COURT FILE NO.: FS-18-2842-00
DATE: 20191213
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: A.P.
AND:
L.K.
BEFORE: J.T. Akbarali J.
COUNSEL: Caroline Kim for the Appellant
Andrew Faith and Emma Carver for the Respondent
HEARD: November 12, 2019
PUBLICATION BAN
A non-publication order in this proceeding has been issued pursuant to the common law powers of a judge by the Superior Court of Justice and the considerations outlined by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, prohibiting the publication of:
a) any evidence or information that may identify the children, including their names, dates of birth, address(es), school(s), genders, images, or voices, but not including their ages or initials;
b) any evidence or information about the children’s health except for the fact that they are unvaccinated;
c) any evidence or information that may identify the parties, including their names, voices, and images, but not including their genders or initials.
ENDORSEMENT
Overview
[1] This proceeding is an appeal from the decision of an arbitrator, in which the arbitrator declined to order that the parties’ two children be vaccinated. The parties to this appeal each bring motions seeking to introduce fresh evidence on appeal. Unusually, the parties sought, and obtained, an order severing the motions for fresh evidence from the appeal. The appeal has not yet been argued. These reasons thus deal only with the motions for fresh evidence.
Background
[2] The parties have two children: N.P., who is currently 13.5 years old, and M.P. who is currently 9 years old. The children have never been vaccinated.
[3] The parties separated on January 8, 2013. At that time, the children were six and two years old.
[4] On July 18, 2015, the parties entered into Minutes of Settlement, which resolved many issues, but not the question of whether to vaccinate the children. The appellant father is in favour of vaccination. The respondent mother opposes vaccination. The parties agreed in their Minutes of Settlement to mediation/arbitration as a dispute resolution mechanism.
[5] Unfortunately, mediation failed. On January 23, 2017, the parties signed an Arbitration Agreement with Arbitrator Fogelman to deal with the issues articulated in the Separation Agreement. The main issue in dispute was the children’s vaccination status.
[6] At the arbitration, the mother was represented by her prior counsel. The father was self-represented. The arbitration was originally scheduled to last two days: June 27 and June 30, 2017. The parties did not conclude the arbitration in that time. As a result, the arbitration continued on September 15, 2017.
[7] In his final award dated April 11, 2018, the arbitrator did not make an award that the children become vaccinated.
[8] The father filed a Notice of Appeal to this court within the time frame required to appeal. For the purposes of these motions, it suffices to note that, in his Notice of Appeal, the father seeks an order that the children be vaccinated as soon as possible. He alleges that the arbitrator erred in failing to admit and consider all relevant evidence, including evidence the father sought to admit from an expert, the arbitrator unreasonably placed great weight on the mother’s expert evidence without a proper evidentiary foundation, and the arbitrator made errors of fact with respect to his conclusions about the risks of vaccines, and in particular, the risk to the children from vaccines.
[9] The father did not take steps to perfect his appeal. He subsequently obtained the assistance of pro bono counsel. The mother consented to an extension of time for the father to perfect his appeal.
[10] In an endorsement dated June 28, 2019, I ordered a publication ban in this appeal and defined its scope. The ban included a temporary, without prejudice, publication ban with respect to any health information related to the children, except the fact that they are unvaccinated, which may be published. I directed that the issue of this temporary, without prejudice ban be returned before me on November 12, 2019, to be heard together with the parties’ motions for fresh evidence.
[11] Each party brings a motion seeking to admit fresh evidence. The father seeks to admit portions of his affidavit filed on his motion to extend the time to perfect his appeal. He also seeks to admit evidence from three proposed experts on the topic of vaccines. At the outset, I note that two of these experts have sworn affidavits while the third has delivered a report. I assume that, if I grant the request to file fresh evidence, the expert report will be appended to an affidavit and be appropriately sworn.
[12] The mother seeks to admit an affidavit of the children’s family doctor, Dr. Pham. Dr. Pham testified at the arbitration. In some respects, the affidavit updates the evidence she gave at that time. In other respects, it offers new evidence.
[13] I will describe the evidence proffered as fresh evidence in greater detail later in these reasons.
Issues
[14] The issues which I must address can be described as follows:
a. Is some or all of the evidence proffered by the father admissible as fresh evidence on appeal?
b. Is some or all of the evidence proffered by the mother admissible as fresh evidence on appeal?
c. Should any changes be made to the temporary publication ban I ordered with respect to the children’s health information, particularly in view of the fresh evidence offered in these motions?
[15] Before analyzing whether the parties’ proposed fresh evidence, or some it, shall be admitted on appeal, I begin with a review of the relevant law relating to the admission of fresh evidence on appeal.
Legal Principles Applicable to a Motion to Admit Fresh Evidence
[16] Rule 38(29) of the Family Law Rules, O. Reg. 114/99, allows the court to admit fresh evidence on appeal under s. 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C. 43. Section 134(4)(b) of the Courts of Justice Act provides:
(4) Unless otherwise provided, a court to which an appeal is taken may, in a proper case, …
(b) receive further evidence by affidavit, transcript or oral examination, oral examination before the court or in such other manner as the court directs; …
to enable the court to determine the appeal
[17] The admission of fresh evidence is a discretionary decision to be made considering the factors set out by the Supreme Court of Canada in Palmer v. R., 1979 8 (SCC), [1980] 1 S.C.R. 759, 1979 CarswellBC 533, at para. 22:
a. The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;
b. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
c. The evidence must be credible in the sense that it is reasonably capable of belief;
d. The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[18] In family law cases where there are issues involving children, the Palmer test is relaxed so that the court can discharge its obligation to consider the best interests of the children: Salehi v. Tawoosi, 2016 ONCA 986 at para. 21; Children’s Aid Society of the Niagara Region v. A.C., 2018 ONSC 1111 (Div. Ct.), at para. 28; Fernandes v. Darrigo, 2018 ONSC 1039 (Div. Ct.) at paras. 11-16.
[19] Allowing for flexibility in the application of the Palmer test where the welfare of a child is at stake is consistent with the need for up-to-date information about children and is thus in line with the overarching criterion for admission, namely, the interests of justice: E.(H.) v. M.(M.), 2015 ONCA 813, at para. 71.
[20] The mother argues that the Palmer criterion is only relaxed in cases where the fresh evidence addresses the most current information possible that is relevant to the child’s best interests, to recognize “the inevitable fluidity in a child’s development”: Goldman v. Kudelya, 2017 ONCA 300, at paras. 25, 28. I agree that the need to have current information about the condition, means, needs, circumstances and well-being of the child is a reason for the more flexible application of the Palmer criteria in cases involving children.
[21] However, in other jurisprudence from the Court of Appeal, fresh evidence has been allowed even where it was available at trial. In particular, the first criterion of the Palmer test – the due diligence criterion – will yield where its rigid application might lead to a miscarriage of justice, thus permitting evidence that would have been available at trial to be admitted on appeal: Children’s Aid Society of Halton (Region) v. A.(K.L.), 2006 33538 (ON CA), 2006 CarswellOnt 5997 (C.A.), at para. 56; Ojeikere v. Ojeikere, 2018 ONCA 372, at paras. 41, 49; Fernandes, at para. 11-16.
[22] Put another way, fresh evidence in appeals where the issues involve children may be admitted to provide the court with current information about the child(ren), or because the welfare of the child(ren) is at stake, and the fresh evidence is required in the interests of justice.
[23] This conclusion is consistent with jurisprudence from the Supreme Court of Canada in the criminal context. In R. v. Warsing, 1998 775 (SCC), 1998 CarswellBC 2670 (S.C.C.), at para. 56, the court held that a failure to meet the due diligence requirement should not override accomplishing a just result.
[24] Moreover, as the Court of Appeal recently held, “the due diligence factor is not a rigid one and must be considered in light of all the relevant facts, including the salient fact that the appellant was unrepresented…”: Re Kuczera, 2018 ONCA 322, at para. 16.
