COURT FILE NO.: CV-07-921-00

DATE: 2014 06 11

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Anne-Marie Gaudet and Matthew Gaudet, Plaintiffs

AND:

Tejinder Singh Grewal, Defendant

BEFORE: Ricchetti, J.

COUNSEL:
S. Gillis and A. Shah, Counsel, for the Plaintiffs

D. Martin, R. Mussalin, B. Nitchke, Counsel, for the Defendant

HEARD: June 4, 2014

PRE-TRIAL MOTION RULINGS

[1] The Defendant sought an order holding this trial down for a period of time until Mr. Elkin was available to attend. For reasons set out on the record, I discharged the jury selected on May 21, 2014, scheduled a new date for jury selection on June 9, 2014 and June 11, 2014 as the commencement of the trial, pre-emptory on the Defendant.

[2] There were three pre-trial rulings sought by the Plaintiffs. Two were settled by agreement between counsel at the hearing, which agreement was set out on the record at the hearing.

[3] There remained one further pre-trial motion with respect to the admissibility of certain medical documentation. I advised counsel I would provide my ruling (and reasons if possible) prior to the commencement of trial. These are those reasons.

The Motion

[4] The Plaintiffs seek a ruling on the admissibility of four categories of medical documentation:

i. the clinical notes and records of the late Dr. Michael Dennis, general practitioner and family doctor of the Plaintiffs under s. 35 and/or s. 52 of the Evidence Act;

ii. the reports of Dr. Anna Czok, physiatrist, and Dr. Christine Lay, neurologist under s. 52 of the Evidence Act;

iii. the reports of Dr. Yan Liu, rheumatologist, and Dr. S.W. McKenzie, neurologist, under s. 52 of the Evidence Act;

iv. the report of Chedoke Pain Medical Center ("Chedoke") under s. 52 of the Evidence Act; and

v. the clinical notes and record of Dr. Christine Lay under s. 35 of the Evidence Act.

The Record

[5] The Plaintiffs served and filed a motion record on May 13, 2014. The motion record contained the background and some of the medical documentation sought to be introduced at trial.

[6] The Defendant did not file any responding materials.

[7] The Defendant has not responded to the Plaintiff's Notices requesting that Doctors, Czok, Lay, Liu or McKenzie attend at trial for cross-examination.

[8] As a complete surprise, on June 9, 2014, during jury selection, the Defence provided a “Defence Witness List” which included the doctors (except Dr. Dennis) whose medical documentation was the subject of this Plaintiffs’ motion.

The Background

[9] This motor vehicle accident occurred on March 26, 2005. It is alleged that the Defendant's vehicle struck a motor vehicle, in which the Plaintiffs were passengers, from the rear. The Plaintiffs alleged that the Defendant was negligent, they suffered medical injuries and damages arising from the motor vehicle accident.

[10] The Statement of Claim was issued on March 21, 2007.

[11] Examination for discoveries took place in 2008.

[12] The action was set down for trial on December 1, 2008.

[13] The action was to be tried on January 2011. For reasons I need not go into here, but are set out in detail in my oral ruling regarding the Defence motion to delay the commencement of this trial, the action was not tried in the following few years.

Dr. Michael Dennis (family doctor)

[14] Dr. Dennis was the family doctor for the Plaintiffs from about 2002 until late 2013. As a result, Dr. Dennis was involved as the treating doctor for the Plaintiffs, prior to and after the motor vehicle accident.

[15] Dr. Dennis died in December 2013.

[16] During his treatment of Anne-Marie Gaudet, Dr. Dennis referred Anne-Marie Gaudet for consultations with other medical practitioners including Dr. Anna Czok, neurologist, Dr. S. McKenzie, rheumatologist, and Dr. Liu, physiotherapist.

[17] During his treatment of Matthew Gaudet, Dr. Dennis referred Mathew Gaudet for consultations with other medical practitioners including Dr. S. McKenzie, neurologist, Dr. Lay, neurologist, and Dr. Santosh Paikatt.

[18] On January 3, 2011 Dr. Dennis executed an Acknowledgement of Expert's Duty.

Dr. S. W. McKenzie (neurologist)

[19] Dr. McKenzie saw Anne-Marie Gaudet in 2005 at the request of Dr. Dennis. Dr. McKenzie reported his findings back to Dr. Dennis in his consultation report dated September 28, 2005.

[20] Dr. McKenzie saw Matthew Gaudet at the request of Dr. Dennis. Dr. McKenzie reported his findings back to Dr. Dennis in his consultation report dated July 12, 2006.

Dr. Yan Liu (rheumatologist)

[21] On May 6, 2014, Dr. Liu authored a letter which attached his assessment of Anne Marie Gaudet in 2007 at the request of Dr. Dennis. Attached is Dr. Liu's consultation report to Dr. Dennis dated April 5, 2007.

Dr. Anna Czok (physiatrist)

[22] On May 1, 2014 Dr. Czok authored a letter which attached her clinical notes and records in connection with her assessment and treatment of Ann-Marie Gaudet at the request of Dr. Dennis. The notes include Dr. Czok’s consultation report to Dr. Dennis dated June 29, 2006 and a CT scan report by Dr. James Walker.

[23] Dr. Czok executed an Acknowledgement of Expert's Duty dated May 2, 2014.

Dr. Lay

[24] On May 1, 2014 Dr. Lay authored a letter which attached her clinical notes and records in connection with her assessment and treatment of Matthew Gaudet at the request of Dr. Daune MacGregor, the Plaintiffs' medical legal expert. The medical documentation includes Dr. Lay's clinical note to Dr. Macgregor dated July 2, 2013.

[25] Dr. Lay executed an Acknowledgement of Expert's Duty dated May 5, 2014.

