COURT FILE AND PARTIES

COURT FILE NO.: CV-08-00358589

DATE: 20140527

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Faiza Khelifa, Plaintiff

AND:

Ontario Corporation Number 1358584 operating as Gloucester-Church Mansions Limited; Ontario Corporation Number 479405 operating as Sunrise Property Management Limited, Defendants

BEFORE: Madam Justice Darla A. Wilson

COUNSEL:
Jeremy Solomon & S. Marcushamer, Counsel for the Plaintiff

Greg A. Abogado & Asher Honickman, Counsel for the Defendants

HEARD: May 21, 2014

Ruling

[1] In this action, the Plaintiff sues for damages arising from an incident that occurred February 16, 2007 on the fire escape of her apartment building located at 592 Church St. in Toronto. The matter commenced trial May 12, 2014 in front of me. Both liability and damages are in dispute.

[2] On May 21, 2014, the Plaintiff sought to have the neuro-psychiatrist Dr. Feinstein qualified as an expert. The defence did not dispute that Dr. Feinstein ought to be qualified as an expert in the area of psychiatry and more particularly, in the specialized field of neuro-psychiatry. The dispute arose on the issue of whether Dr. Feinstein ought to be allowed to express an opinion on the mechanism of what caused the Plaintiff’s head injury. Furthermore, the defence objected to the introduction of an animated video depicting a fall down steps and what occurs to a person’s brain when a coup-contrecoup injury is sustained. Prior to Dr. Feinstein’s testimony, I heard lengthy submissions on these issues and I ruled that Dr. Feinstein would not be qualified to opine on the mechanism of injury nor would the introduction of the animated video be admitted as demonstrative evidence. The following are my reasons for my rulings.

BACKGROUND

[3] The Plaintiff testified that on February 16, 2007 she went out on the fire escape on the third floor of the apartment building where she was living at 592 Church St. She alleges the landing of the fire escape was covered with snow and ice and as she turned to go back inside, she slipped and fell, somersaulting down the steps to the second level. At that point, her feet went into the opening on the second level platform and she fell feet first through the hole, landing on the ground. She then lost consciousness. There were no witnesses to the fall.

[4] The Defendants dispute there was snow and/or ice accumulation on the fire escape and they do not accept that the Plaintiff fell. Rather, they argue that the Plaintiff fell or jumped from the third floor landing onto the ground, perhaps in an unsuccessful suicide attempt. Each side has retained engineers to testify at trial on the circumstances of the fall.

[5] It is conceded that the Plaintiff suffered serious orthopedic injuries in this incident, including a burst fracture at L3 and 2 fractured ankles. It is not disputed the Plaintiff had a laceration on the left occiput of her head.

[6] Dr. Feinstein is a psychiatrist and is the director of the Neuropsychiatry Programme at Sunnybrook Health Sciences Centre and is in charge of the Mild to Moderate Traumatic Brain Injury Clinic. Sunnybrook is a major centre for trauma, the largest one in Ontario.

[7] Dr. Feinstein was retained by the solicitor for the Plaintiff in 2009 to conduct an assessment of the Plaintiff and to provide an opinion for use at trial of the nature and extent of the injuries she sustained from a neuro-psychiatric perspective. He assessed the Plaintiff on November 3, 2009 and delivered a report on that date in which he stated Ms. Khelifa suffers from three psychiatric disorders: major depression; posttraumatic stress disorder; and post-concussion disorder following a traumatic brain injury. He is of the opinion that the first 2 disorders predate the fall but the post-concussion disorder arose directly as a result of it.