[25] The mother relies on a series of cases to argue that the father’s self-represented status does not mean he is entitled to ignore rules of procedure: see, for example, 0927613 B.C. Ltd. v. 0941187 B.C., 2015 BCCA 457, at para. 64; Otte v. Manitoba, 2008 MBCA 63, at paras. 12-13; Kainz v. Potter, 2006 20532 (ON SC), [2006] O.J. No. 2441 (S.C.) at para. 64; Pezzolesi v. Skeggs 2011 ONCA 253, at para. 1.
[26] While I accept the general proposition that a self-represented party cannot expect special treatment, or that self-represented status alone does not entitle a litigant to admit fresh evidence on appeal for a second bite at the cherry, the analysis is more nuanced than the mother suggests, and particularly in cases involving children’s welfare. In my view, there is nothing inconsistent between the cases relied upon by the mother and the more recent decision of the Court of Appeal in Re Kuczera that allows an appellate court to consider the due diligence factor of the Palmer test in the context of all the facts, including the fact that a litigant was self-represented.
[27] However, even on a relaxed application of the Palmer criteria, absent a miscarriage of justice, a litigant is not entitled to, as a tactic, ignore putting forward available evidence at trial that he believes goes to the best interests of a child and then attempt to resurrect his case from an unfavourable ruling by proffering evidence that could have been available at trial on appeal: J.D.G. v. S.L.G., 2017 MBCA 117, at para. 39.
The Father’s Motion for Fresh Evidence
[28] The father seeks to introduce evidence from three proposed experts and portions of one of his affidavits filed on an earlier motion. To understand how this evidence fits into the appeal as a whole, it is necessary to understand the evidence led at the arbitration. I note that, in addition to receiving counsel’s very helpful arguments on this motion, I have reviewed the arbitration transcripts in their entirety.
The Evidence Led at the Arbitration
[29] The mother delivered two expert reports from proposed experts who testified at the arbitration: Dr. Toni Bark and Dr. Shiv Chopra. The arbitrator set a timeline by which the mother’s reports were to have been delivered at least 30 days in advance of the arbitration to allow the father time to deliver responding reports. Her reports were delivered late, 13 and 11 days in advance of the arbitration. The father had no responding report by the time the arbitration commenced. The late delivery of the reports is not addressed in the transcript. The father did not seek an adjournment of the arbitration.
[30] The mother presented her case at arbitration first. It is not possible, in these reasons, to summarize fully the evidence given by all of her witnesses. Instead, I identify key aspects of evidence given by the mother’s witnesses which relate to the issues under appeal in respect of which the proposed fresh evidence is offered.
The Mother’s First Witness: Dr. Toni Bark
[31] The mother’s first witness was Dr. Toni Bark. At the outset of the arbitration, the mother’s counsel identified that the purpose of calling her was to offer her as an expert. She was identified as a physician, and counsel suggested “she is an expert in pediatrics and the area of vaccinations”.
[32] The mother’s counsel examined Dr. Bark on her qualifications. I note that Dr. Bark described her work in the field of vaccines using the following phrases:
a. She “wrote papers” on her conclusion that “every meta-analysis on the flu shot was not good”.
b. She wrote about conflict of interest at the Food and Drug Administration and the Centers for Disease Control and Prevention.
c. Her experience with vaccines extends beyond the conflict of interest question to the benefits and risks of vaccinations.
d. When asked if she was published in the area, she responded, “Yes. I am, and it depends on what you mean by published”. She contributed to a book that was edited by a law professor at NYU called “Vaccine Epidemic”. She wrote about the mandatory flu shots for health care workers, and she has published an article and analyzed work data on the Gardasil HPV vaccine with a senior researcher at MIT in artificial intelligence. It is not clear from Dr. Bark’s response whether the article is about the HPV data she analyzed, or if they are two separate matters.
e. With respect to the analysis of HPV data, Dr. Bark stated the following about a researcher named Chris Shaw, who was involved with the HPV data analysis as well:
Chris Shaw is one of the contributors on that paper with me, and they’re researchers at the medical school at the University of Vancouver, British Columbia, and he analyzed and published a paper on the data and how their placebo for the papillomavirus virus was not actually an inert placebo but a new one tested and given multiple times to and looking at the death rates in both were quite high and that was a small paper. I think that is all I am published in.
It is not clear to me from the above response whether Dr. Bark was also involved in this work of Chris Shaw’s on the papillomavirus or whether she was referring to separate research experience of Chris Shaw.
f. Dr. Bark’s curriculum vitae references two publications: “How to Keep Healthy: Colds and Flu” which appears to be an article about women’s health published in 2000, and “How to Stay Fertile Longer” which also appears to be an article about women’s health, published in 2002.
g. Dr. Bark’s curriculum vitae also references two books in addition to “Vaccine Epidemic”. The first is called “Alternative Medicine” and appears to be a University of Chicago Medical School text (unnamed) to which she was a contributing author in spring 2005 and fall 2007. The second is a chapter on homeopathy in a University of Chicago Medical School text (also unnamed) from 2005.
h. Dr. Bark testified that she is an educator in the field of vaccinology and conflicts of interest. She was an adjunct professor for a year and has guest lectured on a course on medical ethics. She spoke in Spokane on a conference called “The Future of Immunity”. She has also spoken in non-academic settings.
i. Dr. Bark was asked where her education comes from in terms of her knowledge of vaccination and the risks. She responded:
It’s had to be truly self taught and taught also in groups. So I am part of a few groups with other MDs and PhDs, and we have lawyers and journalists working with us, but we analyze articles and mostly the articles that the drug companies publish, which most doctors don’t normally read. I mean, they read the synopsis but we look at the raw data in more detail and look at the trials within, the vaccine trials and MD trials within this case, and so it’s really been self taught at this point and group taught with other researchers and scientists who wind up doing this.
[33] The father did some limited cross-examination of Dr. Bark. He deposes that after being told his questions were improper, he gave up challenging her expertise.
[34] During the cross-examination he did conduct, the father asked Dr. Bark if she was familiar with NACI. She indicated she was not. When the father explained NACI is the National Advisory Committee on Immunization, she indicated she did not know the names of the committees. Her answer is not clear as to whether, having been prompted with NACI’s full name, she was aware of the organization.
[35] The father also referred to Dr. Bark’s website for her clinic and asked her to confirm there is no mention among her credentials that she is an expert on vaccination. Dr. Bark confirmed “there is no credential.” She stated she does not mention everything on her web page.
[36] The mother’s counsel asked the Arbitrator to qualify Dr. Bark as an expert in the area of pediatrics and vaccinology. The following exchange occurred:
Arbitrator: I will accept the witness as an expert. My question is: In discussing your area, you’re focused on the flu and on the HPV, neither of which may not be as significant in play in this case. Do you have expertise in research in other or main vaccinations for children?
Dr. Bark: I do.
Arbitrator: And you have researched those as well?
Dr. Bark: I have.
Arbitrator: Go ahead.
[37] Dr. Bark opined about the risks of vaccinations including the inadequate identification of the risks of placebos that vaccines are tested against, and the toxins and adjuvants that are present in the vaccines and the damage they can do.
[38] The arbitrator, having discussed some of Dr. Bark’s evidence and noting that Dr. Bark reviewed in detail each vaccination that forms part of government protocols, noted Dr. Bark’s conclusion that the risks of each vaccination outweighs its benefits. He described Dr. Bark’s evidence at length about DTAP, HPV, MMP, polio and Hepatitis A and B. He noted Dr. Bark’s evidence that there can be large doses of mercury and other harmful toxins, including aluminum, which can cause neural damage, in many, if not all, of the common vaccines.
[39] The arbitrator noted that the father did not call any expert in reply. He stated “I strongly suspect that for every anti-vaccination proponent there is an equally fervent opposite party. As I have previously stated, my role is not to determine the efficacy of the Canadian vaccination system or to make findings on the correctness of the evidence of Dr. Bark.” Rather, he stated that his role was to determine whether the parties’ two children ought to be vaccinated.
