Ghiassi v. Singh, 2017 ONSC 639
CITATION: Ghiassi v. Singh, 2017 ONSC 639
COURT FILE NO.: 56435
DATE: 20170127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Taha Ghiassi, Pouya Ghiassi, Pedram Ghiassi, by their Litigation Guardian Faredeh Ghiassi, Faredeh Ghiassi personally and Taher Ghiassi
Plaintiffs
– and –
Ram Nivas Singh, Aleksander Kornecki, Doreen Miyako Matsui, Paul Robert Atkinson, Timothy Frewen, Gurinder Singh Sangha, David Seleman Saleh, Abdullah Al-Sharif, Anne Elizabeth Wormsbecker, Sandra Oswald and London Health Sciences Centre, Lily Sui Liang, Fatima Kakkar, and Joel David Warkentin
Defendants
COUNSEL:
Barbara Legate, Joni M. Dobson, Daniel MacDonald, Danielle A. Douek, for the plaintiffs
Simon Clements and Jessica DiFederico, for the defendants, London Health Sciences Centre and Sandra Oswald
Andrea Plumb, Fred Tranquilli, Natalie Carrothers, for the defendants Ram Nivas Singh, Aleksander Kornecki, Doreen Miyako Matsui, Paul Robert Atkinson, Timothy Frewen, Gurinder singh Sangha, David Seleman Saleh, Abdullah Al-Sharif, and Anne Elizabeth Wormsbecker
HEARD: January 25, 2017
LEITCH J.
Ruling respecting the admissibility of expert evidence from the plaintiffs’ proposed expert Ms. Christine Rokash
[1] Before addressing the evidence and the specific issues raised on this voir dire, I note some key principles of law.
[2] It is clear from the Supreme Court of Canada’s decision in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, at para. 17, that expert evidence will be admitted if it is relevant - this requires a finding that the evidence is logically relevant to the issues in the case and the benefits of the evidence (in terms of materiality, weight and reliability) outweigh its costs (both practical and prejudicial); it is necessary and provides information likely to be outside the experience and knowledge of the trier of fact; the expert is properly qualified; and there is no applicable exclusionary rule.
[3] A trial judge retains residual discretion to exclude expert evidence if its prejudicial effect outweighs its probative value.
[4] I note that in R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, leave to appeal to SCC refused, 2010 S.C.C. 125, Justice Doherty proposed a two-step process for determining admissibility. First, the party proffering the evidence must demonstrate the existence of the Mohan pre-conditions to the admissibility of expert evidence; and second, once the evidence meets these preconditions, the trial judge must decide whether the expert evidence is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence, which Justice Doherty described as engaging more difficult and subtle considerations.
[5] Put simply, Abbey makes it clear that the reliability of the proposed evidence should be considered in determining whether the evidence is sufficiently beneficial to be admitted.
[6] At para. 117, Justice Doherty indicated that the proper question to be answered is whether research and experiences have permitted the expert to develop a specialized knowledge that is sufficiently reliable to justify placing the opinion before the trier of fact.
[7] In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] S.C.R. 182, the Supreme Court of Canada adopted the two-step inquiry propounded by the Ontario Court of Appeal in Abbey with minor adjustments.
[8] In White Burgess, at para. 23, the court indicated that the four Mohan factors (relevance, necessity, absence of an exclusory rule, and a properly qualified expert) must be demonstrated by the proponent of the evidence to establish the threshold requirements of admissibility. The court was clear that evidence that does not meet these threshold requirements should be excluded.
[9] At the second discretionary gatekeeping step, the judge is to balance the potential risks and benefits of admitting the evidence to decide whether the potential benefits justify the risk.
[10] In other words, quoting from Abbey, the Supreme Court of Canada in White Burgess stated that the trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission, despite the potential harm caused to the trial process that may flow from the admission of the expert evidence.
[11] In relation to the gatekeeping exclusionary discretion, the court indicated, at para. 54, that at this point relevance, necessity, reliability and absence of bias can be seen as part of a sliding scale. Initially, a basic level must first be achieved in order to meet the admissibility threshold. Thereafter these factors continue to play a role in weighing the overall competing considerations in admitting the evidence.
[12] At the end of the day, a judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk that the dangers that are associated with expert evidence will materialize.
[13] The Supreme Court of Canada in R. v. J.(J.L.), 2000 SCC 51, [2000] 2 S.C.R. 600, at paras. 28 and 29, has emphasized that the trial judge should take the role of “gatekeeper” seriously. The admissibility of expert evidence should be scrutinized at the time it is proffered and not allowed an easy entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility.
