Boone v. O’Kelly, 2020 ONSC 6932

Court File and Parties

COURT FILE NO.: 13-56698/15-63434 DATE: 20201118

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Court File No. 13-56698

PAUL BOONE, by his litigation guardian, LAURENCE BOONE ELIZABETH BOONE Plaintiff

• and –

DR. KEVIN O’KELLY and DR. KARL R. SMYTH Defendants

Counsel: Joseph Obagi, Tom Connolly, Sarah Russell, for the Plaintiff Wayne Brynaert, Erin Page, Stephanie Doucet, for the Defendants

Court File No. 15-63434

AND BETWEEN:

PAUL BOONE, by his litigation guardian LAURENCE BOONE ELIZABETH BOONE, ELIZABETH BOONE and LAURENCE BOONE Plaintiffs

• and –

DR. KWADWO KYEREMANTENG, DR. JOSE AQUINO JR., THE OTTAWA HOSPITAL, PAULE MARCHAND and CELLINE BELLAVANCE COLLEEN ACHARYA Defendants

Counsel: Joseph Obagi, Tom Connolly, Sarah Russell, for the Plaintiffs Wayne Brynaert, Erin Page, Stephanie Doucet, for the Defendants

HEARD: November 6, 2020

Ruling on expert evidence

BEAUDOIN J.

1The plaintiffs seek to exclude the evidence of the defence expert witness, Dr. Anthony Burns, in its entirety. The defendants argue that the plaintiffs’ motion should be dismissed and that any concerns with respect to Dr. Burns’ evidence should go to its weight.

Background

2This action is a claim for damages brought on behalf of Paul Boone (Paul) with respect to injuries he sustained during a procedure to retrieve a filter that was previously placed in an artery to his heart. The procedure was carried out on February 4, 2011. During the procedure, Paul’s heart was punctured. Blood flow to his spine and lower limbs was interrupted. As a result, Paul is now paralyzed in the lower extremities.

3Paul is currently 57 years of age. Paul was born with hydrocephalus. When he was eight weeks of age, a shunt was inserted into Paul’s spine in order to drain fluid from his brain. The shunt was replaced when he was five years old. According to Paul’s mother, Beth Boone (“Beth”), Paul developed an adverse reaction to the shunt. By the time he was 11 years old, Paul started to develop scoliosis. He underwent major surgery to correct that condition. This surgery was followed by another to the hamstring muscles of Paul’s legs. Paul went on to develop kyphoscoliosis; an extreme curvature of the spine. He also suffers from developmental delay.

4Paul resides with his parents, Beth and Larry Boone (“Larry”). As a result of their love and attention, Paul had previously enjoyed a full life. In his own unique way, Paul was able to walk independently on smooth surfaces. He did not rely on any device in order to ambulate. He participated in numerous activities including, but not limited to: bowling, swimming, skating, dancing and mini-putt golf. Paul traveled with his parents. He attended a sheltered workshop daily. He was independent in almost all aspects of his daily life. He required assistance with his socks and shoes and sometimes he needed some limited toileting assistance, but in the words of his mother, “Paul was never a burden; he was a joy to be with”.

5From time to time, Beth and Larry would travel on their own and Paul would be placed in the Lavonne Respite Care Centre (“Lavonne”) for a few days. Paul was staying there on October 13, 2010 when he suffered a serious fall. Paul developed a brain bleed, following which he underwent surgery (and the insertion of a filter) that was successful in stopping the bleeding. Paul attended rehabilitation from December 6, 2010 until January 23, 2011. He was discharged with the use of a walker. Paul had briefly resumed attending the sheltered workshop, before returning to the hospital on February 4, 2011 to have the filter removed. This led to the critical incident described in paragraph 2.

6As a result of that incident, Paul is confined to a wheelchair. For practical reasons, he wears diapers; he can no longer go the bathroom on his own. He requires two-person transfers when he gets up, when he goes to the bathroom, when he has a shower and when he goes to bed at night. Paul is dependent on others for almost all activities of daily living. While he has resumed some of the activities he enjoyed pre-incident, witnesses uniformly testify that Paul has changed; he is quieter now. He has been diagnosed with depression. Until recently, Beth and Larry have devoted almost all their waking hours to providing Paul with attendant care.

7Liability and causation are admitted in this trial. The only issue before the court is the assessment of Paul’s damages and Beth’s and Larry’s respective claims pursuant to s. 61 of the Family Law Act, R.S.O. 1990, c. F.3.

8Because of Paul’s complicated pre-incident history, the defendants argue that Paul would have eventually found himself in the same condition that he is in today: wheelchair-bound and requiring two-person transfers to assist him throughout the day. The defendants submit that Paul would have found himself in this situation within 5 to 10 years of the incident.

9The defendants have the burden of proving their ‘crumbling skull’ argument and, in support of this argument, they rely on the on the evidence of Dr. Anthony Burns.

10Dr. Burns is a physiatrist with a specialty in spinal cord injuries. His impressive 56-page CV serves to identify him as an expert in his field, a distinguished academic and the author of numerous studies and articles. His qualifications to provide expert evidence are not challenged. The reliability of his evidence is the issue before me.

The Plaintiffs’ Position

11The plaintiffs submit that the evidence of Dr. Burns should be excluded in its entirety on the following grounds:

1. It fails to meet the requirements of the Rules of Civil Procedure for the admissibility of expert evidence;
2. It fails to meet the admissibility criteria set out by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182;
3. It has proven to be unreliable, biased and partisan; and
4. It was not independent, and it was influenced by the interests of those who retained him to provide an opinion.