[8] Dr. Feinstein was provided with further medical documentation and delivered another brief report dated July 22, 2011. On January 23, 2012, Dr. Feinstein sent another report in which he commented on the defence expert reports. On November 20, 2013, Dr. Feinstein authored a further report commenting on the defence vocational assessment. On February 10, 2014, Dr. Feinstein did another assessment of the Plaintiff and authored another report in which he opines that the Plaintiff’s major depressive disorder appears to be in remission, there is improvement in her post-traumatic stress disorder, her post-concussion syndrome continues and finally, that she has a somatic symptom disorder with predominant pain. In this report, Dr. Feinstein goes on to offer his opinion on the prognosis of the Plaintiff, her treatment and the effects of the various impairments he has identified. No objection is taken to Dr. Feinstein testifying based on the contents of these four reports.

[9] I turn now to the disputed report. Dr. Feinstein provided a one paragraph report dated April 29, 2014 which reads, “The occipital laceration acquired by Ms. Khelifa is consistent with the back of her head striking an edge. An injury such as this is less likely to have arisen from blunt force such as might occur after falling from a height. In addition, the occipital blow likely led to a coup-contrecoup type brain injury.”

[10] The Plaintiff argues that Dr. Feinstein is uniquely well situated to assist the court in understanding the mechanism of the injury from his vast experience dealing with head injuries arising from trauma. Furthermore, the DVD that has been prepared as an aid will be of great help to the court in comprehending what occurs when the brain is subject to force, the coup-contrecoup motion.

[11] The Defence submits that Dr. Feinstein ought not to be permitted to offer the opinion set out in the April 29, 2014 report as it approaches the ultimate issue the court must decide: how the Plaintiff sustained the injury to her head on February 16, 2007. While Dr. Feinstein is qualified to offer an expert opinion, it is not within his domain to comment on the type of object that she struck causing the laceration to the occipital region of her head. His opinion on this point is of no probative value, it is submitted. Finally, the DVD is not properly admissible in evidence as it is not based on any facts elicited during this trial, it is simply hypothetical and thus, fundamentally offends the purpose of demonstrative evidence.

ANALYSIS

[12] The role of an expert at trial is of critical importance and the 2010 amendments to Rule 53 underscore the requirement that the expert be properly qualified to offer opinion evidence and that the opinion be clearly set out in a written report served within the time limits specified. It is the judge’s role to ensure that only properly qualified experts are entitled to offer opinion evidence and that the subject matter is one that requires expert opinion.

[13] As I noted in Gutbir v. University Health Network,[^1] “…there has been a shift towards increased scrutiny of the validity and usefulness of expert testimony in trials. This was made very clear by Commissioner Stephen Goudge’s Report entitled “Inquiry into Pediatric Pathology in Ontario”, commonly known as the “Goudge Report” which was released in 2008. In that report, Justice Goudge reaffirmed the role of the trial judge as a gatekeeper who is required to rule on the admissibility of an expert opinion and not allow the evidence in, indicating that it would be accorded its proper weight at the end of the day.

The role of the trial judge as gatekeeper is not a new phenomenon. More than 10 years ago in R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, Justice Binnie stated:

…the court has emphasized that the trial judge should take seriously the role of gatekeeper. The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties can go at the end of the day to weight rather than admissibility…

In a more recent case, Dulong v. Merrill Lynch Canada Inc. (2006), 2006 9146 (ON SC), 80 O.R.(3d) 378 (S.C.J.), Justice Ducharme reviewed the four criteria established in R. v. Mohan (1994), 1994 80 (SCC), 114 D.L.R.(4th) 419 (S.C.C.) for the admissibility of expert testimony and in doing so, stated:

There is no question that, in civil cases, at least, the path of least resistance in matters such as these seems to be to admit the evidence and then compensate for any of its weaknesses by attaching less weight to the opinion. But such an approach is an abdication of the proper function of the trial judge and was explicitly rejected by Binnie, J in R. v. J-L.J...

[14] I decline to take the route of admitting the evidence on the basis that the “proper” weight can be attributed to it and the jury instructed in this regard. Rather, in my view, the correct and preferable approach is to consider the proffered evidence and make the determination at the present time as to the admissibility of the expert testimony.

