of the immunity: Elliott v. Insurance Crime Prevention Bureau, at paras. 102 and 106. If out-of-court statements about qualifications arising directly from an expert report were excluded from expert immunity, the immunity would be substantially undermined. An extension of the immunity would be necessary to make the protection of testimony effective.

[55] The plaintiff also submits that in one of Mr. Carter’s two letters, he deliberately made a false statement about his doctoral degree and his dealings with the College of Psychologists in that regard. The plaintiff also submits that there was deliberate concealment. Assuming this was the case for the purposes of this motion, immunity still applies. As put in Samuel Manu Tech, at para. 19, adopting a passage from Halsbury’s Laws of England, Fourth Edition Reissue, 1997, Vol. 28, at para. 97: “The evidence of all witnesses or parties speaking with reference to the matter before the court is privileged, whether oral or written, relevant or irrelevant, malicious or not.” An expert may have to answer to his or her professional regulator, as occurred here, but he or she is immune from civil suit by an adverse party.

[56] Plaintiff’s counsel also submitted that there was a triable issue regarding the effect of the statements made in the letters and the Carter report on the outcome of the motion heard by Justice Sosna and later proceedings. A trial is not needed to interpret Justice Sosna’s decision. It is there for all to read and interpret as may be appropriate. However, this submission highlights the problems in permitting a civil claim against a witness. Essentially, the plaintiff seeks to relitigate his family law proceedings in this civil lawsuit against a witness in those proceedings. This sort of collateral attack should be discouraged.

[57] Other arguments were advanced by the plaintiff based on the summary judgment process. The plaintiff’s submissions refer generally to issues of credibility, but there are no credibility issues that must be decided on the facts relevant to the immunity defence. The plaintiff also submits that the moving party put forward inadequate evidence by relying on a lawyer’s affidavit. However, that affidavit dealt with subject matters appropriate for a lawyer’s affidavit, such as steps taken in the legal proceedings and related documentation: contra Cvetkovic v. Gupta, 2016 ONSC 2322, at para. 41. To the extent that the affidavit contained some argument, I have ignored it.

[58] Mr. Sheehan’s evidence is itself problematic. His affidavit includes statements that are not supported by facts presented on this motion, and also contains considerable argument. This weakness is continued in his factum, which includes a number of statements that, on close examination, are not supported on the factual record before me. I have focused on the matters that are supported by evidence.

[59] None of these frailties give rise to credibility issues that must be decided to determine the merits of the immunity defence.

[60] The plaintiff also submits that the evidence was inadequate because Mr. Carter did not swear an affidavit on this motion. This submission must be considered within the context of this motion. Here, the defence of expert witness immunity is relied upon. It ought to be possible to bring forward a defence of witness immunity without necessarily becoming a witness on the motion. In this case, the relevant evidence relates mainly to Mr. Carter’s role, his report and the course of the related proceedings. Further, the dispute about credentials is well-documented.

[61] In addition, the plaintiff, represented by counsel, had ample opportunity to obtain Mr. Carter’s evidence if it was needed to respond to this motion. This action was commenced in 2010. The plaintiff has had a long time within which he could have conducted an examination for discovery if he was intent on proceeding with his claim. A Rule 39.03 examination was also available on the summary judgment motion and was not pursued. In the circumstances of this case, I do not find this objection, or any adverse inference that the plaintiff asks that I draw because of it, defeats this motion.

[62] The expert evidence regarding standard of care need not be addressed given that expert immunity applies.

[63] I have also considered whether this issue should be decided now given that the case against the law firm will still proceed. The solicitor’s negligence claim gives rise to different issues and does not give rise to a fairness problem. The principles underlying witness immunity also favour early disposition. It is efficient to address that defence now.

[64] The defence of expert witness immunity can fairly and justly be decided without a trial in this case. The burden is on Mr. Carter to demonstrate that the claim against him falls within the immunity defence and he has done so.

Causation/damages

[65] There is little evidence before me to support a damages claim by the plaintiff. The court order made by Justice Sosna does not appear to turn on Mr. Carter’s report. It was not appealed. It was, in any event, a temporary order only and the final order was on consent. There are therefore serious causation issues facing the plaintiff. On the quantification of damages, there is some reference to costs orders forming part of a damages claim. This gives rise to a concern that this civil action ought not to be used to collaterally attack those orders. The plaintiff’s factum also refers generally to claiming the costs of five years of litigation in the family law proceedings, without supporting evidence. There are therefore also damages issues facing the plaintiff. However, given that immunity applies, there is no need to make a ruling on these issues on this motion.

Conclusion

[66] This action, as against Mr. Carter, is therefore dismissed. If the parties are unable to agree on costs, the moving party shall make his costs submissions by delivering brief written submissions together with a costs outline by October 28, 2016. The plaintiff may respond by delivering brief written submissions by November 14, 2016.

Justice W. Matheson

Released: October 14, 2016

COURT FILE NO.: CV-1000412247-0000 DATE: 20161014 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: RORY PATRICK SHEEHAN Plaintiff – and – SNELL, BALKA, SAAD BARRISTERS AND SOLICITORS, GREGORY CARTER, THE ONTARIO COLLEGE OF PSYCHOLOGISTS, CHRISTOPHER MONTGOMERY AND KATHY L. LEE SANG Defendants REASONS FOR JUDGMENT Justice W. Matheson Released: October 14 2016