Court File and Parties

Court File No.: 00-CV-199551 Date: 2019-10-17 Superior Court of Justice - Ontario

Re: REGINALD BARKER, JEAN-PAUL BELEC, ERIC BETHUNE (formerly Jean-Jacque Berthiaume), JOSEPH BONNER, WILLIAM BRENNAN by the Estate Trustee MAXWELL BRENNAN, STEPHEN CARSON, ROY DALE, MAURICE DESROCHERS by the Estate Trustee LORRAINE DESROCHERS, DONALD EVERINGHAM, JOHN FINLAYSON, ROBERT FROST, TERRY GHETTI, BRUCE HAMILL, ELDON HARDY, WILLIAM HAWBOLDT by the Estate Trustee BARBARA BROCKLEY, DANNY A. JOANISSE, RUSS JOHNSON, STANLEY KIERSTEAD, DENIS LEPAGE, CHRISTIAN MAGEE, DOUGLAS McCAUL, BRIAN FLOYD McINNES, ALLEN McMANN, LEEFORD MILLER, JAMES MOTHERALL by the Estate Trustees DEBORAH KAREN MOROZ and JANE ALEXIS MARION, MICHAEL ROGER PINET, EDWIN SEVELS, SAMUEL FREDERICK CHARLES SHEPHERD and SHAUNA TAYLOR (formerly Vance H. Egglestone), Plaintiffs

– AND –

ELLIOTT THOMPSON BARKER, GARY J. MAIER and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, Defendants

Before: E.M. Morgan J.

Counsel: Peter Jervis, Joel Rochon and Golnaz Nayerahmadi, for the Plaintiffs Sam Rogers, Meghan Bridges, and Bonnie Greenaway, for the Defendants, Elliot Thompson Barker and Gary J. Maier Sara Blake, Meagan Williams, and Ann Christian-Brown, for the Defendant, Her Majesty the Queen in Right of Ontario

Heard: October 22, 2019

EXPERT WITNESS AND LITIGATION PRIVILEGE

[1] In this voir dire the Plaintiffs challenge the qualification of Dr. Stephen Hucker as an expert witness. The Defendants seek to qualify him as an expert forensic psychiatrist, to give opinion evidence with respect to: a) standards for treatment of patients in maximum security mental health centre in 60s and 70s; b) informed consent to treatment for patients in those centres at that time; and c) standard of care and causation with respect to six of the Plaintiffs.

[2] This challenge comes as something of a surprise since on their face Dr. Hucker’s credentials are precisely within the area of expertise required in this case.

[3] After training and qualifying as a physician in England in the 1970s, Dr. Hucker came to University of Toronto as a faculty member and practiced at the Clarke Institute of Psychiatry after that and through to the 1990s. In 1993 he became Chair of Psychiatry at Queens University, and in 1998 joined McMaster University and became head of the forensic service at St. Joseph’s Healthcare Centre until 2005 when he re-joined University of Toronto and became a full professor of Psychiatry in 1998. Has spent much of his career teaching psychiatry students on the subject of treatment of psychopathy and other related topics.

[4] Dr. Hucker has been a member of the Ontario Review Board since 1996. He has a long list of professional honors, including having won the Bruno Cormier award for outstanding contributions to forensic psychiatry. Since 1998 he has been on the consulting staff at CAMH. He has consulted extensively over the years as a forensic psychiatrist for Corrections Canada, doing Parole Board reports and clinical work in prisons. He has previously been qualified to provide expert evidence to Canadian courts in both criminal and civil matters.

[5] Dr. Hucker has also been a consultant for the Ontario Ministry of Health, including, most importantly, in 1984-85, as chair of the Oak Ridge review committee. He also did an investigation and report with respect to allegations of patient abuse at Penetanguishene in the early 1980s as a prelude to the wider 1985 Report.

