Children's Aid Society of the Niagara Region v. S.S. and T.F., 2021 ONSC 8582

COURT FILE NO.: 307/19 (St. Catharines)

DATE: 2021/11/11

WARNING

This is a case under the Child, Youth and Family Services Act, 2017, and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Children’s Aid Society of the Niagara Region, Applicant

AND:

S.S., Father, Respondent

T.F., Mother, Respondent

BEFORE: Madam Justice L. Madsen

COUNSEL: Maggie Scull, Counsel for the Applicant Patti Lucas, Counsel for the Applicant Edward Kravcik, Counsel for the Respondent Father, S.S. Ryan Bonin, Counsel for the Respondent Mother, T.F. Marlene VanderSpek, Counsel for the Child, B. Linda McKenzie, Counsel for the Children, R. and W. Sheena Scott, OCL Co-Counsel

HEARD: November 10, 2021

QUALIFICATION RULING

A. INTRODUCTION

[1] On November 10, 2021 I released a ruling in relation to the Society’s request to have Dr. John Burke Baird qualified as a participant expert in this proceeding.

[2] At the conclusion of the day, the OCL asked several questions of clarification in relation to my ruling.

[3] As a result I have prepared an addendum to my ruling. Minor typographical changes have also been made to the text released yesterday. Former paragraph 36 has been modified and replaced by paragraph 40, below.

[4] This Amended Ruling, with the Addendum below, fully replaces the ruling released yesterday.

B. AMENDED RULING

[5] The Society seeks to have the Court qualify Dr. John Burke Baird as an expert in this trial.

[6] While in the Trial Scheduling Endorsement Form the Society indicated that it would seek to have Dr. Baird qualified as a “pediatrician”, as an “expert in the impact of maltreatment”, and as an “expert on the impact of access”, on this voir dire, the Society seeks to have him qualified simply as a pediatrician.

[7] The Society asks that Dr. Baird be qualified as a “participant expert” rather than as a “litigation expert.”

[8] The Office of the Children’s Lawyer (OCL) seeks an Order that Dr. Baird not be qualified to give expert opinion evidence in this trial. Both parents support the position of the OCL.

[9] The court heard extensive evidence on the voir dire. The court also reviewed documents including Dr. Baird’s assessment reports/ notes in relation to the children, his curriculum vitae, documents confirming his maintenance of certification, and documents setting out the objectives of training in pediatrics in Ontario, which was in effect when he was involved with this family. Further, the court accepted as evidence on the voir dire a number of documents regarding the field of child abuse/child maltreatment in Canada and internationally.

Brief Background

[10] Dr. Baird is a pediatrician and the Division Head of the Child Maltreatment Medical Assessment Clinic [“the Clinic”] within the Department of Pediatrics at McMaster University in Hamilton, Ontario. In his testimony on the voir dire, he explained that the Clinic has several clinicians, and whoever is on call receives the referrals that come in that day. The Clinic has a relationship with numerous child protection agencies which refer cases for assessment.

[11] Dr. Baird testified that he became involved with the children in this matter on three separate occasions.

[12] First, he became involved in December 2018, further to a referral by the Hamilton Children’s Aid Society (“Hamilton CAS” or “Hamilton Society”). At the time of the initial referral, the Hamilton Society was working voluntarily with Mr. S. and there were no court proceedings. Dr. Baird met with all three children at that time and prepared a “Child Maltreatment Medical Clinic Note/Assessment” in relation to each of them.

[13] Dr. Baird then became reinvolved in the spring of 2019 pursuant to a new referral from the Hamilton Society. He was asked to provide an assessment with respect to difficulties the children were reportedly experiencing. Dr. Baird assessed all three children again on March 19, 2019, and prepared further “Child Maltreatment Medical Clinic Notes” in relation to each child, each dated April 18, 2019. At this time the Hamilton Society was continuing to work with Mr. S. without court involvement. The evidence at this point in the trial is that the workers hoped to support Mr. S. to parent the children at home.

[14] On May 3, 2019, the children were removed from Mr. S.’s care. Court proceedings were initiated at that time on May 7, 2021 by the Hamilton Society. The file was then transferred to the Family and Children’s Services on Niagara [“the Niagara Society”]. On May 31, 2019, the Niagara Society initiated proceedings seeking a period of six months of interim Society care. The Niagara Society became aware of a prior in-care period for the children. On August 23, 2019, the Niagara Society amended its Protection Application to seek extended Society care, with no access to the parents, for the purpose of adoption.