[14] On the second and third day of this trial a voir dire was held during which Ms. Legate, plaintiffs’ counsel, indicated that she wished to proffer the opinion of Ms. Christine Rokosh as an expert registered nurse with expertise in perinatal nursing, including newborn nursing.
[15] Ms. Rokosh explained that perinatal nursing, which includes the care of a mother from four weeks preconception, through pregnancy, labour and delivery, and care of the baby and mother up to three months post-delivery, has been a nursing specialty back to the 1980s and 1990s.
[16] In 1978, she obtained her diploma in nursing from Red Deer College in Alberta.
[17] In 2006, she obtained her certification from the Canadian Nurses Association as a perinatal nurse.
[18] Mr. Clements, counsel for the defendants, Sandra Oswald and London Health Sciences Centre, took the position that the proposed evidence from Ms. Rokosh is not admissible.
[19] There were a number of exhibits marked as registrar’s exhibits on the voir dire as follows:
• a 2016 Curriculum Vitae delivered by Ms. Rokosh when her first expert report was delivered to plaintiffs’ counsel – registrar’s exhibit A (now, trial exhibit # 7 on consent of all counsel);
• a 2017 Curriculum Vitae prepared by Ms. Rokosh at the request of plaintiffs’ counsel after she was made aware that Mr. Clements was objecting to the admissibility of her evidence based on her qualifications – registrar’s exhibit B (now trial exhibit # 8 on consent of all counsel);
• a brief of authorities relied on by defence witnesses – registrar’s exhibit C;
• the curriculum vitae of Ms. Pat O’Flaherty, the expert registered nurse retained by Mr. Clements - registrar’s exhibit D;
• the exam blue-print and specialty competencies for the perinatal nursing certification exam – registrar’s exhibit E;
• five Reasons for Judgment for cases in which Ms. Rokosh was an expert witness - collectively registrar’s exhibit F; and
• four articles referencing Ms. Rokosh – three articles written by Ms. Rokosh published in the Lawyers Weekly and one article highlighting Ms. Rokosh’s work published in the Globe and Mail – collectively registrar’s exhibit G.
[20] There is no issue that the proposed evidence from Ms. Rokosh is relevant and that it is necessary to assist the trier of fact. In other words, this evidence is reasonably necessary as required by Mohan in the sense that it is likely outside the ordinary experience and knowledge of the trier of fact.
[21] The proposed evidence relates to a fact in issue at this trial, that is, whether or not Nurse Oswald met the requisite standard of care.
[22] There can also be no issue that this type of evidence is necessary to assist the trier of fact in deciding that issue.
[23] The real challenge put forward by Mr. Clements, as detailed more fully below, is whether Ms. Rokosh was a properly qualified expert to offer her opinion.
[24] This case has been brought because Taha, a child now 11 years of age, has a chronic condition known as kernicterus.
[25] The agreed statement of facts indicates that he suffered from acute bilirubin encephalopathy.
[26] Taha was born December 22, 2005 at 11:21.
[27] Jaundice was first noticed and documented by the defendant nurse, Sandra Oswald at 21:00 on December 25, 2005.
[28] A blood test for bilirubin was taken at 8:45 on December 26, 2005 and thereafter it was learned that the result of the bilirubin test was at a critical level and phototherapy treatment was immediately ordered.
[29] I understand that Ms. Rokosh has prepared four opinions on the standard of care required of Ms. Oswald, dated January 15, 2016, May 18, 2016, November 14, 2016, and December 23, 2016. I note parenthetically that none of these expert reports were disclosed to me and they were not made registrar’s exhibits on the voir dire.
[30] Her first report dated January 15, 2016 was accompanied by a curriculum vitae, which is trial exhibit # 7.
[31] Ms. Legate was alerted to the fact that Mr. Clements was challenging the qualifications of Ms. Rokosh. This issue was the subject of discussion at a trial management conference January 16, 2017 (in respect of procedural but not substantive issues). Shortly thereafter, Ms. Legate provided to Mr. Clements a second curriculum vitae of Ms. Rokosh, which is now trial exhibit # 8. This 2017 curriculum vitae is more expansive with respect to her employment at the Peter Lougheed Hospital in Calgary. She has included a statement that she undertakes “newborn assessment and treatment and post-partum care of mothers and babies; direct patient care for newborns, including amongst other things, assessment of jaundice and performance of comprehensive newborn physical assessments”.