The Defendants’ Position

12The defendants argue that Dr. Burns’ expert evidence should be admitted in its entirety and that the plaintiffs’ allegations of bias are unfounded. The defendants submit that Dr. Burns’ evidence has significant probative value to the court and that its probative value outweighs any potential prejudice.

The Governing Law

Rules of Civil Procedure, R.R.O. 1990, Reg. 194

DUTY OF EXPERT

4.1.01 (1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,

(a) to provide opinion evidence that is fair, objective and non-partisan;

(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and

(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue. O. Reg. 438/08, s. 8.

Duty Prevails

(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged. O. Reg. 438/08, s. 8.

13Rule 53.03 sets out the pre conditions which must be met before an expert is permitted to give an opinion evidence to the court. Any opinion to be given by the expert to the court must be contained in a written report which complies with rule 53.03.

EXPERT WITNESSES

Experts’ Reports

53.03 (1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference scheduled under subrule 50.02 (1) or (2), serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). O. Reg. 438/08, s. 48; O. Reg. 170/14, s. 17.

(2) A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). O. Reg. 438/08, s. 48.

(2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information:

1. The expert’s name, address and area of expertise.

2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.

3. The instructions provided to the expert in relation to the proceeding.

4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.

5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.

6. The expert’s reasons for his or her opinion, including,

i. a description of the factual assumptions on which the opinion is based,

ii. a description of any research conducted by the expert that led him or her to form the opinion, and

iii. a list of every document, if any, relied on by the expert in forming the opinion.

7. An acknowledgement of expert’s duty (Form 53) signed by the expert. O. Reg. 438/08, s. 48.

Schedule for Service of Reports

(2.2) Within 60 days after an action is set down for trial, the parties shall agree to a schedule setting out dates for the service of experts’ reports in order to meet the requirements of subrules (1), (2) and (3), unless the court orders otherwise. O. Reg. 438/08, s. 48; O. Reg. 537/18, s. 8 (1).

Sanction for Failure to Address Issue in Report or Supplementary Report

(3) An expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set out in,

(a) a report served under this rule;

(b) a supplementary report served on every other party to the action not less than 45 days before the commencement of the trial; or

(c) a responding supplementary report served on every other party to the action not less than 15 days before the commencement of the trial. O. Reg. 348/97, s. 3; O. Reg. 537/18, s. 8 (2).

The Case Law

14The starting point in the analysis of the case law is the Supreme Court of Canada’s decision in White Burgess. At paras. 1 and 2, Justice Cromwell defined the issue in these terms:

Expert opinion evidence can be a key element in the search for truth, but it may also pose special dangers. To guard against them, the Court over the last 20 years or so has progressively tightened the rules of admissibility and enhanced the trial judge’s gatekeeping role. These developments seek to ensure that expert opinion evidence meets certain basic standards before it is admitted. The question on this appeal is whether one of these basic standards for admissibility should relate to the proposed expert’s independence and impartiality. In my view, it should.

Expert witnesses have a special duty to the court to provide fair, objective and non-partisan assistance. A proposed expert witness who is unable or unwilling to comply with this duty is not qualified to give expert opinion evidence and should not be permitted to do so. Less fundamental concerns about an expert’s independence and impartiality should be taken into account in the broader, overall weighing of the costs and benefits of receiving the evidence.

15Justice Cromwell went on to describe the basic structure of the law relating to admissibility of expert opinion as set out in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. The first step of the threshold inquiry has four requirements that must be met for admissibility:

1. Relevance;
2. necessity in assisting the trier of fact;
3. absence of an exclusionary rule; and
4. a properly qualified expert.

16The second step in the Mohan admissibility test requires the trial judge to balance the probative value of expert evidence against its prejudicial effects. At para. 45 of White Burgess, Justice Cromwell concluded that an expert’s lack of independence and impartiality goes to this second step of the threshold inquiry; it will affect the admissibility of the evidence in addition to being considered in relation to the weight to be given to the evidence if admitted.

17The Supreme Court’s analysis in White Burgess was further developed and applied by the Ontario Court of Appeal in Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 584. In that case, the trial judge qualified an expert to testify on behalf of the defence, despite some serious reservations about the expert’s methodology and independence. The trial judge cited White Burgess and appeared to rely upon Cromwell J.’s statement that, in the first step of the threshold inquiry, it would be quite rare for proposed expert’s evidence to be ruled inadmissible.

18The Court of Appeal ruled that the trial judge failed to proceed to the next step of the analysis; namely a consideration of the cost-benefit analysis in admitting or excluding the expert’s testimony. In considering what the trial judge should have done in that case, the court said the following at paras. 60 through 63:

60 Under the White Burgess framework, and in most other leading cases on the admissibility of expert evidence, the issue of admissibility is decided at the time the evidence is proffered and the expert witness’s qualification is requested by a party. To the extent that this is possible, it should be the norm.

61 In the present case, however, the trial judge appears to have assumed that, once Dr. Bail was qualified as an expert, his gatekeeper role was at an end. The trial judge erred in law in reaching that conclusion.

62 A trial judge in a civil jury case qualifying an expert has a difficult task. She must make a decision based on an expert report that will, in most cases, never be seen by the jury. While the report provides a roadmap of the anticipated testimony and specific limits may be placed on certain areas of testimony, the trial judge obviously cannot predict with certainty the nature or content of the expert’s testimony.