Chedoke Pain Medical Center

[26] Anne-Marie Gaudet attended at the Chedoke Pain Medical Center in 2007 for an assessment and, subsequently, a follow up consultation. Copies of the reports were sent to Dr. Dennis and Plaintiffs' counsel.

[27] The Assessment Report is dated August 3, 2007 and was authored by Gianna Knibbs, MSc. O.T. Reg. Occupational Therapist.

[28] The follow up Consultation Note is dated September 25, 2007. The second report was authored by Dr. Brian Krish, Medical Director.

Medical Legal Experts

[29] It is important to note that the Plaintiffs have also been seen by a number of medical legal experts who are expected to testify at the trial in particular in the area of physiatry, neurology and rheumatology. In particular, Anne-Marie Gaudet was seen by Dr. P. Watson a neurologist and Occupational Therapist, Toni Wall. Mathew Gaudet was seen by Dr. Daune MacGregor, neurologist.

[30] As permitted by law, these medical legal experts will be entitled to rely upon all the clinical records and notes, notwithstanding that they may be hearsay, including the medical documentation which is the subject of this motion.

Notice of Intention

[31] On April 4, 2014 the Plaintiffs served a Notice of Intention to introduce as evidence under s. 52 of the Evidence Act by calling the persons or filing their reports at trial. The Notice of Intention included reference to the introduction of:

i. Dr. S. McKenzie's note and consultation letter;

ii. Dr. A Czok's consultation letter;

iii. Dr. Y. Liu's consultation letter;

iv. Dr. C. Lay's clinical notes and records;

v. Dr. S. Dennis' clinical notes and records;

[32] The Notice of Intention also provided notice that the Plaintiffs could seek to introduce certain documents as business records under s. 35 of the Evidence Act. The Notice of Intention included reference to the introduction of:

i. Dr. S. Dennis' clinical notes and records;

ii. Dr. A Czok's consultation letter;

iii. Dr. S. McKenzie’s note and consultation letters;

iv. Dr. C. Lay's clinical notes and records;

[33] The Notice of Motion only sought to admit the medical documentation of Dr. Dennis and Dr. Lay under s. 35 of the Evidence Act.

[34] There is no issue that the required notices under the Evidence Act and the Rules of Civil Procedure were provided by the Plaintiffs to the Defence.

[35] No response was received to the Plaintiffs' Notice of Intention.

[36] No request was made by the Defendant to seek to have any of the doctors available for cross examination.

[37] Essentially, the Defence has done nothing since receiving the Notices.

The Statutory Provisions

[38] The following provisions of the Evidence Act are relevant to this motion:

s. 35. (1) In this section,

“business” includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise; (“enterprise”)

“record” includes any information that is recorded or stored by means of any device. (“document”)

(2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.

(emphasis added)

[39]

s. 52. (1) In this section,

“practitioner” means,

(a) a member of a College as defined in subsection 1 (1) of the Regulated Health Professions Act, 1991,

(b) a drugless practitioner registered under the Drugless Practitioners Act,

(c) a person licensed or registered to practise in another part of Canada under an Act that is similar to an Act referred to in clause (a) or (b).

(2) A report obtained by or prepared for a party to an action and signed by a practitioner and any other report of the practitioner that relates to the action are, with leave of the court and after at least ten days notice has been given to all other parties, admissible in evidence in the action.

(3) Unless otherwise ordered by the court, a party to an action is entitled, at the time that notice is given under subsection (2), to a copy of the report together with any other report of the practitioner that relates to the action.

(4) Except by leave of the judge presiding at the trial, a practitioner who signs a report with respect to a party shall not give evidence at the trial unless the report is given to all other parties in accordance with subsection (2).

(5) If a practitioner is required to give evidence in person in an action and the court is of the opinion that the evidence could have been produced as effectively by way of a report, the court may order the party that required the attendance of the practitioner to pay as costs therefor such sum as the court considers appropriate.

(emphasis added)

[40] The following portions of the Rules of Civil Procedure are relevant to this motion:

Rule 53.03 (1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference required under Rule 50, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).

(2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information:

1. The expert's name, address and area of expertise.

2. The expert's qualifications and employment and educational experiences in his or her area of expertise.

3. The instructions provided to the expert in relation to the proceeding.

4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.

5. The expert's opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert's own opinion within that range.

6. The expert's reasons for his or her opinion, including,

i. a description of the factual assumptions on which the opinion is based,

ii. a description of any research conducted by the expert that led him or her to form the opinion, and

iii. a list of every document, if any, relied on by the expert in forming the opinion.

7. An acknowledgement of expert's duty (Form 53) signed by the expert.

The Law

Medical Opinion Evidence

The Westerhof Decision (June 20, 2013)

[41] In Westerhof v. Gee (Estate), 2013 ONSC 2093 the Divisional Court dealt with the requirements of a medical doctor to comply with Rule 53.03, whether the doctor was a treating doctor or a medical legal expert retained by the parties for trial:

[21] The important distinction is not in the role or involvement of the witness, but in the type of evidence sought to be admitted. If it is opinion evidence, compliance with rule 53.03 is required; if it is factual evidence, it is not.

[22] Based on this distinction, it is not difficult to see that, where the expert has not been, qualified to give the opinions to be tendered or where the report relied on to advance the opinion does not comply with rule 53.03, it is correct for the trial judge to refuse to admit the evidence.

