Court File and Parties
COURT FILE NO.: CV-11-418941 DATE: 20161005 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JESSE NORMAN IMESON Plaintiff – and – MARYVALE (ALSO KNOWN AS MARYVALE ADOLESCENT AND FAMILY SERVICES), TONY “DOE”, THE ROMAN CATHOLIC EPISCOPAL CORPORATION FOR THE ARCHDIOCESE OF LONDON and FATHER HORWATH Defendants
Counsel: Sumeet Dhanju-Dhillon, for the Plaintiff James Dakin for the Defendant Maryvale Susan Adam Metzler, for the Defendants Roman Catholic Episcopal Corporation for the Archdiocese of London and Father Horwath
HEARD: September 12, 13, 14, 15, 16, 19, 20, 21 and 22, 2016
STEWART J. (ruling ORIGINALLY DELIVERED ORALLY ON september 16, 2016)
Ruling
[1] Because of the time pressures inherent in the trial process, my ruling on this issue as provided on September 16, 2016 was necessarily brief. I am now providing my reasons to the parties in writing as I indicated I would do.
[2] The Plaintiff seeks to call the evidence of Dr. Kerry Smith. Dr. Smith provided counselling and therapy to the Plaintiff in prison custody, as has been detailed in the records and reports provided by him.
[3] Dr. Smith is a Mental Health Clinician. He holds a Ph.D. in psychology from a recognized Canadian university and currently functions as a psychologist in the British Columbia prison system. He has approximately 18 years of clinical experience, much of it accumulated providing psychological services to prison inmates. Because of licensing requirements in British Columbia, Dr. Smith is not permitted to use the term “psychologist” as he is not a Registered Psychologist in that province.
[4] I am mindful of the gatekeeper function of the trial judge in any proceeding. This role is particularly important when a jury will be asked to make the essential findings of fact. The court should be cautious about the potential for distorting the fact-finding process, particularly where oath-helping evidence is that of an expert. Issues of credibility are for the trier of fact to decide, not experts.
[5] Ultimately, it is necessary to for me to weigh the probative value of the evidence sought to be called against its prejudicial effect upon the other parties and the trial process.
[6] As noted, Dr. Smith has seen, assessed and counselled the Plaintiff in a prison setting over a lengthy series of therapeutic sessions.
[7] Whether the Plaintiff has suffered psychological and/or emotional harm is a central issue in this civil action for damages for alleged sexual abuse. I consider the proposed evidence of Dr. Smith to be relevant to that issue and to the nature and extent of that harm, if any, as those are factors among those to be considered by the jury in assessing damages.
[8] The fact that the Plaintiff has sought and undergone counselling and therapy may also be considered as by the jury as relevant to whether or not the sexual abuse alleged occurred.
[9] In my opinion, Dr. Smith’s credentials and experience qualify him as an expert as a mental health clinician, a term which embraces the field of clinical psychology. This is an area outside the common experience or knowledge of a judge or jury and one for which expert evidence is necessary as set out in and in accordance with R. v. Mohan, [1994] 2 S.C.R. 9.
[10] In my further opinion, the probative value of the proposed evidence outweighs its prejudicial value. The oath-helping concern, which is genuine (see: R. v. Llorenz), may be addressed with a mid-trial instruction to the jury as to how its members are to treat any history taken by Dr. Smith from the Plaintiff, and again at the end of the trial in final instructions to the jury.
[11] The analysis, however, does not end there. As a treating clinician, Dr. Smith falls within the classification of a “participant expert” as described by the Ontario Court of Appeal in Westerhof v. Gee Estate, 2015 ONCA 206. As such, his evidence may be admitted despite non-compliance with Rule 53.03 that requires service of a report within the prescribed time and an Acknowledgement of Duty signed by the expert.
[12] Nevertheless, Westerhof sets out limits for such evidence. The opinion to be given is to be based on the witness’ observation of or participation in the events at issue. The witness must have formed the opinion to be given as part of the ordinary exercise of his skill, knowledge, training, and experience while observing or participating in such events.
[13] If a participant expert offers an opinion extending beyond these limits, then he/she will have been retained for the purpose of litigation and must comply with Rule 53.03 with respect to the portion of the opinion extending beyond those limits (see: Talluto v. Marcus, 2016 ONSC 3340).
[14] It is common ground that no Rule 53.03 report or Acknowledgement of Duty has been delivered by Dr. Smith. Copies of his notes, compiled in a series of reports prepared by him, have been provided and served upon counsel for the Defendants pursuant to ss. 35 and 52 of the Evidence Act, R.S.O. 1990, c.E.23.
[15] As a result of Dr. Smith’s status as a participant expert, I conclude that he may testify as to his observations of, impressions formed regarding, and treatment provided to the Plaintiff as set out in the reports prepared by him from clinical notes take during his therapeutic sessions with the Plaintiff without having complied with Rule 53.03.
[16] As a result of the limits to be placed upon the evidence of a participant expert as set out in Westerhof, Dr. Smith may not give any opinion evidence as to any other matter not appearing in those reports. These matters as foreshadowed by counsel for the Plaintiff include:
(a) Will Imeson ever get out of prison? (b) Does Imeson fit the characteristics of someone who has been abused? and (c) Did Imeson have the characteristics that predatory sex offenders often seek out?
[17] If opinions on those subjects were to be sought to be adduced by the Plaintiff from Dr. Smith, a Rule 53.03 report containing such opinions and an executed Acknowledgement of Duty would have been required.
[18] I will allow admission of Dr. Smith’s opinion as to what therapy he would have recommended for the Plaintiff had therapy not been terminated by him, as I consider that evidence to be relevant to the issues of damages and reasonably within the scope of his participant expert status and the contents of his records and reports.
[19] Counsel for all the parties must be careful to exercise appropriate caution in their questioning of Dr. Smith to abide by this ruling. An additional instruction will be given to the jury concerning expert evidence and the need to distinguish and disregard any oath-helping evidence.
[20] Finally, the reports prepared by Dr. Smith, according to his evidence, represent an organized and accurate summary record of notes made by him during therapy sessions of the history taken from, observations made of, and counselling provided to, the Plaintiff by Dr. Smith. As such, they are clinical notes which I consider are admissible under Section 35 of the Evidence Act.
Stewart J. Released: October 5, 2016
Court File and Parties (Second Header Block)
COURT FILE NO.: CV-11-418941 DATE: 20161005 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
JESSE NORMAN IMESON Plaintiff – and – MARYVALE (ALSO KNOWN AS MARYVALE ADOLESCENT AND FAMILY SERVICES), TONY “DOE” and THE ROMAN CATHOLIC EPISCOPAL CORPORATION FOR THE ARCHDIOCESE OF LONDON and JOSEPH HORWATH THE TRUSTEE OF THE ESTATE OF FATHER HORWATH Defendants
RULING