63 Where, as here, the expert’s eventual testimony removes any doubt about her independence, the trial judge must not act as if she were functus. The trial judge must continue to exercise her gatekeeper function. After all, the concerns about the impact of a non-independent expert witness on the jury have not been eliminated. To the contrary, they have come to fruition. At that stage, when the trial judge recognizes the acute risk to trial fairness, she must take action. (Internal citation omitted)

19The court added, at para. 65:

65 As mentioned above, the cost-benefit analysis under the second component of the framework for admitting expert evidence is a specific application of the court’s general residual discretion to exclude evidence whose prejudicial effect is greater than its probative value. This general residual discretion is always available to the court, not just when determining whether to admit an item of evidence, but after the admission stage if the evidence’s prejudicial effect is only revealed in the course of its presentation to the trier of fact.

20The court found that the trial judge ought to have excluded the expert evidence based on:

1. [The expert’s] suspect methodology in forming his opinion.
2. His apparent lack of independence in deliberately interpreting the results of his testing in a manner which fit his theory of the case.
3. His apparent lack of independence in deliberately ignoring those parts of the medical records which did not fit his theory of the case.
4. His adoption of an advocacy role during testimony.¹

21While there was no motion before the trial judge to exclude the expert’s evidence, the Court of Appeal concluded that that the trial judge was not powerless and should have taken action:

70 I would go further and state that, given the importance of a trial judge’s on-going gatekeeper role, the absence of an objection or the lack of a request for a specific instruction does not impair a trial judge’s ability to exercise her residual discretion to exclude evidence whose probative value is outweighed by its prejudicial effect.

22Bruff-Murphy was a jury trial. While the cost-benefit analysis is particularly important in those circumstances, the Court of Appeal’s direction to trial judges is not confined to jury cases. This can be seen in Rolley v. MacDonell, 2018 ONSC 6517, 87 C.C.L.I. (5th) 56, where Justice Corthorn considered the admissibility of the defence expert’s evidence after the expert had been qualified as a litigation expert. Corthorn, J. said the following at para. 209:

209 The concerns with respect to Dr. Faris’ testimony did not arise at the qualification stage; the concerns arose both during examination-in-chief and cross-examination. Regardless of timing, because of the court’s gatekeeping function, it is incumbent on the court to carry out a cost-benefit analysis with respect to Dr. Faris’ testimony. The Ontario Court of Appeal describes this aspect of the court’s function as a “discretionary gatekeeping step”. (citations omitted)

23Justice Corthorn expressed concerns with the expert’s methodology. Those concerns extended to the preparation of a script that the expert relied on in giving his evidence. At paras. 224, 225 and 226, Justice Corthorn highlighted another issue:

224 I also have a number of specific concerns with Dr. Faris’ testimony. The first such concern is with respect to the contents of a Consultation Note prepared by Dr. Grabowski and dated June 2011. Dr. Grabowski saw Mark at the Ottawa Hospital Pain Clinic, on referral from the Cancer Clinic.

225 In her note, Dr. Grabowski states, “Mr. Rolley describes an approximately 15-year history of significant total body pain.” During his examination-in-chief, Dr. Faris identified that portion of Dr. Grabowski’s note as “one of the most significant areas of [Mark’s] past history”, adding that “there was really extensive documentation over many years of a pattern of wide-spread body pain.”

226 In cross-examination, Dr. Faris acknowledged that he was unable to corroborate the statement made by Dr. Grabowski regarding a “15-year history of chronic pain”. Dr. Faris then testified that the reference to the 15-year history of chronic pain was not significant to his analysis on causation. Dr. Faris’ flip-flopping in his testimony, in particular on the critical issue of causation, is one of the specific concerns contributing to my conclusion that Dr. Faris was not objective when giving evidence. (Emphasis added)

24The examples from Rolley and Bruff-Murphy are not an exhaustive list of the types of failures that can be noted when finding that an expert’s evidence is not fair, objective and reliable.

25Most recently, in Bruno v. Dacosta, 2020 ONCA 602, the Court of Appeal issued some practice notes on the use of joint books of documents. The appeal focused, in part, on the trial judge’s reliance on hearsay statements contained in documents served pursuant to s. 35 of the Evidence Act, R.S.O. 1990, c. E. 23. Dealing with the court’s discretion to admit or reject evidence, the Court said this at para. 65:

65 This case highlights the deplorable tendency in civil cases of admitting evidence subject only to the weight to be afforded by the trial judge: “Seduced by this trend towards [evidentiary] flexibility, some judges in various jurisdictions have been tempted to rule all relevant evidence as admissible, subject to their later assessment of weight”: I agree with his trenchant comments. (Internal citations omitted)

Analysis

26For the reasons that follow, I conclude that Dr. Burns failed in his duty to provide this Court with fair, objective and reliable evidence. Therefore, his evidence should not be admitted in this trial. While a balanced, well-considered opinion may have been of some benefit, the probative value of Dr. Burns’ evidence is outweighed by its prejudicial effect.

Procedural Failure

27I start with the failure of the defendants to comply with rule 53.03 with respect to Dr. Burns’ evidence. Dr. Burns delivered his first report on September 25, 2018 and a supplemental report on October 10, 2018. As of 2018, Dr. Burns opined that “in the absence of the referenced incident, Mr. Boone would have had to transition to primary wheelchair mobility for safety reasons within 5–10 years of February 2011.”

28At trial, Dr. Burns revised that opinion down to 1-2 years. This new opinion surprised the plaintiffs and was not referenced in defence counsel’s opening statement.

29Dr. Burns’ explanation for this dramatic change was unsatisfactory. He said that he came to this revised conclusion after recently reviewing his notes and records. This revised opinion was not based on any new information.

30Dr. Burns claims to have informed defence counsel of his revised opinion in the weeks preceding the trial. The revised opinion was not communicated to the plaintiffs; no supplemental report was served; and the defendants did not seek leave as required by rule 53.03(3)(a). In the circumstances, I permitted Dr. Burns to testify subject to cross-examination.