[40] The arbitrator then said:
What was most compelling to me from the evidence of Dr. Bark was the following. [The mother] has a certain genetic variation wherein her body does not produce specific enzymes needed to detoxify certain toxins. In her report Dr. Bark states “[The mother] tested homozygous for a genetic SNIP variation which leaves her challenged in terms of methylation cycle and hence detoxification abilities. This is pertinent because her homozygous status translates to her sons being heterozygous at best and possibly homozygous as well.”
[41] The arbitrator then concluded that vaccinations pose a greater risk to the parties’ children than to other children due to the possibility that they may also have limits on their ability to detoxify the toxins within most vaccines.
[42] The arbitrator also noted Dr. Bark’s evidence that it was unsafe to administer a bundle of vaccines at once or to catch up on missed vaccines. He noted Dr. Bark’s conclusion that the risks of introducing vaccinations to the children at this stage were too high when measured against the potential benefits.
The Mother’s Second Witness: Dr. Shiv Chopra
[43] Dr. Chopra was the mother’s other proposed expert witness. The father advised the arbitrator that he had no objection to Dr. Chopra being admitted as an expert in microbiology and immunochemistry and vaccinations. In evidence on the motions before me, the father indicates that he felt intimidated and unable to challenge the evidence of Dr. Chopra after being unable to challenge Dr. Bark’s qualifications.
[44] After the arbitrator confirmed that the father would not challenge Dr. Chopra’s qualifications, the mother’s counsel stated:
So Dr. Chopra, I have your report in front of me, and I don’t need to qualify you as an expert but I would like for you to tell us a little bit about your educational background, your work background and your familiarity with the vaccine world?
[45] Dr. Chopra reviewed his professional history. He explained that, at the time of the arbitration, he was 83 years old. He qualified as a veterinarian in India. His initial job was to vaccinate thousands of cattle in India. Subsequently he worked producing veterinary vaccines at a government institute, and then did nine months post-graduate training in mass scale production of vaccines and sera at the Indian Veterinary Researchers Institute.
[46] In 1960, he came to McGill where he completed his Master’s and PhD in microbiology. In the mid-1960s, he worked at the Royal Victoria Hospital in Montreal in allergy research and immunochemistry.
[47] Subsequently he moved to England, where he worked as head of biological research in a pharmaceutical company making antiallergy vaccines. In 1969, he was hired by Health Canada as a vaccine and antibiotics expert. After 20 years he moved to the Bureau of Drugs within Health Canada.
[48] He is a fellow of the World Health Organization “where I’ve travelled all across Europe and in the regulatory standardization of vaccines and related or relevant diagnostics for world standards – international standards.” Dr. Chopra has also written a book in which chapter one is called “The Case Against Vaccines”.
[49] The transcript does not reveal any point when the arbitrator asked questions about Dr. Chopra’s expertise or considered his qualifications. The arbitrator did not formally qualify Dr. Chopra as an expert or identify the scope of his expertise on the record.
[50] Dr. Chopra went on to provide his opinion about vaccines. The arbitrator noted Dr. Chopra’s view that “the vaccination culture is perpetuated by big pharma” but stated he did not need to address that submission, finding it to be irrelevant to his determination of the issues in the arbitration.
[51] The arbitrator identified the key parts of Dr. Chopra’s evidence before him as follows:
What resonated for me from Dr. Chopra’s evidence was that in his scientific view formed over 35 years within the very system that supported the program, the proper medical studies regarding the effects of the vaccinations had not been done. He testified that the medical community by and large does not make the necessary inquiries, and blindly follows the vaccination protocols.
Dr. Chopra testified that the objectives of vaccines in general is to protect roughly 80% of the population. He then cited studies from the 1970s that concluded that 85% of children developed natural immunity to MMR, which seems to negate the need for that vaccination.
Dr. Chopra shared the views of Dr. Bark that overall, the negative side effects outweigh the limited positive benefits.
Finally, Dr. Chopra testified that the risks to an unvaccinated child within a population that is generally vaccinated is extremely small.
[52] Having reviewed the evidence of Dr. Bark and Dr. Chopra, the arbitrator concluded “[o]n the evidence submitted, I am unable to find any risk to [the children] if they remain unvaccinated. Further I am satisfied on the evidence that the vaccinations may pose additional risk to them given [the mother’s] medical condition, which they may have”.
[53] The arbitrator noted the absence of evidence from the father about whether there is increased risk to the father’s new family due to the unvaccinated status of the children and the absence of evidence of whether there is extra risk to the children given the mother’s genetic structure. He concluded that the father’s evidence “was not sufficient to overcome the specific evidence of risk presented by [the mother]”.
The Mother’s Other Evidence
[54] At this juncture it is not necessary to review in detail the other evidence led by the mother. I note that she offered evidence from a friend, Brendan Ross, whose evidence the arbitrator did not find important to his deliberations.
[55] The mother also called the children’s family doctor, Dr. Pham. The mother’s motion for fresh evidence relates to an affidavit sworn by Dr. Pham. I address Dr. Pham’s evidence later in the context of my analysis of the mother’s motion.
[56] The mother gave evidence herself in which she described her efforts to learn about the risks of vaccinations and her concerns about vaccinating the children. She also gave evidence about her genetic variation[^1]:
Q. And there was some discussion here on the last day about a genetic condition that you have. Can you just either briefly tell us about it or confirm what Dr. Bark had said?
A: So I have a genetic variances Dr. Bark clarified. So it’s called MTHFR and I’m homozygous, which means that I have inherited teachings from my parents and, as a result of that means that my children are, by definition, either heterozygous…
Q: I don’t think we need your evidence…
A: Okay.
Q: …on this. Dr. Bark has already given evidence.
A: Okay.
Q: I’m just asking for you to confirm…
A: Yes, yes, I have the variance, and one of the issues with MTHFR or a major issue is that our detoxification pathways are compromised because we have an inability to utilize or break down folic acid into its bioavailable form in the body, which can lead to a lot of – I won’t get into it, but a lot of health problems…
The Father’s Evidence at the Arbitration
[57] At the arbitration, the father led evidence from a friend, Anne-Sophie Unkovic, which responded to the evidence the mother led from Mr. Ross. Essentially, Ms. Unkovic and Mr. Ross discussed whether the father had long-standing concerns about vaccinations or whether his view that the children should be vaccinated arose after separation. As I have noted, the arbitrator found this evidence unhelpful in his determinations.
[58] The father also gave evidence himself, both at the arbitration in June, and when the arbitration continued in September 2017.
[59] At the return of the arbitration in September 2017, the father attempted to introduce documentation supporting his views that vaccinations are safe and effective, and important to maintaining health. These included government documents, which the father sought to introduce in reliance of s. 25 of the Ontario Evidence Act. The mother’s counsel objected, and argued that the documents could not be admitted for proof of the truth of their contents. The arbitrator agreed to admit the three documents into evidence “but not necessarily for the truth of their contents”. It is unclear to me whether the arbitrator eventually concluded the documents could be relied upon for their truth, or merely for the fact that the governments that authored the publications made the statements set out in them. In his award, the arbitrator states that there is “no question of the fact that all levels of governments in Canada support [the father’s position on vaccines]. It is difficult to reconcile that kind of unanimous support against a small group with a dissenting view.”
[60] In addition, the father attempted to introduce a letter from Dr. Alana Rosenthal, an infectious disease doctor who works closely with a Dr. Salvadori, with whom the father had consulted before the arbitration. In correspondence to the arbitrator before the arbitration, the father indicated that he had a vaccination expert – Dr. Salvadori – available to assist. However, as is apparent from my review of the evidence at the arbitration, Dr. Salvadori never did produce a report nor attend to give evidence. Rather, the father explained at the arbitration in September 2017 that Dr. Rosenthal, a doctor who works closely with Dr. Salvadori, contacted him because she had heard about his situation. The father stated:
Because what happened is before when I tried to find some expert I couldn’t find anyone available at the time but I made so much [sic] phone calls in the health community that this person came to me and said, I got the information and I want to see your children, and I can write you a report or letter on my position on the vaccination and your [children’s] health situation and she did.