[23] There is more in Beasley v. Barrand, supra, that should be reviewed. It appears to distinguish witnesses who were engaged in treatment by noting that the three doctors whose reports were being considered were not involved in this way (see: paras. 64 and 65). This does not suggest that, if they had been treating physicians, the three doctors would have been free to offer opinions without concern for rule 53.03. Treating professionals do stand apart. They are present during the progress of any injury suffered by a plaintiff. They may give evidence as to their observations of the plaintiff and their description of the treatment provided. This is factual and not opinion evidence. Simply put, a treating physician or other treating professional who limits his or her evidence in this way does not need to be qualified and is not treated as an expert. It is when the witnesses seeks to offer opinions as to the cause of the injury, it’s pathology or prognosis that the evidence enters into the area of expert opinion requiring compliance with rule 53.03.

[24] In her submissions, counsel for the plaintiff said that a diagnosis is a fact not an opinion. On this basis, treating physicians would be permitted to give evidence as to their diagnosis without the need to comply with rule 53.03. A diagnosis is not always a fact. In the law of evidence, an opinion is an “inference from observed facts” (see: R. v. Abbey, supra, at 409, as quoted in R. v. Collins, supra, at para. 17). A diagnosis begins as an inference a doctor, relying on his or her expertise and experience, makes from observations and other information to identify an injury or disease. It may, as a result of further observation or the response to treatment, prove to be correct. It may also turn out to be wrong. Having said this, there are situations where evidence of a diagnosis may be treated as a fact. It depends on the purpose to which the evidence is put. If a physician gives evidence of his or her diagnosis to explain the treatment provided, it is a fact that the diagnosis was the catalyst for the treatment. The diagnosis may still have been wrong. The statement of the witness does not establish as a fact that it correctly diagnoses the injury or illness. It is only relevant and admissible to understand the basis of the treatment chosen. It may be that the inference to be drawn seems irrefutable as a result of observations that can be made, for example, by use of an x-ray. Even so, for the purposes of evidence, it remains an opinion. X-rays can be misread. In this case, it is opinions of the treating professionals that the judge required be supported by reports that complied with rule 53.03. He was correct in doing so.

[27] When the requirements of the law are understood, as described above, it is evident that the decisions of the trial judge were correct. This is so with respect to each of the concerns raised by the appellant. In determining whether and how rule 53.03 is to be applied, there is no basis for distinguishing between witnesses who treated the plaintiff and those who were retained solely to provide an opinion at trial. Rule 53.03 has to be applied taking into account the nature of the evidence to be called. Is it factual or opinion evidence?

(emphasis added)

The Moore v. Getahun Decision (January 14, 2014)

[42] In Moore v. Getahun, 2014 ONSC 237, Justice Wilson was required to rule on the admissibility of Dr. Tanzer, an emergency room doctor, who had treated the plaintiff. The plaintiff called Dr. Tanzer as a fact witness. The evidence was to include the "diagnosis" which Dr. Tanzer had concluded upon the examination of Mr. Moore in the emergency room. Dr. Tanzer had not complied with R. 53.03. Dr. Tanzer did not file a medical report. The defence objected to the admissibility of this evidence.

[43] The court had the following to say regarding Dr. Tanzer's evidence:

[36] In the aftermath of Westerhof, there is uncertainty about the appropriate scope of treating physician testimony. This uncertainty requires clarification from a higher court.

[42] I conclude that Dr. Tanzer, as the treating emergency room physician, must be able to give evidence in a fulsome, comprehensive manner about his recollection of the steps he took on November 13, 2005, including his observations, diagnosis at the time, the reasons for his diagnosis, and the steps that he took as a consequence of his observations and diagnosis. This fact evidence is inevitably somewhat blurred with the issue of causation, but is necessary evidence to understand what Dr. Tanzer saw and what he did on November 13, 2005. This approach conforms to the principles in Westerhof.

[43] I conclude that Dr. Tanzer’s observations of the tight cast and the reasons why he cut off the cast are admissible facts for their truth. His diagnosis of compartment syndrome is also admissible for its truth and explains his actions, both cutting off the cast and calling Dr. Orsini to advise of his diagnosis of compartment syndrome and the need for immediate attention.

[45] As Dr. Tanzer did not serve a report pursuant to Rule 53.03 of the Rules of Civil Procedure, I conclude that he cannot provide opinions on the ultimate issue of causation or standard of care. Therefore, Dr. Tanzer’s opinion evidence that the development of compartment syndrome was caused by the tight cast is not admissible.

[46] Dr. Tanzer gave further evidence that the taught and established practice for emergency room physicians dealing with high impact fractures of the distal radius is to splint these injuries and never use a full circumferential cast. This evidence is not admissible to establish the standard of care in this case, as he did not file a report in compliance with Rule 53.03. In any event, the standard of practice for emergency room physicians may not be relevant to establishing the standard of care for orthopedic surgeons.

[44] Justice Wilson permitted Dr. Tanzer to testify about his diagnosis for its truth notwithstanding that the Plaintiff had not complied with R. 53.03. Justice Wilson drew a distinction between Dr. Tanzer's "diagnosis" when treating the plaintiff and providing an "opinion" on the legal issues of standard of care and causation. Justice Wilson acknowledged that Dr. Tanzer's diagnosis evidence was "somewhat blurred" with the issue of causation since Dr. Tanzer's diagnosis of compartment syndrome inevitably arose from the cast which was put on by the Defendant - the very issue which the Plaintiff alleged was the negligence.

The Campbell v. Roberts Decision (March 11, 2014)

[45] In Campbell v. Roberts, 2014 ONSC 1574, the plaintiff sought to admit various doctor's reports under s. 35 and 52 of the Evidence Act. At issue was the evidence of Dr. Faughnan's reports where Rule 53.03 had not been complied with. The Court initially ruled that Dr. Faughnan's reports were admissible but that Dr. Faughnan would have to be available for cross-examination.

