COURT FILE NO.: 79524/12
DATE: 20190517
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
COLE PARLIAMENT, an incapable by his litigation guardian KIMBERELY YORK, JOHN PARLIAMENT, and KIMBERELY YORK personally
Plaintiffs
– and –
D.W. CONLEY and V. PARK
Defendants
H. ELMALEH and M. Hershkop for the Plaintiffs
D. CHARACH, J. Ur and D. Cruz for the Defendants
HEARD:May 16, 2019
s.J. WoODLEY
RULING re. admissibility of EXPERT evidence
OVERVIEW
This ruling relates to the admissibility of expert medical evidence that the plaintiffs propose to elicit from Dr. Andrew Macnab.
The issue arises in the early stages of a medical malpractice trial before a jury.
The facts giving rise to this proceeding in summary are as follows:
a. In August of 1999, the plaintiff Cole Parliament was born. In the weeks and months shortly following his birth, Cole was attended upon by Dr. Conley, a family physician.
b. Dr. Conley examined Cole on three occasions as part of Cole’s usual and ordinary well-baby check-ups. The attendances were on September 3, 1999, September 21, 1999 and October 15, 1999.
c. On each attendance at Dr. Conley’s office, Cole’s weight, height, and head circumference were measured and graphed.
d. At Cole’s last attendance at Dr. Conley’s office being October 15, 1999, Dr. Conley was informed that the plaintiffs were moving and leaving his practise.
e. Dr. Conley’s note for the October 15, 1999 visit records the head circumference at the 97th percentile. The note states “will watch head size”.
f. According to Cole’s mother, at each of the attendances with Dr. Conley, she specifically enquired about the size of Cole’s head and was reassured by Dr. Conley that Cole’s head size was in the normal range and there was nothing to be concerned about.
g. According to Cole’s father, he attended one appointment with Cole and at that attendance (the date of which he cannot remember), he specifically enquired about the size of Cole’s head and was reassured by Dr. Conley that Cole’s head size was in the normal range and there was nothing to be concerned about.
h. In November 1999, Cole’s family moved to Barrie, Ontario, and Dr. Conley ceased being Cole’s family physician.
i. Following the move and on December 11, 1999, while at a social gathering, a family friend named Susan Williams, who was also a paediatric nurse, expressed concern over the size of Cole’s head. Ms. Williams arranged an appointment with the paediatrician where she worked, scheduled for December 16, 1999.
j. Cole attended at the paediatrician’s office on December 16, 1999. At this attendance the paediatrician advised Cole’s mother that he believed that Cole had hydrocephalus and referred Cole to a neurosurgeon at the Hospital for Sick Children (HSC) where Cole attended the following day.
k. On December 17, 1999, Cole was diagnosed by the neurosurgeon at HSC with hydrocephalus and advised that Cole required shunt surgery. Cole’s shunt surgery was performed on December 19, 1999.
l. Cole is now 19 years of age and suffers physical and cognitive disabilities which the plaintiffs’ allege are caused by the negligence of those physicians (including Dr. Conley) who treated Cole between August and November of 1999. The issues at trial are liability, causation, and damages.
The jury trial of this action commenced on May 13, 2019.
At the commencement of the trial on May 13, 2019, the plaintiffs sought to exclude a certain entry in Cole’s medical records. For reasons delivered on May 14, 2019, I determined that the entry was admissible as an exception to the hearsay rule as part of the business records, for which notice under the Evidence Act had been served. I further held that the issue relating to the entry in the medical records was not admissibility but weight, if any, to be given to the entry, which matter shall be determined by the jury.
The plaintiffs have opened their case before the jury and have begun to call their witnesses. To date, the plaintiffs Kimberley York and John Parliament as well as the paediatric nurse, Susan Williams, have completed their testimony.
The plaintiffs now seek to qualify their first expert witness, Dr. Andrew Macnab.
The plaintiffs seek to qualify Dr. Macnab as an expert with respect to paediatrics and neonatology.
The plaintiffs seek to have Dr. Macnab be permitted to give evidence on:
a. Standard of care applicable to the diagnosis and management of a paediatric patient with hydrocephalus; and
b. Causation of Cole Parliament’s brain injury.