31This new opinion was not simply a procedural failure. It has a direct bearing on the only issue in this trial - the assessment of damages.

32Dr. Burns attempted to justify his revised opinion in a number of ways. First, he attempted to distinguish his earlier opinion by adding that he was now considering the issue of safety. He gave the example of a person who is capable of driving a car for another 5 to 10 years. He submits that it would be a different issue than if they could drive safely. That comparison provides no assistance because Dr. Burns’ original opinion, from 2018, is that Paul Boone would have to transition to a wheelchair in 5 to 10 years “for safety reasons”. Dr. Burns’ answer is part of his persistent tendency to distinguish an answer previously given.

33Second, Dr. Burns testified that he made the original estimate of 5 to 10, years in his supplementary report, at a time when he was traveling in Australia and therefore did not have access to his notes and documents. He said that he simply made his best estimate of Paul’s prognosis. When it was put to him in cross-examination his explanation in that regard was wrong, Dr. Burns doubled down and insisted he was correct. Page 8 of his first report of September 28, 2018, was then shown to him. He therein first recorded his prognosis of 5 to 10 years- at a time when he was still in Toronto, with all his notes and records at his disposal. This pattern of dogmatically sticking to an answer until getting caught in a verifiable contradiction started early in the trial.

34Curiously enough, defence counsel responded to the confusion arising from Dr. Burns’ answers on cross-examination by stating that they are not relying on the new opinion, but rather on Dr. Burns’ original 5 to 10-year estimate. The defendants argue that Dr. Burns was simply confused; yet they have not provided the court with an explanation as to how this confusion somehow enhances the reliability of the opinion.

Methodology - The Gowling’s Chronology

35Prior to Dr. Burns’ testimony the plaintiffs sought confirmation of all the records provided to Dr. Burns in the preparation of his opinion. A list of those documents is attached as “Appendix A” to Dr. Burns’ September 28 report. A review of that list reveals that it includes the following significant documents:

7. Chronology of care (prepared by Gowling WLG for reference purposes only)²
8. Excerpts of the Ottawa Hospital Records-Admission of February 4, 2011 to March 31, 2011
9. Excerpts of various records relating to Mr. Boone pre-admission functional status: (a) OHCC neurology report, Dr. Guberman, February 11, 2010 (b) TRC consultation/clinical note, Dr. MacGregor, May 27, 2010 (c) OHCC Physiotherapy Assessment, October 18, 2010 (d) OHCC Discharge Summary, Dr. Lesiuk - Admission October 14, 2010 to November 19, 2010 (e) This Item was omitted but would have included a report of Dr. Vidya Sreenivasan of Jan. 2011 (f) TRC Occupational Therapy Discharge Summary - Admission December 6, 2010 to January 24, 2011 (g) TRC Physiotherapy Discharge Summary, - Admission of December 6, 2010 to January 24, 2011.
10. Physio First records from January 21, 2009 to August 25, 2014.
11. Community Care Access Center records, June 1, 2010 to October 26, 2015.
12. MRI Cervical, Thoracic and Lumbar Spine. 19 This item was omitted but would have included an X-Ray report of May 27, 2010.

36Dr. Burns clarified that he did not excerpt the information provided; the word “excerpts” appears in the documents that were provided to him. He did not have an opportunity to review the entire Boone file; he reviewed only what was sent to him.

37A quick review of Appendix A reveals that most of the medical documentation listed therein relates to Paul’s post-incident condition. Dr. Burns insisted that he also had a 1999 neurology report from Dr. Sean Marshall, which is not listed in Appendix A. He repeatedly referred to having reviewed hundreds of pages of documents.

38In cross-examination, Dr. Burns said that he would have applied the same methodology in the preparation of his report for this trial as he would in preparing an article or a study for publication and peer review. He insisted that he would never rely on a chronology prepared by an unknown person from Gowlings; he would confirm the information in the Chronology by referring to the source documents. This statement proved to be incorrect as disclosed by the following exchanges:

• Dr. Burns was referred to page two of his September 2018 report that refers to a January 26, 1999 neurology consultation note from Dr. McKim. Dr. Burns said that this reference to Dr. McKim was a “typo”, for which he is responsible, and the reference should be to Dr. Marshall. Dr. Burns was sure that he had Dr. Marshall’s report even though it is not listed in Appendix A. Dr. Burns was taken to the Chronology. Curiously, the Chronology contains the same “typo” reference to Dr. McKim, and the relevant entry in the Chronology mirrors the language found in Dr. Burns’ report. Even so, Dr. Burns insisted that he had not relied on the Chronology, and that he had reviewed Dr. Marshall’s report when preparing his own report.

• Dr. Burns was then taken to page one of his September 2018 report wherein he cites a different consultation note from Dr. McKim - one dated November 2, 1998. That note is not listed in Appendix A. Dr. Burns insisted that he had the November 2, 1998 note when preparing his report. It was, however, shown to Dr. Burns that the reports of Drs. Marshall and McKim had not been sent to him prior to preparing his report. Once again, Dr. Burns insisted that he did not rely on the Chronology. It was then disclosed to the Court (in Dr. Burn’s absence) that Dr. Marshall’s report and Dr. McKim’s report had been sent to him after the commencement of the trial. In response, defendants’ counsel suggested that Dr. Burns might not have remembered correctly or might be confused.