[6] As Defendants’ counsel points out, Dr. Hucker is the only expert offered in this case who can opine on standard of care issues having actually visited and observed Oak Ridge at a point in time at least close to, if not precisely within, the time period at issue in this trial. He therefore meets the test of necessity even though other standard of care experts have already been qualified and have testified.

[7] The Plaintiffs’ challenge is based on concerns with respect to Dr. Hucker’s independence. These concerns are based on their late-in-the-day discovery of an expert report that Dr. Hucker wrote dated August 19, 2002, relating to an earlier stage of this action. Dr. Hucker was an expert for the Defendants in the certification hearing in 2003. In that proceeding he filed a report dated April 28, 2003. That 2003 Report was in the record before Cullity J. at the certification motion. The 2002 Report, which is on the same topic and is signed by Dr. Hucker, was never disclosed to Plaintiffs’ counsel at the time and was not before Justice Cullity or in the court record at the time.

[8] Plaintiffs’ counsel found the 2002 Report very recently in going through a large quantity (thousands of pages, apparently) of material disclosed by Def’s counsel in discovery prior to this trial. This material was described by Defendants’ counsel as the documentation given to Dr. Hucker to review in preparation for his expert report to be submitted in the present trial. Dr. Hucker’s new, April 3, 2019 Report is in the record for this voir dire. It has been brought up to date, but in substance is largely similar to Dr. Hucker’s 2003 Report.

[9] Plaintiffs’ counsel in cross-examining Dr. Hucker in the voir dire have spent considerable time and effort demonstrating that the previously undisclosed 2002 Report is in important ways very different from the 2003 and 2019 Reports. They have brought out that its conclusions are arguably far more favorable to the Plaintiffs than the conclusions in the later two reports, and that it is much closer to the analysis and conclusions reached by Dr. Hucker and his colleagues in writing their 1985 Report on Oak Ridge for the government of Ontario. Plaintiffs’ counsel submit that the existence of the 2002 Report, and the suggestion that it was buried and re-written to better conform to the theory of the Defendants’ case, effectively disqualifies Dr. Hucker as an independent witness.

[10] For reasons which will become obvious, I will not go into the details of the cross-examination or the strength of the various reports at this stage. Neither will I comment on Dr. Hucker’s credibility here. These have all been the subject of great challenge by Plaintiffs’ counsel and are worthy of serious consideration. However, it is more appropriate that I wait until my judgment on the merits to make comments in that regard.

[11] Suffice it to say that the Plaintiffs submit, and a comparison of the reports demonstrates, that there are changes to the substance of Dr. Hucker’s Reports between 2002 and 2003. Those changes had to do with important areas such as the question of informed consent, whether there was coercion of patients at Oak Ridge, whether the programs at issue were experimental, and the analysis of the standard of care issues that arise in this litigation.

[12] Defendants’ counsel characterizes the 2002 Report as a draft and explains that it was inadvertently disclosed. Now that the Plaintiffs have it, Defendants counsel submits that it does not disqualify Dr. Hucker but rather that it can serve as a basis on which to cross-examine him. Defendants counsel observes that far from prejudicing the Plaintiffs, this incident works to their advantage in that they have been provided with material for cross-examination that they would not otherwise have. In effect, Defendants’ position is that they were not obliged to disclose the 2002 Report to Plaintiffs’ counsel, but now that they have it they can use it.

[13] I should say parenthetically that counsel for the Defendant doctors today are not the same counsel as had carriage of the case in 2003. That is, the law firm is the same, but this is already a multi-generational case. Justice Cullity has retired in the meantime and the Defendant doctors’ law firm has had a changing of the guard as well.

[14] In any case, Defendants’ counsel says that the 2002 Report is a draft inadvertently disclosed. They say this not because they now know what the 2002 Report really was or what its origins are, but because that is what it looks like. They explain that even though it appears polished and complete, and contains Dr. Hucker’s signature, it is obviously a first draft that was eventually replaced by the 2003 Report as the final draft.