The defendants concede that Dr. Macnab may be qualified as an expert in paediatrics and neonatology.
The defendants further concede that Dr. Macnab is permitted to give evidence on the issue of causation of Cole Parliament’s brain injury. The defendants object, however, to Dr. Macnab providing expert evidence with respect to the standard of care applicable to the diagnosis and management of a paediatric patient with hydrocephalus.
More particularly, the defendants argue that Dr. Macnab is a highly specialized paediatrician and neonatologist and not a family physician. Dr. Macnab has never practised as a family physician, has no expertise in family practise and should not be permitted to provide an opinion on the standard of care applicable to Dr. Conley, who is a family physician.
The defendants rely upon several seminal cases in support of their position including Crits v. Sylvester (1956), 1956 CanLII 34 (ON CA), [1956] O.R. 132; ter Neuzen v. Korn 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674 (S.C.C.); and R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 (S.C.C.).
ISSUE
- The issue before me is whether Dr. Macnab, an expert in paediatrics and neonatology, is permitted to give evidence on the “standard of care applicable to the diagnosis and management of a paediatric patient with hydrocephalus”.
LAW AND ANALYSIS
The Legal Test for Admissibility
As noted by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 82, at para. 19, the legal test for admissibility has two components.
In the first stage, the proponent of the evidence must persuade the trial judge that the proposed expert opinion is:
(i) relevant;
(ii) necessary;
(iii) not barred by any other exclusionary rule; and
(iv) given by a properly qualified expert.
The defendants agree that Dr. Macnab’s evidence meets these criteria insofar as his evidence relates to causation. However, with respect to his evidence on the standard of care expected of a family physician, the defendants submit that while his evidence might be relevant – they submit that it is repetitious and duplicitous as the plaintiffs are calling three family physicians to provide expert evidence on the standard of care. Further, that Dr. Macnab is not properly qualified to provide such evidence as he is neither a family physician nor has he ever practised as a family physician.
In the second stage of the test for the admissibility of expert evidence, the trial judge must engage in a gatekeeping function in which the trial judge balances the potential risks and benefits of admitting the evidence to determine whether the potential benefits justify the risks: White Burgess at para. 24.
The Qualifications of Dr. Macnab
Given the position of the parties, the real issue at the first stage of the analysis is to determine whether Dr. Macnab is qualified to testify to about the care that Dr. Conley, a family physician, provided to Cole Parliament. Dr. Macnab does not comment on the care provided by Dr. Park.
The starting point of the defendants’ submission is that expert evidence is the exception, not the rule, as a result of which courts should take a rigorous approach to its admissibility. The defendants’ further submit that this is especially true in an action being tried by a jury where there is concern that Dr. Macnab’s considerable experience and impressive resume could, in the words of the unreported decision of Justice Wilson, in Ostor v. Mount Sinai Hospital, “cause the jury to place undue weight on his opinion as a result of his most impressive curriculum vitae”: 06-CV-306748PD2, (April 24, 2013).
In addition, the defendants underscore that the normal rule is for experts to testify specialist to specialist. That is to say, family physicians testify about family physicians and paediatricians about paediatricians. The defendants submit that it is only otherwise in exceptional cases, of which this is not one.
This approach is grounded in basic principles associated with the standard of care. As the Supreme Court of Canada described it in ter Neuzen, at para. 46, a “doctor’s behaviour must be assessed in light of the conduct of other ordinary specialists, who possess a reasonable level of knowledge, competence and skill expected of professionals in Canada, in that field”.
Almost 40 years earlier, the Court of Appeal for Ontario expressed the standard of care as that which “could reasonably be expected of a normal, prudent practitioner of the same experience and standing”: Crits at para. 13.
The defendants further submit that any requirement that a medical expert be limited to testifying about the standard of care in the expert’s own area of specialization while not absolute - in the present case is a necessary part of my gatekeeping duty to (again) ensure that the jury does not place undue weight upon Dr. MacNab’s opinion.