• Dr. Burns was referred to page two of his September 2018 report wherein there is a description of a fall that Paul had on August 12, 2008. There is no record of a fall at that time in Appendix A. Dr. Burns said that the fall was described somewhere else, in a physiotherapy record. Once again, he was taken to the Chronology, and an entry that contains language similar to that used by Dr. Burns in his report. Once again. Dr. Burns insisted that he had looked at the source documentation and that this was his approach. He admitted that, at most, he may have copied the description contained in the Chronology; but he did not rely on it.

• Dr. Burns’ September 2018 report describes another fall and an x-ray taken on January 21, 2009. Once again, there is no radiology report of that date listed in Appendix A. The radiology report is found in the Chronology, again in language similar to that used by Dr. Burns in his report. Once again it was put to him that he did not verify the source information and that he relied on the defendants’ (counsel’s) version of events. Once again, Dr. Burns insisted that he would never rely on such a chronology.

• Dr. Burns’ September 2018 report refers to an office note of May 14, 2010 from Dr. Fletcher, which referenced issues with Paul’s mobility. Dr. Fletcher’s note does not appear in Appendix A. It is referred to the Chronology. Yet again, Dr. Burns insisted that the had not relied on the Chronology and that he had reviewed the source documentation, even though it is not listed anywhere in the documentation provided.

• Dr. Burns’ September 2018 report includes a reference to a CT scan taken on October 13, 2013. That CT scan is not listed in Appendix A, but is referred to in the Chronology. Dr. Burns said that he recalled reviewing the hospital records from the relevant admission, but these records are not listed in Appendix A either. Once again, the language in Dr. Burn’s report mirrors the language in the Chronology. Once more, Dr. Burns insisted that he did not rely on the Chronology and that he had viewed the source documentation.

• In the same paragraph of his September 2018 report, Dr. Burns refers to CT images taken on October 20 and 21, 2010. These are not listed in Appendix A. Dr. Burns said that the reports of these images would have been included in the same hospital records that are not referenced in Appendix A. As in the previous examples, language describing the results of that imaging is found in the Chronology. Dr. Burns continued to insist that he had not relied on that document.

• Later in his September 2018 report, Dr. Burns refers to a note from Dr. Wiebe. That note is not included in Appendix A, but Dr. Burns insisted that it would have been included in the same hospital records that he would have seen but are not listed in Appendix A. A reference to Dr. Wiebe’s note appears in the Chronology. One last time, Dr. Burns disagreed that he had relied on the Chronology and he maintained that he had reviewed the hospital records containing the note.

39A lunch break followed the portion of the cross-examination summarized above. On returning from the lunch break, Dr. Burns informed the court that he had re-examined his records and that he wished to revisit some “inaccuracies” in his evidence. He admitted that he had “misrepresented” that he had the October 2010 hospital records. He believed that the material that he had in his possession did support his report, but he had indeed relied on the Chronology. He claimed that he made a request for additional documentation, namely an MRI report of the spine and the x-ray report of May 2010. While he recently obtained the hospital records of 2010, he did not review them before the preparation of his initial reports.

40There was considerable confusion as to what documents were sent to Dr. Burns and when the documents were sent. Dr. Burns clarified that the MRI and x-ray were requested in 2018, before he wrote his reports. The reports of these images are listed in Appendix A as items 18 and 19. These documents were never in issue in Dr. Burn’s cross-examination.

41Dr. Burns said that the 2010 hospital records were sent to him in the month preceding the trial. Dr. Burns was unsure why he received these additional records. Dr. Burns admitted that he did not have Paul’s entire file from 1999 to 2010. He confirmed that he was “mistaken” when he had given his previous answers about having reviewed the source document when he wrote his report. He admitted that his reliance on the Chronology was not his usual procedure.

42Dr. Burns said he did not appreciate the “nuances” when he testified. He did rely on the narrative set out in the Chronology, even though he did not know who prepared the document. When it was put to him that his opinion is entirely premised on a chronology prepared by someone else, Dr. Burns then claimed that he had substantial information other than the Chronology. The “substantial information” is said by Dr. Burns to be the documents listed in Appendix A. It was pointed out that those documents are only “excerpts”; documents that someone at the Gowling firm had selected and sent to him.

43In the end, Dr. Burns confirmed that he never had an opportunity to (a) look at the entire medical records, or (b) satisfy himself that he had access to all relevant information in arriving at his opinion. He never asked for the complete file.

44In summary, when it was put to Dr. Burns that, on eight occasions he had relied on the Chronology, instead of the source documents in preparing his report, Dr. Burns steadfastly disagreed. It was only after he had a brief opportunity, over the lunch break, to reflect on his evidence that Dr. Burns admitted that:

1. He was “mistaken”. While he may have received the hospital records in the weeks preceding the trial, he did not have them when he prepared his 2018 reports;
2. He relied on the Chronology; and
3. When preparing his reports for this matter, he did not follow his normal procedure - a methodology that he traditionally follows even when preparing a study or an article for peer review.

45Dr. Burns never assessed Paul in person. Dr. Boone’s assessment and expert opinion were entirely dependent on the documentation that he reviewed.

46In my view, Dr. Burns’ admitted “mistakes” and his limited review of documents, selected by an unknown person at the direction of defendants’ counsel, are sufficient to undermine the reliability and necessary impartiality of Dr. Burns’ evidence. It is difficult to accept Dr. Burns’ explanation that he was simply mistaken when he repeatedly testified that he had not relied on the Chronology.

47The court might accept a mistake with respect to one or two items in Dr. Burns’ report. However, once the reliance on the Chronology was repeatedly brought to Dr. Burns’ attention, he “doubled down” seriously undermining his credibility. Dr. Burns resiled from his evidence only when he realized that his explanation would not be believed.

48I could conclude my analysis of Dr. Burns’ evidence here, but there are other features of it that require comment.