[32] She has also included that, as part of her employment with Dr. Morris, she was involved in the assessment and education of new mothers regarding, amongst other things, assessment and treatment of newborn jaundice.
[33] With respect to her employment at the Sturgeon Health Unit in St. Albert, Alberta, she indicated that that employment could also be referred to as the work of a pediatric specialist and she also included the fact that she cared for medically high-risk children at home after their discharge from the hospital, including care of jaundiced newborns on home photo therapy programs.
[34] She also included that between 1991 and 1995, in another position, she worked in labour and delivery and newborn care at Sturgeon General Hospital in St. Albert, Alberta. Here, she provided post-partum care of mother and baby from admission to discharge, was involved in direct patient care for newborns and had specialized training in maternal/infant health, resuscitation, fetal monitoring, antepartum, intrapartum, and postpartum nursing care of babies and mothers.
[35] She also included that while working as a postpartum staff nurse at Grace Hospital in Calgary from 1982 to 1985, she was a maternal/child health specialist in the postpartum unit providing service in the areas of postpartum care, and mother and newborn care on a combined mother/baby unit.
[36] Mr. Clements suggested that I ought to be very concerned with an expert who provides a second CV shortly before trial.
[37] In considering this submission, I have also considered Ms. Rokosh’s evidence that her first CV did not explain her neonatal care experience and that she had made some assumptions that postpartum care involved care of babies.
[38] As a result of being asked by Ms. Legate to expand on her involvement with newborns in each of her places of employment, she prepared another CV, which she candidly acknowledged, for the first time included a section dealing with her employment at Sturgeon Hospital, which was a casual position.
[39] I accept Ms. Rokosh’s explanation for why there was additional and new information included in her CV. This supplemental information could have been presented only on the voir dire.
[40] The preparation of a second CV was helpful to the court and to Mr. Clements. It was a clear and candid illustration of what was supplemental to her first CV.
[41] I do not find that this presentation diminishes her qualifications or reveals an effort on her part to artificially augment her credentials.
[42] It was clear from the argument of both counsel that the question which Ms. Rokosh is to address is the following: is this baby jaundiced and what do I do about it? Mr. Clements, in particular, emphasized the second question which reflects the standard of care inquiry and which he submits goes to the core of what this case is about given that Nurse Oswald identified the jaundice: what should a nurse do once the jaundice assessment has been done in accordance with proper standards?
[43] In other words, what is the standard of care for a newborn at day 3 in an ill baby nursery in a tertiary hospital when the nurse notices the baby has jaundice?
[44] Mr. Clements has taken the position that Ms. Rokosh is not a properly qualified expert in 2017 to provide evidence on these issues and she is not qualified to answer the standard of care issue raised in this action.
[45] Mr. Clements has argued that Ms. Rokosh is a “roaming expert” who, if allowed to testify, “will be going to the fringes of her knowledge”. He argued that when an expert “roams”, the reliability of that evidence is diminished.
[46] He noted that in Abbey the court referenced the commentary of the Goudge inquiry cautioning that it is crucial that judges define the nature and limits of expertise to provide clarity to what the experts can properly opine on, allowing the court to curtail the “roaming expert”; that the admissibility safeguards to ensure relevance, necessity and reliability of expert evidence are for not if experts are allowed to stray beyond their field of expertise and offer, under the guise of expertise, what are in essence only lay opinions that have no scientific value; that to meet the first Mohan criterion of relevance does not simply require logical relevance but a more searching comparison of the probative value of the evidence in relation to its possible prejudicial impact on the trial process, in other words, legal relevance which raises the issue of whether the proffered evidence is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability; reliability must therefore be a constant concern of judges in their gatekeeping role even though reliability does not have a separate label when Mohan is reduced to a four-part test for the admissibility of expert evidence; and in determining threshold reliability, the trial judge should focus on factors related to the reliability of the witness, including whether the witness is testifying outside of his or her expertise.
[47] In making his argument respecting Ms. Rokosh’s lack of requisite expertise and threshold reliability, Mr. Clements referred to Ms. Rokosh’s previous experiences as an expert at trial.