[61] Dr. Rosenthal is one of the affiants whose fresh evidence the father seeks to introduce on appeal. She is a pediatric infectious diseases specialist and has worked as a consultant in the field of infectious diseases at the Hospital for Sick Children and at North York General Hospital. She is certified as a specialist in pediatrics and in infectious diseases by the Royal College of Physicians and Surgeons of Canada. After graduation from medical school, she completed five years of post-graduate work at the University of Ottawa medical school which included three years in pediatrics and two years in pediatric infectious diseases. She was a clinical fellow at the University of Toronto medical school in pediatric infectious diseases.
[62] Dr. Rosenthal saw the children during the break in the arbitration and wrote a letter in which she stated that infectious diseases are a significant cause of morbidity and mortality in Canada and worldwide. She expressed her view that the development of vaccines against known infectious diseases is essential for the health of individuals and others they may come into contact with. She stated that infectious diseases continue to circulate in Canada, because some individuals have chosen not to be immunized, were not offered immunizations in their country of origin, or their immunity from vaccination has waned over time. She stated that national and international public health experts consider vaccines safe. She stated that no scientific studies have shown vaccines to be harmful. She reviewed the side effects of vaccines, when they occur, and concluded that they are mild. She also disputed the theory that the adjuvants used in vaccines are unsafe. Dr. Rosenthal also addressed the MTHFR vaccine and stated that her literature search shows that the variation is not a contraindication to vaccination. She concluded that the benefits of vaccines far outweigh the minor side effects of them.
[63] The mother’s counsel objected to receipt of the letter from Dr. Rosenthal. He objected because it did not include an acknowledgement of expert’s duty, and because Dr. Rosenthal was not present to give testimony.
[64] The following exchange occurred:
Arbitrator: The problem is we have well defined rules about expert evidence. Usually they have to provide a report and sign a certification, and I am not sure this is a report. They have to sign a certificate and then give evidence under oath. You cannot give her evidence.
The father: I can try to get in touch with her.
Counsel: My next objection is the time for delivery for expert reports was before we started arbitration not in the middle because as you can imagine I would have put this to Dr. Bark for rebuttal.
Arbitrator: I would like to have all evidence on both sides of the equation to make a reasonable decision but I can’t find a way to introduce this. Sorry.
The father: That’s the rules.
The Father’s Proposed Fresh Evidence
[65] The father is proposing the admission of four affidavits as fresh evidence on appeal. I describe each of these affidavits below.
Dr. Lawrence Loh
[66] Dr. Loh is a public health and preventive medicine specialist physician and family physician. He is an adjunct professor at the Dalla Lana School of Public Health at the University of Toronto.
[67] Since 2016, Dr. Loh has served as Associate Medical Officer of Health for the Region of Peel, holding the portfolio of Health Protection which includes immunization system records, surveillance and safety. Previously, he has served as Senior Medical Consultant to the Chief Medical Officer of Health of Ontario, and as Medical Health Officer for Fraser Health Authority in British Columbia. In the latter role he held the maternal-child health portfolio and was involved in the response to the 2014 measles outbreak in the Fraser Valley.
[68] Dr. Loh has also served as Senior Medical Consultant at the Public Health Agency of Canada in the Vaccine Safety Section. He is certified in public health and preventive medicine by the Royal College of Physicians and Surgeons in Canada.
[69] I note that while the mother opposes the introduction of Dr. Loh’s affidavit, she does not do so on the basis that he is unqualified. Rather, she argues that the Palmer criteria are not made out with respect to his evidence.
[70] Dr. Loh’s evidence addresses the risks of contracting vaccine-preventable illnesses, the safety and side effects of vaccinations, including the use of adjuvants, the scientific literature regarding the safety and effectiveness of vaccines and adjuvants, the role of NACI, contraindications to vaccination, including whether the MTHFR genetic variation is a contraindication to vaccination, scientific studies about whether there is any correlation between any genetic mutation and unique risks to children receiving vaccination, the risk to the children from being unvaccinated as opposed to being up to date in their vaccinations, and the impact of receiving childhood vaccinations at later ages than typical.
Dr. Alana Rosenthal
[71] Dr. Rosenthal saw the children in July 2017, during the break in the arbitration. I have already described her qualifications. As with Dr. Loh, while the mother opposes the admission of Dr. Rosenthal’s evidence based on the application of the Palmer criteria, she does not contest her qualifications.
[72] Dr. Rosenthal’s evidence is in line with that set out in the letter she provided in 2017 that was not accepted into evidence at the arbitration. She opines that infectious diseases are a significant cause of morbidity and mortality in Canada and worldwide. She states that the development of vaccines against known infectious diseases is essential for the health of individuals and others that they may come into contact with. She states that vaccination is the best way to avoid contracting serious illness. She states that Canadian public health policy favours vaccines.
[73] Dr. Rosenthal deposes that vaccines provide children with active immunity because the passive immunity they receive from their mothers wears off within the first year of life. She deposes that the body can produce antibodies by getting a disease or by getting a vaccine, the latter being a much safer way to make antibodies without suffering from disability or death due to actual infections.
[74] Dr. Rosenthal addresses the fact that the children previously contracted whooping cough and opines that they were needlessly infected and they needlessly suffered, and that they also posed a risk to others, because they could spread the illness. Dr. Rosenthal opines about the ongoing risk of becoming infected with vaccine-preventable diseases, stating that outbreaks of mumps continue to occur in Canada. She opines that vaccines are safe and considered to be so by national and international public health experts. She gives evidence about the side effects of vaccines and concludes they are mild.
[75] Dr. Rosenthal also gives evidence about the MTHFR mutation, and states that it is not a contraindication to vaccines according to the scientific literature.
[76] Dr. Rosenthal concludes that the children are at much greater risk from being unvaccinated than from being caught up on their vaccinations, and that it is not uncommon for people to receive childhood vaccinations at later ages than typical and still receive all the benefits of those vaccinations. She states that the benefits of vaccines far outweigh the minor side effects of them.
Dr. Neal Sondheimer
[77] Dr. Sondheimer is a pediatrician, geneticist and biochemical geneticist. He obtained his MD and undertook advanced studies in genetics, receiving a Ph.D. in molecular genetics and cell biology at the University of Chicago and the Pritzker School of Medicine.
[78] Dr. Sondheimer did clinical post-graduate training in pediatrics, genetics and molecular genetics at the Children’s Hospital of Philadelphia and the University of Pennsylvania, where he was also an assistant professor of pediatrics and staff biochemical geneticist. In 2015, he took a position at the Hospital for Sick Children, where he is currently a staff physician in metabolic genetics and an associate professor of paediatrics at Molecular Genetics at the University of Toronto.
[79] As with Drs. Loh and Rosenthal, the mother does not contest the qualifications of Dr. Sondheimer, but she opposes the introduction of his evidence on the basis that it fails the Palmer test.
[80] Dr. Sondheimer’s evidence includes his opinion that there are extensive misunderstandings about the role of the MTHFR in human health. He states that the role of the MTHFR variation is important, but it is limited to the inter-conversion of different states of folate. The failure of this system, caused by pathogenic variants in MTHFR, impairs the methylation of homocysteine to methionine, but it does not impact vaccination or pose any credible risk for vaccination. In addition, MTHFR does not detoxify or in any other way interact with heavy metals.
[81] Dr. Sondheimer states that no recommendation against the vaccination of patients affected by MTHFR-associated homocystinuria plausibly exists, and patients with serious inherited errors of metabolism are never instructed to avoid vaccines. Rather, vaccines are critical to patient safety. No pre-screening is required for vaccinations.
[82] Dr. Sondheimer states that if the children were carriers of MTHFR, the recommendation would be that they be fully vaccinated. If the children had MTHFR-associated homocystinuria, the recommendation would also be that they should be fully vaccinated. He opines that MTHFR variants, whether pathogenic or non-pathogenic, whether in the carrier or affected state, are irrelevant to the question of whether a child should be vaccinated. Even in the presence of known disease, he states that there is no recommendation made to restrict or modify vaccine schedules.