Four Areas of Importance to Dr. Burns

49In his examination-in-chief, Dr. Burns referred to Paul’s complicated history. He identified four areas that were relevant to him and described them as the most important conditions with respect to Paul’s pre-incident history:

1. Paul’s hydrocephalus and developmental delays impacting his cognitive ability;
2. The profound kyphoscoliosis of Paul’s spine;
3. The nerve damage to Paul’s lower legs below the knees; and
4. The finding of Myelopathy.

1. Paul’s developmental delay

50This subject is outside Dr. Burns’ area of expertise, yet Dr. Burns opined that Paul’s developmental delay would interfere with Paul’s ability to learn and acquire new skills. In Dr. Burns’ view, this development delay would interfere with Paul’s ability to learn how to use a walker and would necessitate Paul’s quick progression to a wheelchair.

51There is no evidence of Paul’s intellectual ability; no neuropsychological testing has been conducted. It is apparent from his cross-examination that Dr. Burns had no knowledge of Paul’s intellectual ability or of the severity of the developmental delay.

52Dr. Burns did not know the following things about Paul:

• He was an excellent cribbage player and that he taught other adults how to play the game;
• He operated a shredding machine at the sheltered workshop;
• He was consistent in his use of the Bipap machine for his sleep apnea;
• He was faithful with respect to the administration of his eye drops every single night and that he kept a record of the exact time of administration; and
• He always took his medications without being reminded.

53With respect to the eye drops and medication, and these other skills, Dr. Burns had no idea how long it took Paul to learn these skills or who had taught him those skills.

54In any event, the defendants’ counsel conceded that (a) Paul’s developmental delay is a subject-matter outside Dr. Burns’ area of expertise, and (b) the issue of Paul’s developmental delay is for the court to decide.

2. The Kyphoscoliosis

55Dr. Burns reviewed x-ray images of Paul’s spine, dated May 27, 2010, with specific reference to the Cobb angle. This is a measurement of the curvature of the spine. He said that Paul’s Cobb angle is 97 degrees, which is “as severe as it can get”. Paul’s rib cage is in contact with his pelvis. Dr. Burns said that this scoliosis would have a profound impact on Paul’s ability to walk. More effort would be required for Paul to keep his balance. The scoliosis would also have an impact on the Paul’s internal organs. Lung capacity would be affected. The scoliosis would also impact the nervous system and the signals sent to the brain.

56In cross-examination, Dr. Burns was referred to articles that describe persons with a Cobb angle of 143 degrees. Dr. Burns would not accept that the contents of the article changed his assessment of Paul’s curvature as being “as severe as it gets”. He attempted to qualify his answer by saying that 97 degrees was as severe as it could get for Paul because his rib cage encountered his pelvis. Dr. Burns admitted that he did not observe this contact between rib cage and pelvis on any image.

57Dr. Burns conceded that he had functional “textbook” knowledge of scoliosis and that he did not rely on any study of patients with scoliosis in forming his opinion on the likely trajectory of Paul’s scoliosis. Dr. Burns knew that Paul had his last surgery for scoliosis at age 11 or 12 and would have stopped growing at the age of 18 or 19. Dr. Burns did not know when Paul’s scoliosis had progressed to 97 degrees or how long Paul had been able to function with such a Cobb angle. These admissions fundamentally undermine Dr. Burns’ conclusions on this important point.

3. The nerve damage to Paul’s lower limbs

58Dr. Burns cited Paul’s lower extremity nerve injuries as being an important factor in Paul’s pre-existing condition. He said that Paul had profound weakness in his ankles prior to 2011. Dr. Burns acknowledged that he did not have source documents dated prior to 2011. He said there had been many assessments performed by many different individuals over the years, but the ones that stood out in his mind are the neurological assessments of Dr. Marshall from 1999 and Dr. MacGregor in May 27, 2010 and thereafter.

59Dr. Burns specifically referred to Dr. MacGregor’s report of May 27, 2010 and her examination of Paul’s muscle strength. Dr. Burns described this examination as the cornerstone of a physiatrist’s examination. In his view, Dr. MacGregor’s examination revealed profound motor impairment at Paul’s ankles and that this impairment had important implications for balance and as a risk factor in walking.

60Dr. Marshall’s report was not provided to Dr. Burns until October of 2020 (the month in which the trial commenced). The defendants concede that Dr. Marshall’s report does not contain the results of any neurological testing.

61In cross-examination, Dr. Burns admitted that he assumed that the results of Dr. MacGregor’s her examination were valid and that he assumed full effort by Paul when that testing was conducted. He was unaware of Dr. MacGregor’s evidence in this trial that she had concerns about the reliability of her testing.

62In examination-in-chief, Dr. Burns testified that Paul had pre-existing weakness below the knees due to pre-existing nerve issues. Dr. Burns also testified that Paul suffered from complications from hamstring surgery, which made Paul’s lower extremities weak below the knees. In cross-examination, Dr. Burns was unable to identify the source for either portion of that testimony. While he continued to refer to “multiple examinations”, the only source Dr. Burns could identify was Dr. MacGregor’s report of May 27, 2010. After a long series of evasive and non-responsive answers, Dr. Burns had to admit that was not aware of any neurological examination prior to May 27, 2010. The evasive and non-responsive answers are troubling, not only in substance, but because Dr. Burns was answering plainly-worded questions.

63Dr. Burns agreed that he would never rely on a lay opinion. While Dr. MacGregor’s report does mention nerve damage, the source of that information is Beth. It is clear that Dr. Burns did not verify an important piece of information foundational to his opinion.