As the Court of Appeal for Ontario noted in Robinson v. The Sisters of St. Joseph of the Diocese of Peterborough in Ontario (1999), 1999 CanLII 2199 (ON CA), 117 O.A.C. 331 (Ont. C.A.), at para. 1:
There is no general rule that a specialist cannot offer an opinion as to the applicable standard of care governing medical treatment provided by a general practitioner, or that the specialist cannot offer an opinion as to whether the general practitioner met the applicable standard. The admissibility of the specialist's opinion depends on the subject matter on which that opinion is offered and the specialist's training and experience. Surely, there are treatments and procedures which are common to the practices of general practitioners and specialists alike.
- The Manitoba Court of Appeal came to a similar decision more recently in Timlick v. Heywood, 2017 MBCA 7, [2017] 5 W.W.R. 117, at para. 46- 47:
A medical expert’s qualification to testify about a standard of care in an area outside of his or her area of specialization depends on the issue at hand. By way of example, there would be a concern about a specialist testifying about a generalist in a way that held the generalist into the specialist’s standard of care. It would not, however, pose any risks for a specialist to testify that the generalist in fact met the specialist’s standard of care. Similarly, a generalist testifying about the standard of care required of a specialist raises questions about whether the generalist is in fact qualified to speak to the standard of care required of a specialist.
Where, however, a generalist is testifying to the effect that a specialist did not meet the standard of care of even a generalist because the specialist missed a basic issue with which every physician should be familiar, concerns about the generalist’s qualifications do not necessarily arise.
- The Court of Appeal recently pointed this out in Barber v. Humber River Regional Hospital, 2016 ONCA 897, 273 A.C.W.S. (3d) 142, where it stated, at para. 92:
Dr. Fong’s evidence on the standard of care was based on his personal knowledge and expertise regarding the knowledge and training that was common to and expected of all physicians in 2006 who were called upon to care for a patient with Mr. Barber’s presenting history and symptoms. It was Dr. Fong’s uncontradicted testimony that the knowledge expected of any physician assessing a patient who presents with signs and symptoms of meningitis is at the core of the concepts taught to all physicians. He said, for example, that knowing how a patient presents with a stroke, peritonitis, appendicitis, pneumonia or meningitis are “core things that all medical students should know by the time they finish their training”. Dr. Fong was experienced in teaching medical students on these very subjects, specifically, on the minimum standard applicable to all doctors in 2006, including ER physicians.
The situation before me is similar to that in Barber. To the extent that Dr. Macnab intends to testify about the care provided by Dr. Conley, he is, as he described during his examination and cross-examination on qualifications, testifying about things that all physicians had to and should have known at the relevant time period. He is doing so based on knowledge and training he had received as a paediatrician and neonatologist but also based on the knowledge and training that he provided as a professor to medical students and residents between 1995 and 2005. In the words of Dr. Macnab “going back to the undergraduate elements in second year, this is where medical students are taught the fundamentals of medicine. It is cross-disciplinary. So one is teaching people who will go on into different disciplines, pediatrics, neurology, family practise, they all learn the same basic facts that they take into practice with them that are defined by committees at the university based on what the physicians are required to know.”
Specifically with respect to the issue of growth parameters and assessment, measurement of head circumference and the use and interpretation of charts during regular well-baby checkups, Dr. Macnab testified that it is not a domain of pediatrics only it’s a domain of physicians in general. More particularly Dr. Macnab stated that “it’s an interdisciplinary basic skill necessary for the conduct of well-baby examinations.”
Additionally, Dr. Macnab testified that the way those different healthcare professionals use those charts and the information they get from them is the same regardless of their discipline. The action that they take based on that information will depend on what area they are practising in. “How they use the charts, how they interpret them, it’s a basic trend disciplinary skill”.
Dr. Macnab further testified that “We [pediatricians] have a central role in the teaching of that topic because obviously, as pediatricians, we are particularly focused on the issues of child health and child development. But other people who come into contact with children need to learn those skills from us so that they can practise comprehensively and effectively in whatever discipline they’re in.”
Dr. Macnab testified that he taught many medical students over the course of his career as an obligation being part of a medical faculty. His role to teach was particularly related to his knowledge of newborn infants and teaching medical students how to examine a newborn baby.