Affidavit of the Father
[83] The father also sought to introduce an affidavit, dated April 22, 2019, which he swore in support of a previous motion before this court. At the hearing of the motion to introduce fresh evidence, he clarified that he seeks only to introduce portions of that affidavit, being paras. 25-53 and paras 111-118, plus the exhibits referred to in those paragraphs.
[84] In paras. 25-53, the father addresses the evidence of Dr. Bark and Dr. Chopra at the arbitration. He states that he did not receive Dr. Bark’s curriculum vitae when her report was served, and states that her report was served 11 days before the commencement of the arbitration, although the parameters set by the arbitrator required the report to be served at least 30 days before the arbitration. He states that Dr. Chopra’s report was also served late, 13 days before the arbitration.
[85] Paragraphs 29-32 explain events that occurred at the arbitration and that are, in any event, set out in the transcripts of the arbitration.
[86] In para. 33, the father explains what NACI is and attaches a copy of a peer-reviewed article called “Canada’s National Advisory Committee on Immunization: Evidence-based Decision Making on Vaccines and Immunization”.
[87] In paras. 34-37, the father addresses the qualification of Dr. Bark as an expert and the evidence she gave at arbitration. To the extent his evidence relates what transpired, it is contained in the transcript. However, beyond what is captured on the transcript, the father states that he gave up questioning Dr. Bark’s expertise. He also provides some editorial comments on the qualification process and argues that Dr. Bark was permitted to give evidence far outside the scope of her expertise.
[88] In paras. 38-41, the father addresses the qualification of Dr. Chopra as an expert. Again, what transpired is available through the transcript. The father includes evidence about his feeling intimidated and unable to challenge the credibility of Dr. Chopra, and his belief that Dr. Chopra did not give non-partisan and objective evidence.
[89] In paras. 42-45, the father gives evidence about Dr. Bark’s qualifications. He states that according to her website she has “extensive post-residency training in aesthetic, medicine, nutritional medicine and classical homeopathy”, that she created the “ultimate facial”, and that since 1994 she has been in private practice in preventive medicine and anti-aging medicine “including aesthetics”. He also states his belief that Dr. Bark’s only publication on vaccination is a letter to the editor where she is the third author. He states she is frequently hired and paid tens of thousands of dollars to give expert testimony against the use of vaccinations, and makes reference to a hearing in Michigan in October 2017, where Dr. Bark was proposed as an expert witness but where the court refused to qualify her. He attaches a newspaper article about the Michigan hearing.
[90] In paras. 46-53, the father gives evidence about Dr. Chopra’s qualifications. Some of the paragraphs review the evidence Dr. Chopra gave at the arbitration. At paras. 49-51, the father gives evidence about Dr. Chopra’s professional employment ending in 2004 after he was terminated by Health Canada, and the subsequent 13-year litigation which resulted in a determination by the Federal Court of Appeal that Dr. Chopra’s termination was reasonable. He attaches the reasons of the Federal Court of Appeal as an exhibit. The father deposes that Dr. Chopra was an applicant in at least 28 legal proceedings between 1999-2017 and attaches a search of his legal proceedings from . He also attaches the reasons of an adjudicator in Chopra v. Health Canada, 2008 CHRT 39, in which the adjudicator concludes that Dr. Chopra is angry and bitter against Health Canada and Dr. Chopra had made sweeping statements that affected Dr. Chopra’s credibility or, at least, his objectivity or sense of proportion.
[91] The final paragraphs of the father’s affidavit relating to Dr. Chopra quote Dr. Chopra’s evidence on arbitration, which again, is available on the transcript.
[92] In paras. 111-118, the father gives evidence about the support he has received from the Canadian medical community. Paragraph 111 refers to support from Dr. Loh, whose affidavit is separately offered as fresh evidence on this motion.
[93] Paras. 112-114 deal with support the father received from Dr. Karina Top, an associate professor of pediatrics and community health and epidemiology at Dalhousie University and a pediatric infectious diseases consultant at the IWK Health Centre in Halifax. Dr. Top provided a letter in support of the father’s appeal. The father reviews Dr. Top’s qualifications in his affidavit and quotes from Dr. Top’s letter, which is attached as an exhibit to his affidavit. Dr. Top’s letter discusses the role of NACI, and her views about the safety of vaccinations. She states that vaccine hesitancy is considered by the World Health Organization as one of the top ten threats to public health in 2019.
[94] Paras. 115-118 deal with support the father received from Dr. Jocelyn Srigley, a medical microbiological and an infectious diseases specialist currently working at the Children’s Hospital and BC Women’s Hospital + Health Centre, and as Corporate Director of Infection Prevention and Control for the Provincial Health Services Authority. The father quotes from and attaches a letter from Dr. Srigley in support of his appeal, in which she expresses her views about vaccine efficacy and safety, and the risk of being unvaccinated. Dr. Srigley also addresses the risk to children who cannot be vaccinated, such as a pediatric cancer patient, and the consequences of being exposed to measles from unvaccinated children.
[95] The mother objects to the affidavit of the father, arguing that it does not meet the Palmer criteria. In addition, she raises hearsay concerns, and states that some of what the father offers is not evidence, but argument.
Analysis of the Palmer Criteria
[96] Apart from specific objections to the father’s evidence which I address later, the mother’s objection to the admission of the father’s fresh evidence is that it fails to meet the Palmer criteria. In particular, she argues that the father could have adduced the evidence at the arbitration with due diligence. She also argues that the evidence, even if believed, could not reasonably, when taken with the other evidence adduced at arbitration, be expected to have affected the result.
[97] Below, I first consider the application of each of the Palmer criteria to the proposed expert evidence of Drs. Loh, Rosenthal, and Sondheimer. After I have reviewed the application of the Palmer criteria to the expert evidence, I consider the admission of the father’s affidavit as fresh evidence.
The Application of the Palmer Criteria to the Expert Evidence
The Due Diligence Requirement
[98] The mother argues that the father’s expert evidence would have been available at arbitration had he exercised due diligence. She notes that the father had some legal assistance, and points to an affidavit he filed on the arbitration that reads as if it was drafted by a lawyer, and the father’s admission that he had some help behind the scenes preparing for cross-examination. She argues that as a self-represented person, he was required to meet his procedural obligations, and that he is not entitled to a second bite of the cherry.
[99] In my view, the mother’s arguments about the father’s lack of due diligence must be rejected because:
a. The mother’s expert reports were delivered late. The father was expecting to have her expert evidence at least thirty days in advance of the arbitration, but he did not receive the reports until 13 and 11 days before the arbitration, and even then, Dr. Bark’s report came without her curriculum vitae. His evidence at the arbitration indicates he made a number of phone calls to try to find an expert, but no one was available.
b. The fact that the father had lined up an expert earlier is not determinative of this motion when the mother’s late delivery of the expert reports fundamentally changed the timeline on which the father’s proposed expert would have had to respond.
c. While the father had some assistance from a lawyer in the background, it is apparent to me from reading the transcripts that the assistance was limited. The father’s cross-examinations of the mother’s witnesses or his cross-examinations (or lack thereof) regarding the experts’ qualifications do not reveal a well-coached, well-prepared litigant. The father chose to act for himself, and by doing so, does not absolve himself of the responsibility to meet his procedural obligations. However, in circumstances where the mother failed to meet the timelines prescribed for delivery of her expert reports, in my view, the fact that the father was self-represented is one of the constellation of facts that the court can consider in determining whether the father exercised due diligence.
d. The father attempted to obtain expert evidence during the break in the arbitration, and he attended on the last day with the letter from Dr. Rosenthal. When he understood that Dr. Rosenthal’s evidence could not go in through a letter, he offered to try to reach her. Rather than explore this possibility, or any other steps that could be taken to address the gap in the father’s evidence, the father was told the letter could not be admitted.
[100] I have already reviewed the law which holds that the due diligence branch of the test may be relaxed where the welfare of a child is at stake. The question about the vaccination of the children relates directly to their physical and mental welfare and justifies a relaxation of the due diligence branch of the test. It is important that decisions affecting a child’s best interests be made on the best evidence available. Here, the father attempted to get his expert’s views before the arbitrator and was precluded from doing so. He was not offered any other avenues to address the late delivery of the mother’s reports and the resulting challenge he faced in responding to them. I note that the parties agree the arbitrator would have been aware of the late delivery because the letters that accompanied the reports were addressed to both, the father and the arbitrator.