64In his examination-in-chief, Dr. Burns testified that the neurological findings from Dr. MacGregor’s examination of May 27, 2010 were significant in assessing Paul’s ability to ambulate. There was a further re-assessment by Dr. MacGregor in October 2013. By this time, Paul was confined to a wheelchair, yet the neurological test results were very similar to those from Dr. MacGregor’s pre-incident assessment of Paul. When questioned why the results could be similar now that Paul’s function had completely changed, Dr. Burns reversed his opinion and said that there was no correlation between the test results and function.

65Once again, Dr. Burns evidence on important point is fundamentally undermined.

4. The finding of myelopathy

66Myelopathy is an injury to the spinal cord due to compression. Dr. Burns described myelopathy as a condition that develops over time and one which is secondary to the progression of Paul’s scoliosis. According to Dr. Burns, the myelopathy could progress and cause additional injury to the spinal cord.

67Dr. Burns obtained that information from his review of the February 9, 2011MRI of Paul’s spine. He said that the MRI disclosed significant atrophy in the thoracic segment (emphasis mine). He explained atrophy as shrinkage of spinal cord tissue, that develops over a long period of time. While he acknowledged that there could be improvement in the myelopathy, he did not expect this in Paul’s case because of the long duration of the insult.

68Dr. Burns testified that said the most important part of the of the MRI report was the section labelled IMPRESSION. In examination-in-chief, Dr. Burns was asked about the last three statements in that section of the report. He was not taken to the first sentence in that section, which contains the important qualifier: “[m]arkedly limited study as described.”

69In cross-examination, Dr. Burns was eventually able to confirm that Dr. Gilkstein, who interpreted the results of the MRI, was not a neuroradiologist. Dr. Burns said that this would not make a difference to his consideration of the contents of the report. He had confidence in the substantive contents of the report despite not knowing Dr. Gilkstein and not having reviewed the image himself.

70In cross-examination, Dr. Burns was taken to the “FINDINGS” section of the report, where it is noted that the study “is limited by marked motion and susceptibility artifacts”. Dr. Burns conceded that that there is no information in the report that identifies where these artifacts were found in the imaging. This section of the report goes on to add that “[t]he evaluation of the spinal cord is limited by motion artifact.”

71The next sentence is important. It reads, “There is evidence of mild spinal cord atrophy, worst involving the thoracic segment.” Dr. Burns was referred to his evidence-in-chief, when he said that there was “significant atrophy”. When presented with this apparent contradiction, Dr. Burns attempted to qualify his earlier answer by saying that any spinal cord atrophy was significant. He conceded that that there are different degrees of atrophy. He denied that he was trying to present his evidence in a light that would favour the defendants.

72While he testified in chief that he did not expect any significant improvement in Paul because of his long-standing condition, Dr. Burns admitted that he did not know when the insult to Paul’s spine had occurred, nor when the atrophy developed. He agreed that it could range from “months to years” before February 2011. Dr. Burns was persistently evasive in his answers on this subject. His evidence on this important point cannot be accepted.

Other Areas of Dr. Burns’ Evidence Require Discussion

73There are two other areas of Dr. Burns’ evidence that need to be discussed (a) Paul’s pre-accident function, and (b) the history of Paul’s falls.

a) Paul’s pre-accident function

74In order to from an opinion regarding the eventual progression Paul’s pre-incident conditions, it is necessary to have a clear picture of his ability to function prior to February 2011. There is very little medical evidence of Paul’s pre-incident functioning listed in Dr. Burns’ report. Apart from the Chronology, the documents addressing the pre-incident period are items 9 (a), (b), (c), (d), (e), (f), (g) 18 and 19.

75Dr. Burns was provided with Occupational Therapy and Physiotherapy Discharge Summaries. While Dr. Burns did have the transcripts from the examinations for discovery of Beth and Larry, he made very little reference to them in evidence. These transcripts would have given him a clear picture of Paul’s pre-incident functioning.

76This Court had the benefit of the evidence of Gisele Thibodeau and Anne Marie Bloom. They are employed by the Ottawa Carleton Association for Persons with Developmental Delay and have both known Paul for a long time. They described Paul’s prior ability to function in detail. Dr. Burns was given summaries of their evidence, but he admitted that he did not look at them prior to testifying in court. He did not obtain any records from the Loeb Centre, which recorded Paul’s activity in that sheltered workshop setting.

77Given Paul’s complex history, Dr. Burns agreed that a functional assessment would best be performed by an occupational therapist and a physiotherapist who have the expertise and opportunity to make such an assessment. The most significant records and objective assessment of Paul’s function prior to February 4, 2011 can be found in the progress notes and discharge summaries of the occupational therapist, Monica Robichaud, and the physiotherapist, Michelle Morin. Both individuals testified with respect to Paul’s return to pre-incident function upon his discharge from six weeks of rehabilitation, following his hospitalization for significant brain surgery in October 2010.

78Ms. Morin’s Discharge Summary is important. It is a two-page document and is listed in Appendix A. The first page contains the Clinical Outcomes Variables Scale (COVS) used to rate Paul’s performance on a number of tasks. Performance is rated on a scale from 1 to 7. Item 7 details: Performance of Ambulation – Endurance. In this case, the rating refers to Paul’s ambulation with a four wheeled-walker. A score of 3 equals an ability to walk less than 50 meters. The number “3” is circled on page one of the summary.

79Ms. Morin’s actual assessment is found on page two of the summary, wherein she gave Paul a score of 5. This equals an ability to walk less than 500 meters. Dr. Burns agreed that this was a significant difference from a score of 3. Ms. Morin testified that, over time, Paul’s endurance could have increased.