Dr. Macnab’s evidence is not trying to hold non-pediatricians to the elevated standard of care of a pediatrician. The gist of his evidence is that serial measurement of growth parameters are a central part of normal child examinations and comparing these measurements with values on standardized growth charts is a basic component of care that allows any abnormal trends in growth to be promptly detected. Further, the fundamental purpose of any physician measuring a variable such as head circumference and plotting its value sequentially is to identify change such as that which occurred in Cole Parliament’s head circumference. Dr. Macnab’s evidence is that hydrocephalus is a condition that all physicians are aware of from their training and is probably the principal concern to be considered when measuring head circumference cross the centiles. Failure to act promptly when the pattern of head growth (progressive trend of crossing the centiles) constitutes a failure to meet a basic standard of care applicable to all physicians.
Dr. Macnab seeks to speak about the issue of serial measurement of growth parameters that are a central part of normal child examinations and the use of these measurements with values on standardized growth charts as a basic component of care during regular well-baby checkups. Dr. Macnab testified that the use and interpretation of these growth charts is interdisciplinary basic skill necessary for the conduct of well-baby examinations.
Dr. Macnab is not purporting to testify at large about the standard of care expected of a family physician nor would he be permitted to testify about the standard of care family physicians bring to other areas of their practise.
However, this particular area, relating to serial measurement of growth parameters, and the use and interpretation of these measurements and charts during regular well-baby checkups as it relates to all physicians as an interdisciplinary basic skill is within Dr. Macnab’s expertise.
The plaintiffs allege that Dr. Conley fell below the standard of care expected of a family physician in the care and treatment of Cole Parliament and specifically his use and interpretation of the serial measurement of growth parameters regarding head circumference. Whether this is true or whether the outcome would have been different in any event is not at issue at this early stage. The issue is whether Dr. Macnab is qualified to provide evidence that supports the plaintiff’s theory.
As noted by the Court of Appeal in Barber, the courts have recognized that in a proper case, a specialist physician’s opinion on the level of care, skill, knowledge and judgment expected from a non-specialist may be admissible having regard to the nature of the medical question at issue. In other words the opinion of a medical specialist regarding the appropriate standard of care for a general medical practitioner may be admissible as necessary, relevant and helpful to the trier of fact: see for example, Robinson; Briffett v. Gander and District Hospital (1996), 1996 CanLII 11090 (NL CA), 137 Nfld. & P.E.I.R. 271 (Nfld. C.A.); Quintal v. Datta, [1988] S.J. No. 771, leave to appeal to S.C.C. refused, [1988] S.C.C.A. No. 488.
It is noteworthy that the trial judge in Barber, recognized correctly (according to the Court of Appeal) that an ER physician cannot be held to the standard of an infectious disease specialist and that was not the standard that the specialist testified. The trial judge limited the specialist’s evidence on the standard of care to the minimum standard applicable to all medical doctors at the relevant time. In doing so the trial judge reasoned, at para 249:
The minimum standard expected of [ER] physicians in 2006 cannot be lower than the minimum standard expected of all physicians. While I accept the submission that the standard of [ER] doctors could conceivably higher than the minimum standard expected of all MDs, I do not accept that it could ever be lower.
- As Morissette J. in Smith v. Liwanpo, [2008] W.D.F.L. 854, at para. 38, affirmed 2008 ONCA 551, articulated:
Clearly, the court must be careful to ensure that any criticism of the defendant’s care is not “coloured by the expert’s specialty” Williams (Litigation Guardian of) v. Bowler, [2005 CanLII 27526 (ON SC)](https://www.canlii.org/en/on/onsc/doc/2005/2005canlii27526/2005canlii27526.html), [2005] O.J. No 3323 (Ont. S.C.J.) at para. [220]. It is up to the court to weigh the opinion of the experts. The admissibility of the specialist’s opinion depends on the subject matter on which the opinion is offered and the specialist’s training and experience. As articulated by the Court of Appeal, “surely there are treatments and procedures which are common to the practices of general practitioners and specialists alike” [Robinson]. [Footnotes omitted.]
The approach, utilizing the minimum standard expected of all physicians as approved by the Court of Appeal in Barber, can be utilized in the present case while maintaining adherence to caution concerning colour of lens.
The admissibility of Dr. Macnab’s evidence under step one of the analysis is subject to one exception, and that is the wording in which the standard of care opinion is drafted. It is my view that the wording proposed by the plaintiffs presupposes a diagnosis of hydrocephalus by the physician managing the treatment of the infant. Clearly this is not correct.