[48] Ms. Rokosh has been qualified as an expert witness and has testified at trial in two actions in Ontario in 2004 and 2009, in two actions in British Columbia in 2005 and 2015, and one in Saskatchewan in 2008. In each case she had been retained by the plaintiffs and testified as an expert in relation to triage, fetal monitoring or obstetrical nursing care. The point emphasized by Mr. Clements is that she had not testified or offered expert evidence in relation to newborn care.
[49] In addition, she had provided an affidavit in a New Brunswick class action in 2012 relating to a pathologist.
[50] He also noted that Ms. Rokosh had written three articles for the Lawyers Weekly, which are posted on her website, in which she is identified as a legal nurse consultant since 2002, offering services to lawyers across Canada as a nurse expert and offering educational seminars to lawyers, nurses and universities while continuing to work in an acute care hospital setting.
[51] The articles she authored outline the services that can be offered by a nurse expert. I will not detail the outline of the articles, but it is fair to say that the articles do not relate to newborn care. In one of the articles, she was recognized as having over 20 years of nursing experience in obstetrical care, having recently completed a program to manage obstetrical risk effectively, was an active member of AWHONN, which I will describe in more detail later, and had training to offer instruction in fetal heart monitoring.
[52] In addition, she was the subject of an article published in the Globe and Mail in which she was described as a Calgary business woman behind the OPTIO Group, a firm that uses nurses, not lawyers, to help claimants in class actions obtain their settlement.
[53] In this article, she was identified as already being the founder of a medical legal business which was a network of about 1000 practicing Canadian doctors and nurses who are specially trained in delivering expert medical testimony in court; that her business had helped law firms fill out medical class action forms: and, that her new business of OPTIO Group was going to offer claim filing services directly to the public.
[54] I pause to note here that Mr. Clements indicated he was not raising a concern with respect to Ms. Rokosh’s bias and potential inability to be objective and independent from the party who retained her. Rather, he took the position that because of her business enterprises and her desire to assist plaintiffs, there is a question as to the reliability of her evidence and “her entrepreneurial imperative forces her out to the fringes”, as he put it. He considered her a classic roaming expert, which the Goudge inquiry warned of, who is offering an opinion on a subject that she has very little experience in and, as a consequence, she should be curtailed.
[55] In relation to the issue of what is revealed by these articles and decisions where she testified as an expert witness for the plaintiffs, I note that although Ms. Rokosh held herself out as an expert in obstetrical nursing, as having some level of expertise in emergency medicine and as an expert in fetal heart monitoring in the Lawyers Weekly articles and in her expert testimony in the trials described above, she indicated that she has given her opinion on many newborn cases which have not proceeded to trial.
[56] She also indicated that the CMPA has retained her several times to provide opinions on nursing standard of care and she did testify in a jury trial in Saskatchewan on behalf of defendants.
[57] There is no question that since 2009 she has pursued areas of work beyond bedside nursing care. She candidly acknowledged that in the last three to four years her work has been focused on nursing education. However, up to 2009 she was very involved in bedside care.
[58] I note also that while it was suggested to Ms. Rokosh by Mr. Clements that her publications since 2008 focused significantly on legal issues relating to nursing, she explained that perinatal care is a big part of her presentations and she typically focuses on common issues that arise in relation to that care using a case study approach to heighten awareness and to focus on the promotion of patient safety.
[59] In addition, while her CV does not reference presentations on providing care to a three-day old baby, she testified that she provided that type of presentation to nursing students while she was working in hospitals.
[60] I am satisfied that in relation to the question of the admissibility of her evidence, Ms. Rokosh does not have a plaintiffs’ orientation that raises an issue with respect to the reliability of her evidence.
[61] I will next deal with her education and work experience, which according to Ms. Legate satisfies the requirements of Mohan and justifies the admission of Ms. Rokosh’s evidence on a cost/benefit analysis described above.
[62] Mr. Clements submitted that she has never worked in a nursery. Her neonatal experience has been confined to well-baby care when the baby is left with the mother and there is no evidence that she cared for babies who are fed through a nasal gastro tube, or who were on oxygen. He contended that her nursing of well babies was a different discipline than level two nursery care in a tertiary hospital.
[63] He also contended that the syllabus to obtain the accreditation as an antenatal nurse demonstrates that she knows a little about a lot of things.
[64] To obtain her certification from the Canadian Nurses Association as a perinatal nurse required several months of study where she was required to develop competencies as outlined in the blueprint for the perinatal nursing certificate exam, which is registrar’s exhibit E.
[65] This blue-print indicated that intrapartum care requires 60 competencies or 34.7 percent of the total number of competencies, and the largest number of competencies are in postpartum care, 65 or 37.6 percent of the total number of competencies.