The Evidence Bears on a Decisive or Potentially Decisive Issue in the Arbitration
[101] In my view, all the expert evidence proposed by the father bears on a decisive or potentially decisive issue in the arbitration.
[102] It is apparent from the arbitrator’s reasons that in considering the children’s best interest, he considered and relied upon evidence about the particular risk posed to the children by reason of the MTHFR genetic variation the mother testified she has. All of the expert evidence, and in particular Dr. Sondheim’s evidence, address this issue directly.
[103] It is also apparent that the arbitrator was “unable to find any risk to [the children] if they remain unvaccinated”. The expert evidence, and particularly that of Drs. Rosenthal and Loh, addresses the risks of the children remaining unvaccinated, and also addresses the side effects and other risks, or other claimed risks, of becoming vaccinated.
The Credibility of the Evidence
[104] The evidence of each of the proposed experts is credible in the sense that it is reasonably capable of belief. The qualifications of the experts are not contested. A review of their qualifications indicates that each is well positioned to give the evidence they depose to in their affidavits. There is no reason to conclude that any of the proposed experts is anything other than an objective, independent expert offering their expertise to the court.
Could the evidence reasonably be expected to have affected the result?
[105] The mother argues that the proffered evidence, when taken together with the other evidence at arbitration, could not reasonably be expected to have affected the result. She relies on the reasons of the arbitrator in making this argument.
[106] After having reviewed the evidence of Dr. Bark and Dr. Chopra, and after having considered the father’s position and distinguishing the parties’ case from the decision of this court in C.M.G. v. D.W.S., 2015 ONSC 2201, the arbitrator accepted that the mother’s decision not to vaccinate was not a lark, but that she was knowledgeable and informed on the issue. He concluded her decision was a considered one and one that was in the best interests of the children. He then wrote:
Finally, and perhaps most compellingly, the tug of war over vaccinations must end. The tension created by this dispute has lingered far too long. It is clear that it was a live issue leading up to the execution of the Minutes. The parties chose not to resolve it then, which was clearly a compromise term, knowing that in all likelihood it was [sic] rear its head in the future. It is a source of tension between the parties and is now a source of anxiety for the [children].
Based on the evidence before me, if an award for vaccinations was issued it would cause more problems than it would solve. The evidence suggests that the children have aligned to a certain extent with their mother’s views on vaccinations. The prospect that they will be forced to be vaccinated is making them anxious and stressed. Their best interests require that they be freed from this conflict, which can only occur with the Award I have made.
When the children are older they will be able to decide on their own whether they believe in vaccinations or not and can take such steps as may be necessary should they change their currently held views that vaccination [sic] are not beneficial.
[107] The mother argues that these concluding paragraphs make clear that the arbitrator was focused on the stress to the children of their parents’ conflict around the vaccination issue, such that all the expert evidence the father seeks to introduce is irrelevant to the arbitrator’s decision, and could not, when taken together with the other evidence in the arbitration, reasonably be expected to have affected the result.
[108] In my view, the basis for the arbitrator’s decision is not so clearly anchored in the stress to the children as to lead me to draw that conclusion at this stage.
[109] The question is not whether, had the father’s proposed expert evidence been before the arbitrator, the award would have been different. Rather, the question is whether the evidence, if believed, when taken together with the other evidence adduced at the arbitration, could reasonably be expected to have affected the result. Given the arbitrator’s reliance on the specific risk to the children of being vaccinated due to the MTHFR genetic variation, his conclusion that he was unable to find any risk to the children if they remain unvaccinated, and his finding that “[the father’s] evidence was not sufficient to overcome the specific evidence of risk presented by [the mother]”, I conclude that, when taken with the other evidence at arbitration, the evidence of the father’s proposed experts could reasonably be expected to have affected the result of the arbitration.
[110] It follows from my application of the Palmer criteria to the father’s experts that the affidavits of the experts should be admitted as fresh evidence.
[111] I note that no one has made any submissions on whether the proposed expert evidence would otherwise qualify for admission having regard to the Mohan criteria. This is likely because the Mohan criteria are, to a large extent, subsumed in the analysis of the Palmer criteria in this case. I would have expected counsel to raise a threshold issue of admissibility of expert evidence on the motion before me if there were one.
[112] In R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, at p. 20, the Supreme Court of Canada concluded that the admission of expert evidence depends on the application of four criteria: (i) relevance, (ii) necessity in assisting the trier of fact, (iii) the absence of any exclusionary rule, and (iv) a properly qualified expert.
[113] Here, I have already determined that the evidence is relevant because it bears upon a decisive or a potentially decisive issue at the arbitration, namely, the risk to the children if they are, or are not, vaccinated. No one has asserted any exclusionary rule. No one has asserted any issue with respect to the qualifications of the proposed experts, and I have found them to be credible. The only remaining criteria is whether the evidence is necessary. Since the father’s proposed experts are responding to the expert evidence led by the mother, on scientific issues involving vaccine efficacy, risks, and the effects of genetic variation on vaccine risks and recommendations, it is apparent to me that the evidence is necessary. I thus conclude there is no threshold issue to the admissibility of the expert evidence through the application of the Mohan criteria.
The Application of the Palmer Criteria to the Father’s Evidence
[114] I next turn to the proposed fresh evidence from the father. In my view, even before considering the Palmer criteria, much of the proposed evidence is improper. In particular,
a. The father’s recitation of events at the arbitration is not proper evidence. There is a transcript available.
b. The father’s evidence (i) about the timing of the delivery of the mother’s expert reports, (ii) that he did not receive Dr. Bark’s curriculum vitae at the time her report was served, (iii) that he gave up questioning Dr. Bark’s qualifications, and (iv) that he was too intimidated to challenge Dr. Chopra’s qualifications, is relevant on this motion, but it is not relevant to the issues on appeal.
c. To the extent the father’s evidence is argument (for example, that Dr. Bark testified outside her area of expertise), or editorial comments on the events that transpired at arbitration, it is not proper.
d. To the extent the father describes NACI and its role as an expert, he does so in reliance on a peer-reviewed journal article. While it is permissible for experts to opine about peer-reviewed articles, the father is not an appropriate witness to do so. The reliability of the evidence from the father turns on the reliability of the article. If the article is to be admitted in evidence, it should come in through an expert.
e. To the extent the father gives evidence about Dr. Loh’s opinion, it is unnecessary because Dr. Loh’s affidavit has been admitted.
f. To the extent the father gives evidence about Dr. Top’s and Dr. Srigley’s opinions and qualifications, the evidence is hearsay. The father argued that I can still admit hearsay evidence and simply let its status as hearsay evidence go to weight. I disagree. Hearsay evidence is not admitted for proof of the truth of the contents unless an exception to the hearsay rule applies. No such argument was made here, and I see none on its face. Thus, the father’s evidence about Dr. Top and Dr. Srigley is inadmissible.
[115] Thus, the only proposed fresh evidence of the father that is potentially admissible is his evidence about the qualifications of Dr. Bark and Dr. Chopra. I reviewed the evidence around the qualification of Dr. Bark and Dr. Chopra at the arbitration in detail earlier in these reasons.
[116] In my view, the father’s fresh evidence about Dr. Bark’s qualifications does not meet the Palmer test for admission. For example, the father’s affidavit refers to the information found on Dr. Bark’s website. This is information that could have been put to Dr. Bark when the father cross-examined her on her qualifications. At that time, he did put questions to her about information on her website, but not about the aspects of her website he now wishes to depose to. On even a relaxed approach to the due diligence criteria of the Palmer test, this evidence could have been elicited at the arbitration, when Dr. Bark would have had the opportunity to respond.