As a result of the foregoing, I find under step one that Dr. Macnab is qualified to be admitted as an expert who can testify as to the minimum standard of care applicable to a physician managing the care of infants including well-baby examinations, serial measurement of growth parameters including head circumference, and the use and interpretation of these measurements with values on standardized growth charts during the relevant time period.
The Gatekeeper Analysis
The fact that Dr. Macnab is qualified as an expert does not end the analysis. I must still consider whether to admit his evidence in the exercise of my gatekeeper function.
This second gatekeeping function has been described in various ways. In R. v. Abbey, 2009 ONCA 624, 246 C.C.C. (3d) 301, at para. 76, Doherty J. A. described it as a test to determine whether the evidence is “sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that might flow from the admission of expert evidence.” The Supreme Court of Canada described it in a similar manner in Mohan, at p. 21 and R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47.
Moreover, Doherty J. A. further described the function as follows, at para. 79, in Abbey:
The “gatekeeper” inquiry does not involve the application of bright line rules, but instead requires an exercise of judicial discretion. The trial judge must identify and weigh competing considerations to decide whether on balance those considerations favour the admissibility of the evidence. This cost-benefit analysis is case-specific and, unlike the first phase of the admissibility inquiry, often does not admit of a straightforward “yes” or “no” answer. Different trial judges, properly applying the relevant principles in the exercise of their discretion, could in some situations come to different conclusions on admissibility.
The dangers of admitting expert evidence include time, prejudice, confusion, the danger a jury will be unable to make an effective and critical assessment of the evidence, the complexity of the material underlying the opinion, the expert’s impressive credentials, the impenetrable jargon in which the opinion is wrapped, and the cross examiner’s inability to expose the opinion’s shortcomings. There is a risk that a jury faced with a well presented opinion may abdicate its fact-finding role on the assumption that a person labelled as an expert knows more about his or her area of practice than members of the jury do: Abbey, at para. 90.
Like the application of the first step of the analysis when considering whether to admit expert evidence, the application of the second step has also evolved considerably since the mid-1990s. Since then, the trial judge’s gatekeeper function has been considerably enhanced. Appellate courts have emphasized the important role of judges as gatekeepers to screen out evidence whose value does not justify the risk of the prejudice it may create: White Burgess at paras. 16 and 20.
To demonstrate the seriousness of the gatekeeper function, reference may be had to Alakoozi Estate v. Hospital for Sick Children, 2004 CanLII 8394 (ON CA), 187 O.A.C. 187 (Ont. C.A.), where the trial judge refused to admit the plaintiff’s expert even though doing so deprived the plaintiff of any evidence about standard of care and therefore caused the plaintiff to lose the case.
All cases must, however, be read in their full context. As the Court of Appeal noted in Abbey, the gatekeeper analysis is always case-specific. In Alakoozi, the plaintiff proposed to call a hematologist to opine on the standard of care to which ear nose and throat specialists and surgeons should be held. Alakoozi does not appear to have involved issues as basic as is asserted here. Nevertheless, Alakoozi remains directionally relevant in that it demonstrates that courts must exclude evidence that does not pass the gatekeeper test, even if doing so means the plaintiff’s action will fail.
I turn then to the application of these principles.
The defendants submit that prejudice caused by Dr. Macnab’s evidence about Dr. Conley outweighs its benefits because his evidence is:
a. repetitive and duplicative; and
b. abdicates the gatekeeping function.
Repetitive and Duplicative
The defendants submit that having Dr. Macnab provide evidence on the standard of care would result in needless duplication of evidence at trial. They claim that there is no necessity for his evidence and it should therefore not be admitted. In support of this submission, they point to the fact that the plaintiffs have three family physicians expected to attend court to provide expert testimony.
The plaintiffs submit that Dr. Macnab is the first expert witness called and if his evidence is permitted on the issue of standard of care, they may choose not to call one or more of the other proposed expert witnesses on this issue.
The issue of necessity does not relate to the number of expert witnesses called – or to duplication – but to the complexity of the evidence and the need for an expert to provide necessary assistance to the trier of fact.