[15] At the outset, I wish to deal with the timing of the delivery of the last report of Dr. Feinstein, although this was not raised in argument by the defence. Rule 53.03 requires responding expert reports to be served not less than 60 days before the pre-trial. In this case, the pre-trial was held in early April and the trial was set for May 12, 2014, a date that was set more than 18 months prior on a consent basis. No particular reason was offered by the solicitor for the Plaintiff for the late delivery of this last report of Dr. Feinstein. Perhaps this opinion was solicited in order to respond to the defence engineering reports of Robert Shirer and Kodsi Engineering which were served in November, 2013 and offered opinions on the mechanism of injury. Even if this were the case, the report was woefully late and contains a new opinion that had not been advanced previously.

[16] The amendments to the rules governing the time for service of expert reports were enacted to ensure that the expert evidence at trial on specific issues would be available at an earlier stage of the litigation than had been occurring. By the time counsel attend at a pre-trial conference before a judge, all of the expert reports on which reliance is placed at trial should be available so a meaningful pre-trial can be held. This last report from Dr. Feinstein was not available at the pre-trial in the case before me.

[17] This is not a situation where documentation was obtained late in the day necessitating the late delivery of an expert’s updated report. Rather, counsel could have sought Dr. Feinstein’s opinion on the mechanism of injury at the time of his retainer in 2009, since all of the documentation he needed was available to him for review: the ambulance call report; the hospital records from St. Michael’s and St. John’s and the notes of the various treating doctors of Ms. Khelifa. It is not clear to me why Dr. Feinstein’s opinion on this issue was not secured until 2 weeks prior to the trial of this action.

[18] In my view, because of the late service of the report of Dr. Feinstein I am not prepared to allow him to testify. It is unfair to opposing counsel who have prepared their case on the basis of the expert opinions served in accordance with the provisions of the rules. To allow Dr. Feinstein to opine on the mechanism of injury would be prejudicial to the defence in the middle of trial. It would require the defence to answer this new opinion from Dr. Feinstein through the delivery of at least one responding expert report. Furthermore, it is unnecessary because this particular issue will be the subject of expert testimony from the engineer retained by the Plaintiff.

[19] Even if the report of Dr. Feinstein had been served within the time requirements set out in the rules, I still would not allow him to testify on the issue of mechanism of injury nor would I allow him to make reference to the DVD depicting a coup-contrecoup type of injury. As I have indicated earlier in these reasons, liability is hotly contested in this action. Both sides have retained engineers to offer expert opinion based on their analysis of the circumstances of the fall and whether or not the Plaintiff fell down the stairs of the fire escape and through the open hole to the ground or whether she jumped from the third floor or by some other means. The solicitor for the Plaintiff wishes to elicit the opinion of Dr. Feinstein on whether the injuries sustained by Ms. Khelifa are more consistent with the fall or with the jump theory. It is submitted by the Plaintiff that because of his experience dealing with trauma at Sunnybrook, Dr. Feinstein meets the R. v. Mohan[^2] criteria and can be of some assistance to the court in dealing with this issue.

[20] While I accept that Dr. Feinstein is eminently qualified as a neuro-psychiatrist and undoubtedly has vast experience in treating patients who have sustained some form of trauma resulting in a head injury that does not, in my view, entitle him to express an opinion to this court on the type of fall that most likely produced the Plaintiff’s injuries. His opinion is not based on any scientific data or studies that have been done; or at least, the basis for his opinion is certainly not set out in his written report. It seems his view is offered based on his experience as a trauma doctor. While I have no difficulty accepting that Dr. Feinstein has a wealth of knowledge arising from his work with injured people who appear in the emergency room of a trauma centre from a medical and treatment perspective, that does not entitle him to offer an opinion to this court on how the injury was sustained. He is not a liability witness; he was qualified as an expert to opine on the damages issue.

[21] It seems to me the best Dr. Feinstein can do is to offer the court an “educated guess” as to how the Plaintiff sustained her injuries and this opinion would have to come from his own experience as a doctor in an emergency room dealing with traumas. Clearly, there are others who are better qualified to assist the court on this issue: engineers who have attended at the scene, taken measurements, analyzed the documentation and other evidence and formed an opinion based on their skill and expertise as to how the Plaintiff sustained her injuries.