[46] The Court concluded at para 23 (b), (c), and (d):

The purpose of section 52 is to ensure that trials are heard within a reasonable time and are conducted efficiently. There is a clear and logical distinction between hospital records and notes that are admissible under Section 35, reports that can be admitted under Section 52, and reports that express a specific expert opinion under Rule 53.03. Taking the position of the defendants to its most extreme would mean that any report written by a doctor commenting on the treatment of a patient and expressing an opinion in relation to that treatment, would be inadmissible unless the doctor is asked to prepare the report and unless the doctor comes to court. The result would be impractical in my view.

Clearly, the Westerhof case cannot be ignored in these considerations, notwithstanding the fact Section 52 is not mentioned in that case. I agree with the comments of the Divisional Court with respect to the fact that a diagnosis can be treated in different ways, depending on the purpose to which the evidence is put. In this case, I find that any evidence of diagnosis in Dr. Faughnan's reports are to explain the treatment provided. As such, the diagnosis becomes the catalyst for the treatment.

I do not see that Section 52 has been used by the plaintiffs to bypass the requirements of Rule 53.03. Proper notice was given and the defendants will have an opportunity to cross examine Dr. Faughnan. I do not see that Dr. Faughnan has given an opinion that the plaintiff's, Richard Campbell's, abscesses came from pulmonary AVMs. She talks about the possibility of microscopic AVM and that he likely has microscopic AVMs. As plaintiff' counsel put it, that is as far as it goes.

[47] When the plaintiff decided not to call Dr. Faughnan for cross examination, the court concluded that Dr. Faughnan's reports could be admitted for the factual information (see para 24(c)) only and not for any diagnosis made by Dr. Faughnan.

Discussion

[48] A diagnosis by a doctor is an opinion. In an online medical dictionary "diagnosis" is defined as:

the determination of the cause of a patient's illness or suffering by the combined use of physical examination, patient interview, laboratory tests, review of the patient's medical records, knowledge of the cause of observed signs and symptoms, and differential elimination of similar possible causes.

[49] As set out in Westerhof, supra, a diagnosis may be right or may be wrong. In the same case, the degree of certainty of any diagnosis may vary over time and vary from one doctor to another, even specialists in the field. As seen in many legal authorities, medical opinions as to a correct diagnosis sometimes are diametrically opposed.

[50] This is contrasted to data recorded in a doctor's clinical notes and records. This is factual information. Accurate recording is fundamental to a doctor's duty and the future care of the patient. The factual information is unlikely to be contentious. However, the implication or inference from that factual information will likely lead a doctor to a diagnosis which may be right or wrong.

[51] Westerhof supra, would permit factual information from a treating doctor's clinical notes and records to be admitted for its truth without compliance with R. 53.03. On the other hand, Westerhof, supra would not permit the treating doctor's diagnosis to be admitted for its truth unless there is compliance with R. 53.03.

[52] This set a clear requirement for counsel - if the party seeks to introduce opinion evidence for its truth, whether by a treating doctor or a medical legal expert - comply with R. 53.03.

[53] There are good reasons for requiring compliance with R. 53.03 by treating doctors when their diagnosis is being sought to be introduced for its truth. The provisions in sub-rule 53.03 (2.1) gives the trier of fact the information to properly assess the diagnosis, regardless of who makes or made the diagnosis. For example:

i. the doctor's area of expertise: What experience does the doctor have with this type of medical problem? For example, perhaps the treating doctor is an emergency room doctor who had never seen this type of medical problem before. Perhaps, while the doctor is not a specialist, the doctor has had considerable experience with this type of medical condition.

ii. the doctor's relevant qualifications, employment and educational experience: Does the doctor have expertise in the particular area where the opinion is offered? What is the doctor's extent or limitations on his ability to make the diagnosis.

iii. sets out the opinion or range of opinions: Was this a diagnosis or a working diagnosis? Was there further investigation and follow up to confirm the diagnosis? Did the doctor follow up and was the diagnosis varied or confirmed?

iv. the reasons for the opinion including the factual assumptions: Were other diagnosis considered and why were they rejected? What were the primary factors which led the doctor to this particular diagnosis?

v. acknowledgement that if the opinion is presented to the court, the doctor is to be impartial and primary responsibility is to the court. A legitimate concern was raised that a treating doctor may have a greater bias towards his opinion, given that his or her diagnosis may have been made years ago and that treatment was administered based on his diagnosis. Further, a treating physician may have dealt with the patient for years, developing a rapport or relationship with the patient.

[54] From the Defence perspective, these questions and many others are necessary for the Defence to properly plan a cross examination of the doctor. Without the above information, the Defence is prejudiced in its ability to challenge the accuracy of the diagnosis if the diagnosis is heard from this witness at trial for the first time.

[55] I acknowledge that Form 53 does not "neatly" fit for all treating practitioners. However, Rule 1.06(1) provides:

The forms prescribed by these rules shall be used where applicable and with such variations as the circumstances require.

(emphasis added)

[56] A serious issue could arise, as it does in this case, where a medical legal expert refers the plaintiff to a specialist for assessment and treatment. There is no reason why that "treating" specialist should not comply with R. 53.03 otherwise, the practice could develop that numerous specialists become involved with the "treatment" of the patient, all of whom could proffer opinions on the diagnosis without compliance with the requirements in R. 53.03. Any limitation on the number of "experts" becomes meaningless. (see s. 12 Evidence Act)

[57] Further, the issue becomes even more problematic when the treating doctor gives an opinion on the very issue both sides have retained medical legal experts, as in this case. R. 53.03 is not difficult to comply with. Even letting the treating doctor provide his or her opinion, but have the jury be told that they cannot rely on it for proof of the opinion, could be meaningless as the jury will have heard the opinion and will already be told to decide between a similar opinion(s) and a countervailing opinion(s). In my view, in most cases, this prejudice may be difficult to overcome.