[66] The blue-print also indicated that 30 to 40 percent of the examination would be weighted towards postpartum care.
[67] Certain competencies have particular relevance on this voir dire. These include: the competencies to select appropriate nursing interventions for the newborn related to physical assessment; the selection of appropriate nursing interventions based on the potential newborn complications of rapid heart rate, rapid respiration, sepsis, abnormal physical problems and hyperbilirubinemia (a higher than normal level of bilirubin in the blood); and the competency to demonstrate knowledge of normal infant growth and development, including physical and neurological.
[68] With respect to hyperbilirubinemia, she indicated that an antenatal nurse needed to know and understand pathologic hyperbilirubinemia, as well as physiologic jaundice, which develops in babies naturally.
[69] She has therefore received education in the area in which she will be testifying.
[70] In addition, amongst other things, she is a member of the Association of Woman’s Health, Obstetric and Neonatal Nurses (AWHONN), an association of perinatal nurses and other nurses involved in a wide variety of women’s health or pediatric care including newborn care. She has had access to and been informed by AWHONN’s 2005 publication referenced by Ms. O’Flaherty, a neonatal nurse practitioner retained by Mr. Clements entitled “Hyperbilirubinemia in the Neonate: Risk assessment, screening and Management.”
[71] Ms. Rokosh has also provided newborn nursing care over an extended period of time.
[72] In 1982 to 1985, when mothers typically stayed four to five days in hospital, she worked as a postpartum staff nurse at Grace Hospital in Calgary and cared for mothers and babies in a combined mother/baby unit.
[73] From 1986 to 1991, she worked at Whitehorse General Hospital in the Yukon. At that time, mothers typically remained in hospital for three or four days and again she cared for mothers and babies in a combined mother/baby unit. She also did some medevac flight work.
[74] From 1991 to 1995, she worked at the Sturgeon Health Unit in St. Albert, Alberta, as a home care case manager and worked her way to providing pediatric and newborn care, including developing a phototherapy home program which she was responsible for in the community.
[75] As she indicated, she had given phototherapy to many, many babies prior to that time.
[76] She also, during the same time period, worked at the Sturgeon General Hospital in the labour, delivery and postpartum unit giving postpartum care to mothers and newborns.
[77] She described how, up to that point in time, nurses assessed a baby for jaundice and indicated that the teaching, assessment and intervention with jaundice was part of newborn care. She indicated that assessing for the risk of jaundice was a basic nursing skill, as was recognizing jaundice and advising a doctor so that the bilirubin test could be ordered. In most cases, ordering a bilirubin test is a doctor’s responsibilities and whether or not to begin phototherapy is also a doctor’s decision.
[78] It is significant that she was clear that the state of nursing around jaundice and the nursing responsibility to assess and report jaundice has not changed since the day she graduated.
[79] This is consistent with the evidence on discovery from the representative of LHSC that the hospital had a standard of care for hyperbilirubinemia for nursing in general and that there was not a separate policy or protocol or guideline for the PCCU and the CTU.
[80] It is also significant that Ms. Rokosh described herself as very familiar with the documents which are at tab 10 of the plaintiffs’ compendium. These are the London Health Sciences Centre standards of nursing care for newborns and for hyperbilirubinemia in 2005.
[81] From 1996 to 2008, Ms. Rokosh worked in the Peter Lougheed Hospital providing labour, delivery and newborn care to babies for days or hours after delivery. There was in-service training for hyperbilirubinemia for nurses on the unit.
[82] She indicated that the mother and baby were kept on the unit and if mothers wanted to leave the hospital within hours, she would train the mothers for jaundice assessment.
[83] There was also a neonatal intensive care unit in the hospital which she did not work in.
[84] From 1999 to 2005, Ms. Rokosh also worked in the office of an obstetrician/gynaecologist doing pre and post natal care.
[85] She described the two to seven day period post birth as being high risk for hyperbilirubinemia and she would make an urgent referral back to the hospital if there were any issues of jaundice or she could refer a baby to the community health nurse for bilirubin testing.
[86] As Ms. Rokosh explained, in 2001 she was asked to be a nursing expert and after that, as she put it, she put herself out there as a nursing expert after putting in 2000 hours of time in learning and independent study.
[87] Therefore as of 2005, she worked in the Peter Lougheed Hospital, in the office of an obstetrician/gynaecologist, and she had started a legal nurse consulting business.