[15] I am not sure exactly what the 2002 Report was in its day. On one hand, Defendants’ counsel’s explanation makes sense. Why else would there be two Reports by Dr. Hucker for the same certification motion? Dr. Hucker had no specific recollection of how this transpired, but he might well have signed his first draft only to be told some months later that it should be edited or partly re-written. The early signed version would have become a prior draft once it was revised.

[16] On the other hand, Plaintiffs’ counsel make the point that if that is the case, the 2003 “final draft” Report must have been dictated to Dr. Hucker by counsel. They submit that the 2003 Report changed not only in wording from the 2002 Report, but, as described above, in substantive analysis and conclusions.

[17] There is something unusual about the Defendants’ response to the Plaintiffs’ argument. If the 2002 Report was an early draft report that was mistakenly disclosed, one would expect Defendants’ counsel to say that it is covered by litigation privilege. In that case, they would likely argue that the Plaintiffs should not be able to seize upon this obvious mistake and take advantage of it. But that is not the Defendants’ position. Rather, they are content to have the 2002 Report in the record as if it belonged there all along, and to have Plaintiffs’ counsel use it in their cross-examination of Dr. Hucker. That suggests that it was really something other than an early draft of the 2003 Report, and that it might not have been covered by privilege all along.

[18] In R v Abbey, 2017 ONCA 640, paras 48-49, Laskin JA provided an excellent summary of the law with respect to qualifying an expert witness:

[48] The test may be summarized as follows:

Expert evidence is admissible when:

(1) It meets the threshold requirements of admissibility, which are:

a. The evidence must be logically relevant;

b. The evidence must be necessary to assist the trier of fact;

c. The evidence must not be subject to any other exclusionary rule;

d. The expert must be properly qualified, which includes the requirement that the expert be willing and able to fulfil the expert’s duty to the court to provide evidence that is:

i. Impartial,

ii. Independent, and

iii. Unbiased.

e. For opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable for that purpose,

and

(2) The trial judge, in a gatekeeper role, determines that the benefits of admitting the evidence outweigh its potential risks, considering such factors as:

a. Legal relevance,

b. Necessity,

c. Reliability, and

d. Absence of bias.

[49] In short, if the proposed expert evidence does not meet the threshold requirements for admissibility it is excluded. If it does meet the threshold requirements, the trial judge then has a gatekeeper function. The trial judge must be satisfied that the benefits of admitting the evidence outweigh the costs of its admission. If the trial judge is so satisfied then the expert evidence may be admitted; if the trial judge is not so satisfied the evidence will be excluded even though it has met the threshold requirements.

[19] For present purposes, the most relevant part of the test was emphasized by the Supreme Court of Canada in White Burgess Langelle Inman v Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182, para 32: “[I]t must be independent in the sense that it is the product of the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation…. The acid test is whether the expert’s opinion would not change regardless of which party retained him or her.”

[20] In analyzing an expert’s qualifications, the Court of Appeal has also recognized that an expert may need help from counsel in framing and articulating his or her opinion. Plaintiffs’ counsel contends, however, that in Dr. Hucker’s case it is more a matter of actually re-crafting the essence of the Report rather than editing it for language and presentation. In Carmen Alfano Family Trust v Piersanti, 2012 ONCA 297, para 108, the Court addressed this kind of issue by observing that, “It is not helpful to a court to have an expert simply parrot the position of the retaining client. Courts require more… The fundamental principle in cases involving qualifications of experts is that the expert, although retained by the clients, assists the court.” In other words, an expert who is an advocate for the side that hired him or her does not provide the right kind of assistance.