[58] Lastly, it is important to note that the court does have the discretion to waive non-compliance of R. 53.03 in the appropriate circumstances. See R. 2.01(1) and Michienzi v. Kuspira, 2012 ONSC 2273.

[59] In Moore, supra, Justice Wilson determined that Dr. Tanzer could provide his diagnosis. This was found necessary to explain his treatment. However, Dr. Tanzer was going to testify viva voce at trial. Of importance is that Dr. Tanzer's diagnosis of compartment syndrome was not disputed by the Defence's medical legal experts (see para 484). As a result, Moore supra is distinguishable to this case.

[60] In Campbell, supra, Justice Gilmore's decision was that the treating doctor could not give opinion evidence unless the doctor testified despite the fact that the doctor had not complied with R. 53.03.

[61] It is difficult to reconcile Westerhof, supra with the decisions in Moore and Campbell, supra. In Moore supra, the evidence was opinion evidence and it "blurred" the line with respect to the causation issue. The Court in Campbell supra concluded that the report was admissible as the report would explain the treatment provided (at para 23(c)) notwithstanding that the issue was whether the report could be used as "proof of the opinions contained therein".

[62] In both Moore and Campbell, supra, the Court drew much from the fact the doctor would be cross examined in lieu of compliance with R. 53.03. In Moore, supra, this was the court's ruling when Dr. Faughnan did not testify. In my view, cross-examination of the doctor does not, by itself, fully ameliorate the trial efficiency and fairness sought to be achieved by compliance with s. 52 of the Evidence Act and R. 53.03.

[63] I conclude that, unless there is some other basis upon which a "report" is admissible, any medical opinion, whether by a treating doctor or a medical legal expert, must comply with R. 53.03 or obtain leave from the court for the non-compliance with R. 53.03.

A deceased doctor's evidence

[64] In this situation, the doctor is not available to testify.

[65] Justice Wilson considered this issue in Moore supra. In Moore, supra, Dr. Orsini, one of the treating doctors, subsequently provided an expert opinion by way of an expert report. Unfortunately, Dr. Orsini passed away prior to trial. The plaintiff sought to admit his expert report under s. 52 of the Evidence Act or alternatively, under the principled approach to the hearsay rule.

[66] The Court stated at paras 16 and 17:

Necessity was met as Dr. Orsini is deceased. Reliability was met because Dr. Orsini examined the plaintiff at the material time, he prepared the reports in a professional capacity, and the defendant could test the reliability of his opinions through cross-examination of a different expert familiar with them.

The defence sought to exclude Dr. Orsini’s reports which outline the facts and his observations, as well as his opinion as to standard of care and causation. First, the defendant argued that Dr. Orsini’s reports were not admissible under s. 52 of the Evidence Act. Dr. Orsini’s reports were “medical legal” reports because their primary purpose was to provide a legal opinion on negligence and causation. Second, the defendant argued that Dr. Orsini’s opinion in his reports was not necessary because Dr. Richards could provide expert opinion evidence on negligence and causation. The defendant challenged the reliability of Dr. Orsini’s report as the defence could not cross-examine Dr. Orsini, he was biased because he was the plaintiff’s treating doctor, and his reports did not comply with Rule 53.03(2.1) of the Rules of Civil Procedure. His reports were written prior to the amendments to Rule 53.03.

[67] Justice Wilson ruled that the portion of Dr. Orsini's reports which set out his facts and observations were admissible for their truth but that Dr. Orsini's opinion(s) were not admissible. With respect to other experts who commented on Dr. Orsini's opinion (including his surgical notes and observations) or statements made by Dr. Orsini to the plaintiff were admissible as part of the res gestae but not admitted for their truth. See para 21.

[68] In my view, this strikes a fair balance in unusual circumstances where cross examination is not possible. This balances the interests of both parties. The jury would understand and could rely on the factual information from the doctor, including his assessment and treatment. However, the jury would understand that the diagnosis might or might not be correct and the doctor was not cross examined on his diagnosis - a significant limitation on its reliability.

[69] In Wadhwani v. State Farm Mutual Automobile Insurance Company, 2013 ONCA 662 the Court of Appeal upheld the trial judge's exclusion of the doctor's reports. However, the trial judge had concluded that the reports were little more than a distillation of the deceased doctor's clinical notes which were filed as exhibits and his reports were not necessary for the proper presentation of the plaintiff's case. (see para 6)

[70] Clearly, the court has and must exercise its discretion to admit medical records in the circumstances of the case balancing the probative and prejudicial impact on both parties.

Business Records

[71] The wording of s. 35 of the Evidence Act appears to include almost every type of writing made by any type of operation. However, there are limitations to admissibility under this section.

[72] The section only relates to any writing or recording of "any act, transaction, occurrence or event." In Setak Computer Services Corporation Ltd. v. Burroughs Busters Machines Ltd. (1977), 1977 1184 (ON SC), 15 O.R. (2d) 750, 76 D.L.R. (3d) 641, 1977 Cars­well­Ont 626 (Ont. H.C.) Justice Griffiths set out, in some detail, the criteria for admissibility under the section and discussed the type of recording that would qualify. They include:

i. the record must be made in the usual and ordinary course of business and it must be in the usual and ordinary course of business to make such a writing or record;

ii. the record must be made contemporaneously with the transaction recorded, or within a reasonable time thereafter;

iii. only records of “facts” can be admitted — note words in subsection 35(2) “an act, transaction, occurrence or event” and does not use the word "opinion"; and

iv. although there is no requirement that the maker of the record have personal knowledge of the facts recorded, he must be acting under a business duty and the informant must be acting under a business duty or the informant’s statement must be otherwise admissible under the hearsay rule of exceptions.