[88] She confirmed on cross-examination that all of the hospitals she had worked in had some type of residency program, although the Peter Lougheed Hospital was the only hospital technically equivalent to LHSC.
[89] I note that Ms Rokash re-emphasized during her testimony that the basic nursing responsibility or standard applicable to nurses who care for newborns, consistent with her experience at the Peter Lougheed Hospital, to recognize jaundice and intervene has not changed since she graduated.
[90] Further, Ms. Rokosh indicated that she read the examination for discovery of Ms. Oswald and Ms. Heather Davidson Martin, who was the nurse who cared for Taha when he was in the PCCU, and the examination of the representative of LHSC and, in particular, their evidence in relation to jaundice, hyperbilirubinemia, documentation and communication with physicians and indicated that their evidence was not beyond her scope of practice as a perinatal nurse.
[91] While it was suggested to Ms. Rokosh on cross examination that she had never provided nursery care, Ms. Rokosh indicated that she had provided care for newborns in the mother’s room. She explained that nurseries had been dissolved in Grace Hospital, in Whitehorse and in the Sturgeon Hospital because it was all about keeping the babies and mothers together and essentially the mother’s room became the nurseries.
[92] I cannot accept Mr. Clements’ submission that Ms. Rokosh’ experience has been limited to well-baby care. She clearly disagreed with that suggestion on cross-examination and she testified that she had also managed care for ill babies, including babies who were treated with oxygen, IV, nasal/gastro tubes and phototherapy. She emphasized that a very high percentage of her practical experience had been in relation to newborn care rather than in labour and delivery.
[93] She spoke about the significant amount of in-service training she received monthly at the Peter Lougheed Hospital and that, as previously noted, as a perinatal nurse she has had access to AWHONN educational material referenced by Ms. O’Flaherty.
[94] The opinion which Ms. Rokosh will offer is in a field which is a recognized area of specialized training within the nursing profession. She is certified by her profession as having the qualifications of this nursing specialty. She has had many years of experience using that specialized training in the workplace. The care which is in issue has not changed and it is considered basic. This is consistent with the evidence of Ms. Davidson Martin that the PCCU always had mandated education days as part of her employment at LHSC over many years since 1992 but she took no courses related to jaundice and hyperbilirubinemia in neonates.
[95] I am satisfied that Ms. Rokosh’s evidence meets all of the admissibility requirements. Her evidence is logically relevant to the issues in the case and the benefits of the evidence (in terms of materiality, weight and reliability) outweigh its costs (both practical and prejudicial); it is necessary and provides information likely to be outside the experience and knowledge of the trier of fact; and the expert is properly qualified and there is no applicable exclusionary rule.
[96] It remains for me to consider the benefits of the evidence weighed against the costs or prejudice that arise from its admission.
[97] Here there is no risk that the expert opinion evidence will compromise the trial process by unduly protracting and complicating the proceeding.
[98] Other costs arise from the risk that a trier of fact will give the opinion more weight than it deserves, that the evidence will be misused or that the evidence will create confusion and/or consume too much time at trial.
[99] In considering the cost or the risk of admitting the evidence, I note that the jurisprudence is clear that the most important risk is the danger that a trier of fact will be unable to make an effective and critical assessment of the expert evidence and yield its fact finding function.
[100] This risk does not exist here. This evidence will not be misleading in the sense that its effect on the trier of fact will be out of proportion to its reliability.
[101] For these reasons, Ms. Rokosh will be permitted to provide her opinion to the court.
“Justice L. C. Leitch”
Justice L. C. Leitch
Released: January 27, 2017
CITATION: Ghiassi v. Singh, 2017 ONSC 639
COURT FILE NO.: 56435
DATE: 20170127
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Taha Ghiassi, Pouya Ghiassi, Pedram Ghiassi, by their Litigation Guardian Faredeh Ghiassi, Faredeh Ghiassi personally and Taher Ghiassi
Plaintiffs
– and –
Ram Nivas Singh, Aleksander Kornecki, Doreen Miyako Matsui, Paul Robert Atkinson, Timothy Frewen, Gurinder Singh Sangha, David Seleman Saleh, Abdullah Al-Sharif, Anne Elizabeth Wormsbecker, Sandra Oswald and London Health Sciences Centre, Lily Sui Liang, Fatima Kakkar, and Joel David Warkentin
Defendants
ruling
LEITCH J.
Released: January 27, 2017