[21] More specific guidance was provided by the Court of Appeal in Moore v Getahun, (2015) 2015 ONCA 55, 124 OR (3d) 321 (Ont CA). At para 63, the Court set out the parameters of legitimate collaboration between counsel and expert:

Consultation and collaboration between counsel and expert witnesses is essential to ensure that the expert witness understands the duties…contained in the Form 53 acknowledgment of expert’s duty. Reviewing a draft report enables counsel to ensure that the report (i) complies with the Rules of Civil Procedure and the rules of evidence, (ii) addresses and is restricted to the relevant issues and (iii) is written in a manner and style that is accessible and comprehensible. Counsel need to ensure that the expert witness understands matters such as the difference between the legal burden of proof and scientific certainty, the need to clarify the facts and assumptions underlying the expert’s opinion, the need to confine the report to matters within the expert witness’s area of expertise and the need to avoid usurping the court’s function as the ultimate arbiter of the issues.

[22] The Court also put the question of litigation privilege in context, and placed an important, principled restriction on its ambit [at paras 77-78]:

In my view, the ends of justice do not permit litigation privilege to be used to shield improper conduct. As I have already mentioned, it is common ground on this appeal that it is wrong for counsel to interfere with an expert’s duties of independence and objectivity…

Absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, a party should not be allowed to demand production of draft reports or notes of interactions between counsel and an expert witness. Evidence of an hour and a half conference call plainly does not meet the threshold of constituting a factual foundation for an allegation of improper influence.

[23] Plaintiffs’ counsel are quite forceful in submitting that there is far more than a conversation with counsel evident in the changes from Dr Hucker’s 2002 Report to his 2003 Report (and, flowing from that, to his 2019 Report). They point to the substantive changes I have already mentioned, as well as to some ‘factum-like’ language inserted into the later Reports that was not present in the 2002 Report. They read these changes as reflecting an effort to make the later Reports correspond neatly to the legal position of the Defendants.

[24] Without opining at this stage on the credibility or the cogency of any of Dr. Hucker’s reports, I would say that there is enough of a suggestion in the change from 2002 to 2003 to make the 2002 Report disclosable to the opposing side if it had not already been mistakenly disclosed, as the Defendants say. Even if the 2002 Report is a prior draft and otherwise would have been subject to litigation privilege, it is different enough from the subsequent iterations of Dr. Hucker’s reports in ways central to the issues in the litigation. Its cloak of protection would have been removed and it would have been ordered to be disclosed had the circumstances arisen differently.

[25] As a result, I can agree with Defendants’ counsel that this looks like a prior draft that might have been inadvertently disclosed when the new generation of counsel took over. And at the same time, I can agree with Plaintiffs’ counsel that it nevertheless should fairly be in their hands for use in cross-examining Dr. Hucker.

[26] Litigation privilege would not shield the 2002 Report from production. That issue is, of course, different from an evaluation of the 2002 Report (or of any of Dr. Hucker’s reports or his testimony). As the Court of Appeal said, the lifting of privilege is based on the existence of grounds raising a suspicion that counsel may have unduly introduced their own views into the expert report. It does not inevitably dictate any specific conclusion with respect to the strength or credibility of the expert’s reports or testimony. As indicated earlier, I have reserved any assessment of the cogency or credibility of Dr. Hucker’s reports and testimony for my judgment on the merits at the end of the trial.

[27] With that, I am content to allow Dr. Hucker to testify as an expert at trial. There is enough suspicion about the differences between his 2002 Report and his 2003 Report to have them both produced in the record along with his 2019 Report. With that, Dr. Hucker still meets the threshold qualifications of an expert, and although a suspicion has been raised I do not find sufficient grounds on which to exercise my gatekeeping function in respect of his independence. Dr. Hucker is qualified to give opinion evidence to this court as set out in paragraph 1 above.

[28] This is a hybrid trial in which the experts have produced reports which constitute the bulk of their evidence in chief. Dr. Hucker’s 2019 Report will play that role. He can be cross-examined in the usual course, including on any contradictions between his current report and his 2002 Report or any other of his reports and writings.

[29] Counsel have indicated that they are content to treat this as a blended voir dire. To the extent that Dr. Hucker’s testimony either in chief or in cross-examination has been covered in the voir dire, it will now form part of the trial record and need not be repeated.

Morgan J.

Date: October 23, 2019