[73] In Setak supra, Justice Griffith expressly stated that business records could not be used to admit the validity of opinions:

A writing or record made in the regular course of business consists in its simplest form of a record by the maker on the basis of his own personal observations and knowledge, and there can be no objection to the minutes being offered for statements attributable to Dinniwell or Croil in proof of any acts, transactions, occurrences or events that they say happened at the time or within a reasonable time of the meeting.

However, on the basis of the decision of my brother Brooke, J., as he then was, in Adderly v. Bremner, 1967 308 (ON SC), 1 O.R. 621, 67 D.L.R. (2d) 274, the minutes may not be received to prove the validity of any opinion expressed at a meeting. I say that, regardless of who offered the opinion. I interpret his reasons as applying to those opinions which would not be accepted as evidence unless given by a duly qualified expert. Where the minutes contain opinions of that nature, they may not be used to establish the validity of such opinions.

The Position of the Defence

[74] The Defence opposes the relief sought by the Plaintiffs on the basis that they will not have an opportunity to cross examine the doctors or to demonstrate any bias they might have.

[75] Unfortunately, the Defence submission loses its persuasiveness when the Defence had done nothing to request that the doctors (other than Dr. Dennis) attend at trial for cross examination. Even when this motion was argued, the Defence brought no cross motion for this relief.

The Analysis

[76] There is no dispute that all of the medical opinion evidence sought to be adduced at trial meets the test in R. v. Mohan, [1992] 2 S.C.R. 9.

[77] Aside from the late Dr. Dennis' medical documents, no reason has been suggested why the other doctors are unable to testify at the trial in this case.

[78] Let me apply the above law to the specific medical documents the Plaintiff seeks to adduce at this trial by filing the medical reports.

a) The clinical notes and records of the late Dr. Michael Dennis

[79] These notes and records of Dr. Dennis contain factual information - his observations, testing information, and his treatment. These notes also contain his diagnosis.

i) the factual information in Dr. Dennis' notes and records

[80] Let me first deal with the observations, tests and treatment set out in Dr. Dennis' notes and records.

[81] The admissibility of evidence by the application of the "principled exception" to the hearsay rule, was articulated by the Supreme Court of Canada in R. v. Khelawon, 2006 SCC 57, [2006] S.C.J. No. 57. As set out in that decision, hearsay evidence is presumptively inadmissible, unless it falls under an exception to the hearsay rule. If the evidence does not fall under an existing hearsay exception, it may still be admitted if it meets the twin requirements of necessity and reliability. The onus is on the person who seeks to adduce the evidence to establish that the criteria for admissibility are established, on a balance of probabilities: see Khelawon at para. 47.

[82] To the extent that Dr. Dennis' notes and records are factual, there is no question that the notes and records meet the twin requirement of necessity and reliability.

[83] The admission of the notes and records are necessary given the death of Dr. Dennis.

[84] Do the notes and records meet the threshold reliability? In my view, they do:

i. Dr. Dennis is a licensed medical practitioner under an oath to provide the best medical treatment he can provide and to record the observations and treatment. These records are relied on in the future medical care of patients, including matters of life and death;

ii. These notes and records describe what he saw and did;

iii. The notes and records were done contemporaneous with the facts recorded;

iv. There is no evidence Dr. Dennis is biased. There was no motive to fabricate Dr. Dennis' observations and treatment of the plaintiffs;

v. The notes and records of Dr. Dennis were disclosed to the Defence. The Defence has had an opportunity to examine the Plaintiffs with respect to the facts set out in the notes and records at the examination for discovery; and

vi. the medical legal experts on both sides have, no doubt, received, reviewed and relied on Dr. Dennis' notes and records to come to their opinions as medical legal experts in this case.

[85] The notes and records, which pre-date and post-date the accident, are highly relevant. Aside from the fact that the Defence will not have an opportunity to cross examine Dr. Dennis on his factual content of his notes and records, there is no other prejudice suggested by the Defence. It is hard to imagine that Dr. Dennis would have any independent recollection aside from refreshing his memory from his notes and records.

[86] In my view, the notes and records of Dr. Dennis are admissible under the principled exception to hearsay as they relate to factual matters such as observations, assessment, testing, treatment and so forth.

[87] If necessary, I would have found that factual information in Dr. Dennis' notes and records would be admissible under s. 35 of the Evidence Act as business records, should all the requirements of s. 35(2) be established at trial. See Ares v. Venner, 1970 5 (SCC), [1970] SCR 608.

[88] In these circumstances, I need not go on to deal with whether Dr. Dennis' notes and records are admissible under s. 52 of the Evidence Act.

ii) the diagnosis in Dr. Dennis' notes and records

[89] The more difficult question is whether the diagnosis or opinions of Dr. Dennis set out in the notes and records are admissible under s. 52 of the Evidence Act.

[90] For the reasons set out above, the diagnosis and opinions of Dr. Dennis contained in the notes and records are not admissible as a business record.

[91] Following Westerhof, supra, if the diagnosis of Dr. Dennis are being put forward as proof of the validity of the diagnosis, then there must be compliance with s. 52 of the Evidence Act and R. 53.03.

[92] The question is whether the diagnosis in Dr. Dennis' notes and records are admissible by filing them under s. 52 of the Evidence Act. There is no dispute that the notes and records were served on the Defence as required by s. 52 of the Evidence Act.

[93] Dr. Dennis provided the Acknowledgement of Expert's Duty set out in R. 53.03 (2.1) 7.

[94] However, there was not strict compliance with the balance of R. 53.03(2.1) as the matters set out in R. 53.03(2.1) 1 - 6 were not complied with. A medical report with the information set out in R. 53.02(2.1) could have been obtained from Dr. Dennis. It was not.