[22] While it is tempting to accept the submission that as long as an expert has “some” assistance to offer the court, that is sufficient to justify his or her opinion on an issue, I reject this approach. Rather, I agree it is the trial judge’s function to scrutinize the expert’s qualifications and the opinion expressed in a Rule 53 compliant report and determine if, in all of the circumstances, that expert ought to be allowed to provide an expert opinion. The days of allowing an expert to opine on a point and deeming that the persuasiveness of that opinion will go to weight are in the past. Counsel need to determine which expert has the requisite background and experience to comment on an issue and secure a report from that individual; there is no need to then attempt to buttress that opinion from another less qualified expert.

[23] Furthermore, the concern raised by the defence that in allowing Dr. Feinstein to testify on the mechanism of injury there is a possibility that in doing so he would usurp the function of the trial judge is a legitimate one. As I have indicated, the issue of liability is hotly disputed in this trial. One of the determinations that must be made is how the Plaintiff fell from the fire escape. The solicitor for the Plaintiff wishes Dr. Feinstein to testify on the issue of whether the injuries sustained are more consistent with a fall from a height or a tumble down stairs. This, it seems to me, comes very close to taking over one of my functions as trial judge. In these particular circumstances, as stated in R. v. Mohan, supra, the court must apply very strictly the criteria of relevance and necessity to the expert opinion sought to be introduced. On both of these criteria, there is no justification for allowing Dr. Feinstein to opine. Certainly, his opinion is not necessary because the engineer will testify on this area.

[24] Finally, because I have ruled that Dr. Feinstein will not be permitted to offer an opinion to this court on the mechanism of the Plaintiff’s fall, it seems superfluous to make a ruling on the use of the DVD. I have no difficulty allowing Dr. Feinstein to make reference to the coup-contrecoup type of brain injury he believes the Plaintiff sustained in the incident. This emanates from his first report where he makes the diagnosis that the Plaintiff has a post-concussion disorder as a result of striking her head. It is within his ambit of expertise to testify about the effects on the brain inside the Plaintiff’s skull when the impact occurred.

[25] The issue of the permitted use of a demonstrative aid usually comes before the court on an action that is tried with a jury. In deciding whether or not to admit into evidence items such as drawings or photographs, which I will loosely refer to as “demonstrative evidence”, one of the issues the Court must consider is the accuracy and probative value of the item sought to be introduced and whether it would be of assistance to the Court in understanding and assessing the evidence. As I noted in Gardner v. Hann,[^3] “I have concerns about the accuracy of the conceptual illustration given there is no photographic evidence to confirm how the Plaintiff’s face looked n the time immediately following the motor vehicle accident…The medical illustrations are of questionable reliability and I am not persuaded they are necessary in order to enable the jury to understand the Plaintiff’s injuries. The conceptual illustration will therefore not be used.”

[26] While I appreciate the Gardner v. Hann case, supra, was one that was tried with a jury, the underlying considerations were the same as in the case before me. The demonstrative video that the solicitor for the Plaintiff wishes to introduce through Dr. Feinstein includes a depiction of the Plaintiff tumbling down the fire escape stairs and striking the back of her head on a step. There is no independent evidence to corroborate the depictions that are contained in the video. It is not the function of demonstrative evidence to suggest one party’s theory of the case. It is to assist the trier of fact with the evidence. In the case before me, however, the demonstrative video is not based on any facts elicited in evidence in this case; rather, it is hypothetical only and this is not consistent with the intended use of demonstrative evidence. It will therefore not be permitted to be used at this trial.

D.A. WILSON J.

Date: May 27, 2014

[^1]: Gutbir v. University Health Network, 2010 ONSC 6394
[^2]: R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9
[^3]: Gardner v. Hann, 2011 ONSC 3356