As for duplication, while this may arise as an issue, Dr. Macnab is the first expert witness proposed. To date, there is no issue with duplicity. If the plaintiffs seek to introduce three further experts on this issue then duplication will arise. But at this time – the plaintiffs have the right to choose their own expert if that expert is properly qualified and his evidence is admissible.
Further, although not raised by the defendants before me, I note a number of cases in which courts have rejected expert medical evidence because it duplicated other evidence the party intended to lead: see Suwary (Litigation guardian of) v. Women's College Hospital, [2009] O.J. No. 553 (S.C.J.); Kulyk v. Cramp, 2014 ONSC 5354; and Gorman v. Powell, 2006 CarswellOnt 6536 (S.C.J.).
Those cases are, however, distinguishable. All three involved true duplication in the sense that a party sought to introduce evidence from two experts with the same specialization who would be repeating each other’s evidence.
Dr. Macnab is the only pediatric specialist intended to be called on the issue of standard of care, which, as I have noted, will be restricted to the minimum standard expected of a physician. The simple fact that two experts may be testifying to the same issue does not automatically result in duplication of the sort that warrants exclusion under the gatekeeper function.
There is no prohibition against duplication. The case law prohibits undue duplication.
Abdicating the Gatekeeping Function
The defendants submit that, if I allow Dr. Macnab to testify about the standard of care applicable to family physicians this would amount to abdicating my gatekeeping function.
I cannot accept this argument. Any analysis of the gatekeeping function must be case-specific: Abbey, at para. 79. It would not be in the interests of justice to deprive the plaintiffs of the ability to make out their case as they choose because of a fear that others in future trials might try to misuse principles applicable to the admission of expert evidence.
In Abbey, the Court of Appeal pointed to a number of other factors to which the trial judge should be alive when exercising the gatekeeper function. These include confusion, the complexity of the material, impenetrable jargon and a cross examiner’s inability to expose shortcomings in the expert’s evidence: Abbey, at para. 90. Although the defendants did not raise these factors explicitly, they are implicit in many of their submissions and ought to be considered.
While noting these factors, the Court of Appeal also indicated that “the trial judge as gatekeeper must go beyond truisms about the risks inherent in expert evidence and come to grips with those risks as they apply to the circumstance of the individual case”: Abbey, at para. 92.
The nature of the evidence that Dr. Macnab shall be permitted to give about the standard of care of physicians does not appear to be such that it would cause confusion among jurors.
Based on his testimony, Dr. Macnab relies upon a standard of care that he claims is a basic trend disciplinary skill for all physicians. Specifically, the standard of care applicable to well-baby checkups, and in particular, assessment and measurements of head circumference and the way in which physicians use the measurements and charts, is stated to be a basic trend disciplinary skill.
These concepts are not particularly complex, do not involve impenetrable jargon and are relatively easy subjects on which to cross-examine. Jurors are likely to be familiar with well-baby checkups, assessments, measurements and the plotting of such measurements on charts. Physicians’ abilities to follow changes in the measurements and their use of charts to plot and compare the serial measurements to benchmarks of normal or abnormal readings are well within the competence of the ordinary juror.
As a result, the contested evidence from Dr. Macnab does not give rise to concerns of juror confusion.
For the foregoing reasons, I decline to exercise my discretion to exclude Dr. Macnab’s evidence about the standard of care applicable to all physicians, and in particular, Dr. Conley under the gatekeeper function. In my view, the benefit of admitting that evidence to allow the plaintiffs to present their theory of the case far exceeds any prejudice to the defendants. To deprive the plaintiffs of the ability of introducing this evidence would, in my view, impair the jury’s ability to do justice in the case because it deprives them of evidence that is important to understand the plaintiffs’ claim.
CONCLUSION
- Dr. Macnab will be admitted as an expert in pediatrics and neonatology and shall be permitted to give evidence on:
a. The minimum standard of care expected for physicians in the care and management of infants including well-baby checkups, examinations and assessments, serial measurements of head circumference and the use and purpose of charts relating to the measurements; and
b. Causation of Cole Parliament’s brain injury.
- As neither counsel had the opportunity to make submissions with respect to the precise wording to be applied to the “standard of care” issue – counsel may make submissions to me regarding the proposed wording noted above at paragraph 70.
Woodley, J.
Date: May 17, 2019