[95] Should this court waive compliance with R. 53.03 in these circumstances and permit Dr. Dennis' diagnosis set out in his notes and records to be admitted under s. 52 of the Evidence Act?

[96] In my view, compliance with R. 53.03 should be waived in these circumstances. I do so for the following reasons:

i. The factual information set out in notes and records of Dr. Dennis have already been determined to be admissible. The factual information in the notes and records have been reviewed, relied upon and will be commented by the medical legal experts for both sides. Dr. Dennis' treatment of the plaintiffs for the 9 years after the accident and for several years before the accident will be a focus of this trial including on the threshold issue this Court must decide. Without an understanding of the diagnosis Dr. Dennis used for the treatment of the plaintiffs before and after the accident, his treatment and actions regarding the plaintiffs' medical conditions throughout the years, will not make much sense to the jury;

ii. It is unclear how the notes and records of Dr. Dennis could even be redacted in some manner to take out his express or implicit diagnosis of the plaintiffs;

iii. Dr. Dennis was a family doctor. He was not a medical legal expert. The medical legal experts in this case will opine on issues of physiatry, rheumatology and neurology. Dr. Dennis relied on the assessment by other specialists. He primarily carried out treatment based on his consultation with experts. I do not see that significant weight, if any, would be placed on the diagnosis that Dr. Dennis worked with. The other specialist doctors who consulted with Dr. Dennis and provided their assessment of the plaintiffs can testify and be cross examined. Their evidence will have a much greater impact on what the diagnosis was or should have been;

iv. There is an inability to cross examine Dr. Dennis' on any of his diagnosis, but this information has been known to the Defence and its medical legal experts for some time. Examinations for discovery and defence medicals were available to reduce or eliminate any prejudice to the Defence with respect to the basis for Dr. Dennis' diagnosis and this can be dealt with by the Defence medical legal experts;

v. In these particular circumstances, an instruction to the jury can easily be crafted which I believe would be clear and understandable to the jury that they cannot rely on Dr. Dennis' diagnosis as being a correct diagnosis. The instruction would be something along the line that Dr. Dennis was a family doctor, not a specialist in neurology or rheumatology, Dr. Dennis was not and cannot be cross examined as to why he came to that diagnosis or test whether his diagnosis is correct or wrong, and that the jury can only use any diagnosis set out in Dr. Dennis's notes and records to explain why he treated the patients in the manner he did.

[97] This treatment of Dr. Dennis' diagnosis in his notes and records is analogous to Justice Wilson's treatment of Dr. Orsini's report (which was much more central to the issues to be tried) in Moore supra and remains consistent with the manner diagnosis could be admitted not for the proof of accuracy of the diagnosis despite non-compliance with R. 53.03 in the decision in Westerhof, supra.

[98] As a result, I conclude that the diagnosis of Dr. Dennis contained in his notes and records are admissible.

b) The medical documents of Dr. Anna Czok, physiatrist, and Dr. Christine Lay, neurologist

[99] The medical documentation which the Plaintiffs seek to introduce at trial from Dr. Czok and Dr. Lay are the result of their consultation reports to Dr. Dennis.

[100] In the case of Dr. Czok, the "report" effectively is the Consultation Report she authored to Dr. Dennis on June 29, 2006 with respect to Anne-Marie Gaudet. This report expressly contains Dr. Czok's "assessment" and "diagnosis".

[101] Dr. Czok addresses the issue of causation as she attributes her diagnosis to the motor vehicle accident and she concludes with a diagnosis "most likely compatible with the ulnar neuropathy of the left ulnar nerve, possible thoracic outlet syndrome on the left, and myofascial pain syndrome".

[102] Dr. Czok's Consultation Report includes a radiologist's interpretation of a CT scan done on the plaintiff.

[103] Dr. Lay's medical documentation consists of her notes, a questionnaire and a clinic note. As with Dr. Czok, Dr. Lay's notes expressly contain Dr. Lay's "assessment" and "diagnosis".

[104] There are several troubling aspects of the medical documentation sought to be introduced through Dr. Lay's "report". The first is that the most detailed report in the documentation was done by Dr. Lay for Dr. Daune Macgregor, the plaintiff's medical legal expert in neurology. Perhaps more troubling, is that, in the notes, there is disclosed telephone conversations between Dr. Lay and plaintiffs' counsel but nothing further is known about those conversations.

[105] The reason the medical documents from Dr. Czok and Dr. Lay are sought to be admitted is primarily for their assessment and diagnosis of the plaintiffs.

[106] For the reasons set out above, Dr. Lay's assessment and diagnosis is not admissible as a business record.

[107] Has Rule 53.03 been complied with?

[108] Both Dr. Czok and Dr. Lay executed Acknowledgment of Expert's Duty.

[109] In neither case does the medical documentation comply with all the requirements of R. 53.03(2.1) and more specifically sub rules (2), (3), (4) and (6) have not been complied with. On this basis alone, I would rule that the medical documents from Dr. Czok and Dr. Lay are inadmissible.

[110] Is the medical documentation admissible under s. 52 of the Evidence Act? I would not exercise my discretion to admit these medical documents of Dr. Czok and Dr. Lay under s. 52 of the Evidence Act for the following reasons:

i. As for Dr. Lay's medical documents, without the information required in R. 53.03(2.1) which is missing, her role and instructions from the Plaintiff's medical legal expert raises numerous questions which could only reasonably be answered by way of cross examination. Further, what instructions or information did Dr. Lay receive or transmit to the plaintiffs' counsel; and

ii. As for Dr. Czok's documents, it is clear that Dr. Czok saw Anne Marie Gaudet on June 28, 2006 and produced a Consultation Report. There was a follow up visit with Dr. Czok on August 8, 2006 where Dr. Czok sent Anne Marie Gaudet for a CT scan. The CT scan took place on September 28, 2006. There is no further documentation showing any follow up after the CT scan was performed. It would appear that the documentation is not complete and/or there is no explanation for the lack of additional documentation.