[117] The father also states he believes Dr. Bark’s only publication on vaccinations is a letter to the editor. This belief is inconsistent with the evidence given by Dr. Bark at the arbitration, and her curriculum vitae. The proposition should have been put to her at the arbitration. It is not clear from the father’s evidence why he believes that she has not authored any other publication apart from the letter to the editor. On its own, it is a bald allegation and cannot reasonably be expected, when taken with the other evidence at the arbitration, to have affected the result.
[118] The father also alleges, in effect, that Dr. Bark is a hired gun, takings tens of thousands of dollars to testify against the use of vaccinations. Dr. Bark was not given the opportunity to address this allegation. In any event, the allegation is another bald allegation and without more, cannot reasonably be expected, when taken with the other evidence at the arbitration, to have affected the result.
[119] Finally, the evidence of the father relating to the refusal of a Michigan court to qualify Dr. Bark as an expert in immunizations is based on a newspaper article. A newspaper article is not a reliable source of information to determine exactly what the Michigan court did with Dr. Bark’s proposed evidence in that case. In any event, whether Dr. Bark was qualified in another proceeding that occurred after the arbitration is not evidence that could reasonably have affected the result at the arbitration, even if could have been known at the time. The arbitrator had to make his own determination of Dr. Bark’s expertise.
[120] The father’s fresh evidence about Dr. Bark’s qualifications thus does not meet the Palmer criteria and is not admitted on the appeal.
[121] With respect to the father’s evidence about Dr. Chopra, I note that it is offered to challenge his credibility and objectivity. As such, it would have been important evidence to put directly to Dr. Chopra. I have no evidence from the father as to why the information was not put to Dr. Chopra at the arbitration, beyond his statement that he was intimidated and so did not challenge Dr. Chopra’s qualifications. The proposed evidence that is said to challenge Dr. Chopra’s qualifications arises from proceedings that were extant between 1999 and 2017, and the specific excerpt from the reasons on which the father relies is from 2008. It was clearly evidence that would have been available at the time of the arbitration hearing.
[122] I note that the father had very little time to prepare to challenge Dr. Chopra’s qualifications due to the late service of the mother’s expert reports. He received Dr. Chopra’s report 13 days before the arbitration commenced, and Dr. Chopra gave evidence on the first day of the hearing.
[123] In my view, given the short service of two expert reports so close in time to the hearing, it cannot be said that the father was not duly diligent in not challenging Dr. Chopra’s credibility and objectivity based on the history of Dr. Chopra’s litigation with Health Canada.
[124] Given that the arbitrator relied, in part, on Dr. Chopra’s evidence to conclude that he was unable to find any risk to the children if they remain unvaccinated, the credibility and objectivity of Dr. Chopra’s evidence is relevant in the sense that it bears upon a decisive or potentially decisive issue in the arbitration. It is also evidence that, if believed, it could reasonably, when taken together with the other evidence adduced at trial, be expected to have affected the result.
[125] Finally, in my view the evidence is credible, given that it is contained in reported reasons of, among others, the Canadian Human Rights Tribunal, where Dr. Chopra participated in litigation, and where the adjudicator made findings in an adversarial process. Similarly, the number of cases in which Dr. Chopra was involved against Health Canada is demonstrated by way of a search. I thus conclude that the father’s evidence and exhibits relating to Dr. Chopra’s credibility that are included in the father’s affidavit are reasonably capable of belief.
[126] Therefore, the father’s fresh evidence about Dr. Chopra’s qualifications is permitted to be adduced in the appeal, subject to the conditions I set out below.
Conclusion on the Father’s Motion for Fresh Evidence
[127] In conclusion, the following evidence shall be admitted as fresh evidence on appeal:
a. The affidavit of Dr. Lawrence Loh, sworn April 20, 2019;
b. The affidavit of Dr. Alana Rosenthal, sworn April 29, 2019;
c. The affidavit of Dr. Neal Sondheimer, to be sworn, attaching his report dated August 14, 2019;
d. Paragraphs 49-51 of the affidavit of the father, A.P., sworn April 22, 2019.
[128] However, I direct that paragraphs 49-51 of the father’s affidavit be re-sworn in a new affidavit that includes only those paragraphs. The remainder of the affidavit is not proper evidence on appeal and should not form part of the appeal record.
The Mother’s Motion for Fresh Evidence
[129] The mother seeks to admit a short affidavit from the children’s family physician, Dr. Thuy-Nga (Tia) Pham. She characterizes this as an updating affidavit, because Dr. Pham gave evidence at the arbitration. Below I review the evidence she gave that is relevant to the mother’s fresh evidence motion.
[130] At the arbitration, Dr. Pham gave evidence that she has been the children’s family doctor since they were babies. She deposed that she had offered vaccinations to the children but after discussion, the mother has declined all vaccinations. She also testified that the children are healthy and thriving. She confirmed the children had whooping cough but said she “wouldn’t call that a serious illness”.
[131] Dr. Pham explained her routine family practice is to offer every child the national standard of pediatric vaccinations, which most families accept, but some do not.
[132] On cross-examination at the arbitration, the father sought to ask Dr. Pham her position on vaccination. The following exchange occurred:
Counsel: I have an objection. Is that not an opinion?
Arbitrator: Yes. Why can’t I hear her opinion?
Counsel: Well, she is not an expert.
Arbitrator: She can give her opinion. It’s not expert evidence. She is entitled to give opinion evidence. She is a doctor.
Counsel: Really? She can give opinion evidence without a report? I didn’t think the rules provided for that.
Arbitrator: I think the rules do provide for – she is not giving expert evidence on vaccinations. She is giving her general medical opinion on this subject, which is not specific to these children. Go ahead.
[133] Following this exchange, Dr. Pham testified about her standard practice with respect to vaccinations, which is to offer them to the patients under her care. The following exchange then occurred:
The father: Thank you. Do you believe that [the children] should be vaccinated?
Arbitrator: Do not answer that question.
Dr. Pham: I want to make sure I am getting that objection right.
Arbitrator: This is Mr. Fogelman, the arbitrator. That question was not proper, so I am directing you not to answer it so that the fact that you didn’t hear it is fine.
[134] The mother now proposes to introduce a brief affidavit from Dr. Pham in which:
a. She confirms she continues to be the children’s family doctor;
b. She reviews her professional background, explaining that she is a staff physician at Michael Garron hospital, lead physician at the South East Toronto Family Health Team and an associate professor in the department of family and community medicine at the University of Toronto. She states she graduated from medical school at the University of Toronto in 2003, after which she completed a residency in family medicine.
c. She states she is providing an update on the children’s current health status, as well as her opinion as their treating physician regarding the current risks posed to them by their vaccination status, including psychological and emotional risks. She states she is providing the update as a result of her training and experience as their family physician.
d. She states her opinion that N.P. has the capacity to understand the information relevant to making treatment decisions with respect to vaccination, and that N.P. is sufficiently mature to consent or to refuse to consent to receiving vaccinations. She states N.P. has expressed the wish not to be administered any vaccinations at the present time.
e. She states that the children are in excellent health, and there is no imminent or foreseeable risk to their current health status. She states that the children’s risk of contracting a serious illness as a result of not being vaccinated is overall low, but not zero.
f. She states that she recommends vaccination to all her patients based on her knowledge and understanding of the scientific evidence on the efficacy of vaccinations, but that she respects patient autonomy and her obligation to obtain informed consent prior to providing treatment. She states that where she is treating a minor, such as M.P., it is the attending parent who provides informed consent to vaccinations.
g. She states that her “greatest and only concern at this point in time is for the psychological and emotional health of N.P. and M.P” in view of the high-conflict divorce, and the media attention this case has attracted. She states that mental health concerns, such as anxiety or depression, are on the rise in the pre-teen and teen years and “pose a much greater threat to overall health and development in our current day society”. She states that the only time N.P. required an increased level of medical attention was in 2016, at the height of the separation proceedings, where N.P. presented with multiple visits for chest pain, requiring cardiac and psychiatric consultations. She states that stress and anxiety due to the parental conflict was the most likely underlying cause of these symptoms.
h. She then states that based on her conversations with, and observations of, the children, she is “concerned about the potential negative psychological and emotional impacts of the very adversarial conflict between their parents, where vaccinations are used as a point of contention at a philosophical level, as opposed to focusing on the well-being of the children right in front of them”.
i. Dr. Pham concludes by saying “in light of the above, it is my opinion that the psychological and emotional impacts of the ongoing court proceedings (where I understand vaccination is the only issue) pose a greater risk to N.P. and M.P. than their present vaccination status”.