80At two locations in his report, Dr. Burns writes that Paul’s endurance is less than 50 meters. When that error was pointed out to him, Dr. Burns disputed that his report was wrong and said that there was conflict information in Ms. Morin’s Discharge summary and Dr. Streenivasan’s discharge notes. Dr. Streenivasan’s notes were not produced, but it is conceded by the defendants that her notes make no reference to Paul’s endurance when walking. This portion of Dr. Burns’ evidence is another example of him doubling down and refusing to concede he had made mistake - even on a point such as this one, where the mistake could have easily been explained.

81Dr. Burns did not ask for the physiotherapy or the occupational therapy progress notes. He did not seek the results of a home study conducted by Ms. Morin. Dr. Burns seemed unaware of Ms. Robichaud’s evidence that, if a wheelchair was necessary for Paul, she would have said so. Ms. Robichaud had no concerns for Paul’s safety. A wheelchair was not recommended for Paul prior to the February 2011 surgical incident. The recommendation was that Paul use a four-wheel walker. Dr. Burns had no evidence that Paul was incapable of using a walker. His conclusions on this point are simply speculation.

b) The History of Paul’s Falls

82The court heard evidence with respect to a number of falls sustained by Paul in the years prior to the final fall on October 13, 2010. There is a reference to a fall in 2008, a serious fall in 2009 (when Paul injured his left shoulder), and two falls at Lavonne before the fall in October 2010. We know that Paul fell on another occasion when skating with his father. Lastly, there is a reference to a fall in the cafeteria in July of 2010.

83There is very little evidence with respect to the circumstances of these falls. As for the prior falls at Lavonne, there is circumstantial evidence that they occurred when Paul was using the stairs to the lower level. Carole Perreault, the supervisor at Lavonne, said that the railing on those stairs does not extend all the way to the bottom of the stairs. She said that Paul’s prior falls were the reason for his being placed in a main level bedroom during his last stay there.

84Beth offered her understanding of how Paul fell when skating with his father. She described that a child had darted out in front of Paul and his father, resulting Paul’s fall. That evidence is hearsay. Larry was unable to recall the circumstances of the fall at his examination de benne esse. Nevertheless, the evidence suggests that after each fall, Paul attended physiotherapy and made a recovery; much as he did in January 2011.

85Both Dr. Burns and Dr. MacGregor testified that the history of falls was a concern. Both said that “one fall was too many” and that Paul’s last fall, which resulted in a brain injury, is a good example of what could happen.

86Dr. Burns agreed in cross-examination that it is not enough to know that a patient has fallen. In teaching his rehabilitation medicine students, he would advise them that the first thing to do is to obtain an understanding of what precipitated a fall. It is important to have an understanding of the circumstances of any fall in order to prescribe treatment or therapy.

87Dr. Burns conceded that he had no information as to the cause of any of the falls that he referred to in his evidence. In the end, his evidence did not assist the court on this significant point.

Conclusion

88When assessing the damages to which Paul is entitled, it would be helpful to the court to have a reliable picture of the anticipated progression of Paul’s pre-incident conditions and the likelihood that he might require a device to ambulate, such as a four-wheeled walker or a wheelchair.

89The defendants argue that, without the evidence of Dr. Burns, the court will, in that regard, have no assistance at all. In support of that argument, the defendants cite the decision of the Supreme Court of British Columbia in United City Properties Ltd. v. Tong, 2010 BCSC 111 at para. 63:

Second, in some cases there may be few practical alternatives to the proposed expert, and so a finding that the expert is too biased could leave the court without any assistance at all. Of course, if the expert is biased, then the negative effect of his or her evidence might actually be worse than having no assistance at all. The availability of alternative experts to assist the court could be incorporated into the relevance analysis, as suggested by the English approach. (Emphasis added )

90The underlined sentence provides an accurate description of the difficulty with Dr. Burns’ evidence.

91Dr. Burns never assessed Paul in person. Dr. Burns’ assessment was limited to a review of documents curated by the defendants’ counsel. Dr. Burns was never presented with a complete picture.

92I cannot conclude that Dr. Burns was intentionally biased. Given that his opinion is based, in large part, on documents that the defendants’ counsel selected and sent to him, I find that there is an inherent bias, from the beginning, in Dr. Burns’ opinion and evidence. Dr. Burns did not recognize the problem with the approach taken: he failed to adopt his standard practice; and he did not seek out any additional information that could have enhanced the reliability of his opinion. In the end, Dr. Burns either misinterpreted or misrepresented key documents and simply assumed the validity of assessments performed by other professionals.

93This was the first time Dr. Burns has testified as a litigation expert. Once Dr. Burns took the stand, it quickly became apparent that Dr. Burns had not anticipated having his opinion subjected to critique in cross-examination. He admitted a mistake only when he ran out of what he realized were unsatisfactory explanations for mistakes that were brought to his attention.

94I conclude that I am unable to give Dr. Burns’ opinion evidence any weight and see no purpose in admitting it. Dr. Burns’ evidence is excluded in its entirety.

95The exclusion of Dr. Burns’ evidence does not, however, leave the court without any assistance. When assessing damages, I will assess the reliability and credibility of those witnesses who assessed Paul at various times before the incident in issue. Those witness include the following people: physiotherapist, Michelle Morin; occupational therapist, Monique Robichaud; physiatrist, Dr. Lynne MacGregor; and respirologist, Dr. Karen Earlam. In addition, the court has the benefit of the evidence of the lay witnesses, also subject to the assessment of their respective credibility and reliability as witnesses.

Footnotes

1. 1Bruff-Murphy at paras. 43, 47 and 55.
2. 2For ease of reference, this chronology is referred to throughout the balance of the ruling as "the Chronology".