[111] In both cases, I am persuaded that it would be highly prejudicial to the Defence to permit these medical documents to be filed without cross-examination on central issues in this case.

[112] In conclusion, the medical documentation from Dr. Czok and Dr. Lay cannot be admitted under Section 52 or 35 of the Evidence Act.

c) The medical documents of Dr. McKenzie, neurologist, and Dr. Liu, rheumatologist

[113] Dr. Liu is a rheumatologist. He was referred Anne-Marie Gaudet in 2007 by Dr. Dennis. Dr. Liu prepared a report to Dr. Dennis on April 7, 2007. The report contains his observations from his examination, his diagnosis of chronic pain amplification syndrome and early axial DDD and a proposed treatment. Dr. Liu's report does not comply with all of the requirements in R. 53.03(2.1).

[114] Dr. McKenzie is a neurologist. He was referred Matthew Gaudet. He saw Mr. Gaudet. On July 12, 2006 Dr. McKenzie provided a report to Dr. Dennis. The report contains Dr. McKenzie's observations from his examination, his diagnosis and proposed treatment. Dr. McKenzie's report does not comply with all the requirements in R. 53.03 (2.1).

[115] In neither case does the medical documentation comply with all the requirements of R. 53.02(2.1) and more specifically sub rules (2), (3), (4) ,(6) and (7). On this basis alone, I would rule that the reports are inadmissible under s. 52 of the Evidence Act.

[116] I would not waive the requirements of R. 53.03 in either case.

[117] With respect to Dr. Liu's report, I decline to waive the requirements because:

i. Dr. Liu essentially prepared a May 6, 2014 report which essentially attached his clinical report of April 5, 2007 to Dr. Dennis which report includes his treating diagnosis. The report was also copied to Dr. McKenzie. Having reviewed the report, after reviewing the patient's history and "General exam is unremarkable. MSK exam reveals no active joints. There is lumber hyperlordosis. FM trigger points:14/18" Dr. Liu goes on to make his diagnosis. Essentially, the purpose of the report is to get Dr. Liu's diagnosis before the jury without cross-examination;

ii. The jury could not understand and use this report given the limited information in the report and limited information regarding Dr. Liu;

iii. There is considerable prejudice to the Defence in not being able to cross examine Dr. Liu given the significant shortcomings in his report's non-compliance with Rule 53.03(2.1); and

iv. The Plaintiffs will be calling a medical legal expert who is a rheumatologist, who will have all the background information, observations from the examinations and provide his diagnosis, his reasons for his diagnosis, the degree of confidence in his diagnosis, why other diagnosis were rejected and be cross-examined on these and many other issues.

[118] With respect to Dr. McKenzie's report, I decline to waive the requirements because:

i. essentially Dr. McKenzie recites the history provided by Mr. Gaudet. The examination notes appear to find nothing significant. Dr. McKenzie then goes on to make his diagnosis: "This young man has post-traumatic vascular headaches with migraine features of classical type." Without explanation, this "assessment" by Dr. McKenzie is difficult to understand the reasons for his diagnosis;

ii. The purpose of seeking to introduce this clinical report is to get Dr. McKenzie's diagnosis before the jury without cross-examination. This would cause significant prejudice to the Defence in these circumstances;

iii. The jury could not understand and use this report given the limited information in the report and limited information regarding Dr. McKenzie; and

iv. The Plaintiffs also intend to call a medical legal expert who is a neurologist. Again, and for the same reasons, I would not exercise my discretion to permit the Plaintiffs to file his report under s. 52 of the Evidence Act.

[119] In summary, these medical reports are not admissible under s. 52 of the Evidence Act.

d) Chedoke reports (Pain Management Unit)

[120] Ms. Gaudet was referred to Chedoke by "K.M. Medical Management". Exactly who K.M. Medical Management and why they referred Ms. Gaudet to Chedoke is not known.

[121] It is important to note that the first medical document is an "Initial Assessment Report". Chedoke determined not to accept Ms. Gaudet into their Chronic Pain Management Unit. What is contained in the report is a detailed background regarding Ms. Gaudet prior to August 1, 2007. This report was authored by "Gianna Knibbs, MSc. (OT), OT Reg. (Ont.), Occupational Therapist. There is no other information regarding Ms. Knibbs, her expertise, experience or other information which would permit a jury to assess the contents of the report. It is unclear whether this even contains a diagnosis or is just a repetition of the background.

[122] There is a further report - a Consultation Note dated September 25, 2007 from Chedoke. This note contains extensive background information, a diagnosis and recommendations. This note was authored by Brian Kirsh, MD, FRCPC, Medical Director. Again, there is no other information regarding Dr. Kirsh, his experience, expertise or other information which would permit a jury to assess the credibility of the author and reliability of the report's contents and in particular, his expertise to make the diagnosis which Dr. Kirsh set out in the Consultation Note.

[123] Based on the above issues and non-compliance with R. 53.03, I would not admit these reports under s. 52 of the Evidence Act and there is no reason why this court should waive compliance with R. 53.03.

Conclusion

[124] I make the following ruling on the admissibility of evidence:

i. The factual information in Dr. Dennis' notes and records are admissible for the proof of the contents;

ii. The opinion information in Dr. Dennis' notes and records are inadmissible for the proof of the contents but can go in as part of the res gestae and will be subject to a limiting instruction to the jury on its use; and

iii. The remaining medical documents are not admissible under s. 52 or 35 of the Evidence Act.

[125] I will deal with any cost issues at the end of the trial.

Ricchetti, J.

Date: June 11, 2014