[135] In applying the Palmer criteria to this evidence, I note the following:
a. The proposed fresh evidence is evidence of the children’s current circumstances, and of Dr. Pham’s current opinion based on those circumstances. It is thus not evidence that, with due diligence, could have been adduced at the arbitration.
b. The evidence of the children’s current health status, including their mental health status, is evidence that bears on a decisive or potentially decisive issue at arbitration. This is apparent from the arbitrator’s conclusions about the risk to the children if they remain unvaccinated, and his expression of concern about the impact of the parental conflict on the children, and their stress and anxiety at the prospect of being vaccinated.
c. The evidence is credible in the sense that it is reasonably capable of belief. Dr. Pham is a third party who is familiar with the children, and as their family doctor, is well-placed to give evidence about their current health status.
d. The evidence is such that, if believed, it could reasonably, when taken together with the other evidence adduced at arbitration, be expected to have affected the result, since it speaks directly to the physical and mental health risks to the children of being vaccinated or not.
[136] Based on a straight application of the Palmer criteria, the affidavit ought to be admitted. However, the father raises other issues with some of Dr. Pham’s evidence.
[137] First, the father objected to Dr. Pham’s evidence about the ability of N.P. to consent to treatment because, he argues, Dr. Pham is not an expert on capacity to consent. The mother states that, as the children’s treating family physician, Dr. Pham is a participant expert, and she relies on Westerhof v. Gee Estate, 2015 ONCA 206.
[138] There is no indication in Dr. Pham’s affidavit as to how she determines when a child has developed the capacity to consent to medical treatment. There is no evidence of any guidelines that may be widely accepted in the medical community with respect to when decision-making authority for medical decisions passes from parent to child. However, I accept that Dr. Pham, as a family physician, must make determinations of whether a patient is able to provide informed consent as part of the normal execution of her duties. Accordingly, this evidence is, in my view, an opinion she formed during her involvement with the children, such that Westerhof is applicable. The criticisms levelled by the father about the content of Dr. Pham’s evidence may go to weight, but they do not go to admissibility.
[139] Second, the father objected to some of Dr. Pham’s evidence being received as expert evidence when, in his view, it is lay person evidence. Specifically, he refers to Dr. Pham’s statement that high-conflict divorce can lead to negative repercussions for children, particularly in the pre-teen and teen years. In any event, the father agrees with this statement of Dr. Pham’s. I think it suffices to note that not all of Dr. Pham’s evidence is offered in her capacity as a participant expert, and the father can argue about the characterization of her evidence and the weight that ought to go to it insofar as it may be necessary to do so at the appeal.
[140] Third, there is an issue that arises from Dr. Pham giving her opinion that the psychological and emotional impacts of the ongoing court proceedings pose a greater risk to the children than their present vaccination status.
[141] After my review of Dr. Pham’s evidence at the arbitration, I wrote to counsel to draw their attention to the father’s cross-examination of Dr. Pham, and I offered counsel the opportunity to provide further written submissions if they wished. Both parties delivered brief supplementary argument.
[142] The father argued that the mother should not be permitted to adduce Dr. Pham’s evidence. He states that he was precluded by the arbitrator, after the wife’s counsel’s objection, from asking Dr. Pham about whether the children should be vaccinated. If the mother is now allowed to adduce Dr. Pham’s evidence and use it to argue that Dr. Pham believes the children should not be vaccinated, the father states that his original cross-examination of Dr. Pham would, in effect, be rendered incomplete.
[143] In my view, it is most important that the court have current evidence about the children and the potential impact of vaccination on them, even if this results in irregularities in the record from the arbitration. The admission of the fresh evidence I have already permitted will also result in irregularities in the record. There is no denying that the evidence at the arbitration could have been more complete. However, in this case, the court is dealing with two children, who have their particular needs, and whose development is constantly unfolding as they grow. The father seeks to overturn the arbitrator’s award and obtain an order to vaccinate the children. If the court’s analysis reaches the point where that determination must be made, the court must be able to determine whether the children as they are today should be vaccinated, not whether the children as they were in 2017 should have been vaccinated.
[144] Accordingly, I conclude that the affidavit of Dr. Thuy-Nga (Tia) Pham shall be admitted as fresh evidence on the appeal.
Procedural Impacts of the Fresh Evidence
[145] I note the mother’s argument that admitting the fresh evidence on appeal would, in effect, turn the appeal into a hearing de novo, something she states the court should not do in view of the parties’ arbitration agreement which placed primary jurisdiction for the determination of the vaccination issue in the hands of an arbitrator. When I asked whether, if I were to admit the fresh evidence, the mother would seek an order immediately returning the matter for a fresh arbitration rather than an appeal hearing, she said she would not. Rather, she may raise the jurisdictional issue in the context of arguments about remedy at the appeal.
[146] I also asked whether it would be more appropriate to reserve my ruling on the fresh evidence pending the argument on the appeal, which is typically when such motions are decided. The mother urged me not to do so. The parties agreed that the admission of fresh evidence might require them to seek cross-examinations on affidavits, and the scope of evidence admitted, if any, would have significant impact on the costs of the appeal.
[147] Given that I have admitted significant portions of the proposed fresh evidence, and given the parties’ statements that they might seek cross-examinations if fresh evidence was admitted, it is necessary to consider what, if any, further development of the record will be required.
[148] I thus direct the parties to attend a case conference with me, either in person or by telephone, to consider and timetable the remaining steps to prepare the appeal for hearing on the merits. The timing of the case conference shall be arranged by the parties through my assistant.
The Publication Ban
[149] As I noted earlier, by my endorsement dated June 28, 2019, the issue of the publication of the children’s health information was to return before me on November 12, 2019. In my June 28, 2019 endorsement, I wrote:
There is a serious risk to the children in publishing their health information. There is a strong privacy interest in health information, and generally, very little public interest in accessing another’s private health information. In this case, there is a strong public interest in understanding certain aspects of the children’s health information – at the very least, that they are unvaccinated. There may be other information about the children’s health status that will be important to understanding the issues in this case; whether this is the case will be clearer once the motions for fresh evidence are heard. However, it is impossible to analyze the second prong of the Dagenais/Mentuck test without the relevant context to know what health information is at issue, and how it relates to the issues of public interest raised in the father’s appeal.
I conclude that, on a temporary, without prejudice basis, there shall be a ban on publishing any information related to the children’s health, except the fact that they are unvaccinated, which may be published. This aspect of the motion shall return before me on November 12, 2019, to be heard together with the motions for fresh evidence…
[150] I was advised at the outset of these motions for fresh evidence that the media parties who participated in the original motion for a publication ban take no position on the scope of the publication ban respecting the children’s health information. In other words, having reviewed the fresh evidence the parties proposed, they take no position on whether they should be entitled to publish anything about the children’s health information other than that which they are already permitted to publish – that the children are unvaccinated. The parties propose that the temporary, without prejudice publication ban on the children’s health information should continue in its current form, although presumably as a permanent order.
[151] I agree that there is no new evidence about the children’s health status contained in the motions for fresh evidence that alters the analysis I undertook in my earlier endorsement. Accordingly, I order that the temporary, without prejudice publication ban set out in para. 76(c) of my endorsement dated June 28, 2019 be made permanent, for the reasons set out in that endorsement.
Costs
[152] On consent of the parties, the costs of these motions shall be reserved to be determined together with the costs of the appeal.
J. T. Akbarali J.
Date: December 13, 2019
[^1]: The family doctor, Dr. Pham, whose evidence I review in detail when I turn to the mother’s motion for fresh evidence, also gave evidence that she had been informed (by whom is unclear) that the mother has the MTHFR genetic variation.