[15] In October 2019, after proceedings seeking extended Society care had been brought, Dr. Baird received the third request to become involved, this time from the Niagara Society. Further to that referral, Dr. Baird met with the children on a number of occasions and spoke with certain collaterals. He prepared further “Child Maltreatment Medical Clinic Assessments.”

[16] Dr. Baird appears to have ceased his involvement in respect of B. on January 21, 2021; in respect of R. on April 22, 2021; and in respect of W. on October 17, 2019.

Expert Testimony

[17] In White Burgess Langille Inman v. Abbot v. Haliburton Co, 2015 SCC 23 [“White Burgess”], Cromwell J opened the judgment as follows:

Expert evidence can be a key element in the search for the 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. See para 1.

[18] In the child protection context, and in particular in a case such as this where the Society seeks to permanently sever the legal relationship between the children and their parents while severely restricting contact, the dangers associated with admitting potentially unreliable experts are perhaps at their highest. As noted in the Report of the Motherisk Commission, losing one’s child to an Order for extended Society care is the “capital punishment of child protection law.” Thus, the import of rigorously scrutinizing proposed expert evidence can hardly be overstated.

[19] Under the Ontario Family Law Rules, three types of experts are contemplated: joint litigation experts, litigation experts, and participant experts. Only the latter two designations are relevant on this voir dire.

[20] A “litigation expert” is defined in Rule 20.2 as “a person engaged for the purpose of litigation to provide expert opinion evidence.”

[21] A “participant expert” means a person who is not engaged to provide expert opinion evidence for the purposes of litigation, but who provides expert opinion evidence based on the exercise of his or her skills, knowledge, training or experience while observing or participating in the events at issue.

[22] Where a party seeks to call a litigation expert as a witness at trial, that party must serve an expert report at least 6 days before the settlement conference, which report must include an acknowledgement of expert’s duty (Form 20.2) signed by the expert. Other requirements include that the proposed expert must include in the report any instructions provided to him or her in relation to the case, and the expert’s reasons for his or her opinion. See the recent decision of Smith J. in Aldush v. Alani, 2021 ONSC 6410, setting out the applicable test and analysis in the case of a litigation expert.

[23] By contrast, where a party seeks to call a “participant expert” as witness at trial, the acknowledgement of expert’s duty is not required, nor are the documents or information set out in Rule 20.2(2). The party must simply serve notice of the intent to call that proposed witness at least six days before the settlement conference, serve any written opinion of that proposed expert upon which the party intends to rely, and serve, at the other party’s request, a copy of any supporting opinion evidence the participant expert intends to provide.

[24] Having reviewed the caselaw regarding expert evidence, it appears that in many of the reported family law cases where a participant expert is permitted to testify, it has been on consent, unopposed, or with brief consideration of the applicable principles. It seems to be generally accepted in the Ontario caselaw that in most cases, professionals such as treating physicians, treating psychologists, and treating pediatricians may testify as participant experts so long as they stay within a relatively narrow scope, that deriving directly from their involvement and the professional opinions arrived at based directly on that involvement. The court’s ongoing vigilance and gatekeeping is essential regarding the scope of testimony. Bruff-Murphy v. Gunawardena, 2017 ONCA 502; Parliament v. Conley, 2021 ONCA 261.

[25] In this case, by contrast, there was strong opposition, on the part of the OCL and supported by both parents’ counsel, to Dr. Baird testifying as a participant expert. The law is clear that while in general the process for the participation of participant experts is more streamlined, where the court or a party becomes concerned about the nature of the evidence to be tendered by the proffered participant expert, the court must carefully scrutinize the proposed expertise, and, if permitting testimony, equally carefully define the boundaries of the opinions put before the court.

[26] Based on my review of the caselaw, I conclude that principles including the following must guide this court’s determination of whether an individual may be qualified as a “participant expert” in a family law proceeding:

Under Rule 20.2

a. A witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence without complying with the requirements of Rule 20.2 where the opinion is given based on the witness’s observation or on participation in the events at issue and the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training, and experience while observing or participating in such events (Westerhof v Gee Estate, 2015 ONCA 206 at 60; Imeson v. Maryvale (Maryvale Adolescent and Family Services), 2018 ONCA 888 [“Imeson”] at 62; Hoang v Vicentini, 2016 ONCA 723 at 28; and Girao v. Cunningham, 2020 ONCA 260 [“Girao”] at 41.

b. A party does not “engage” an expert to provide opinion evidence simply by calling the expert to testify about an opinion he or she has already formed. Westerhof at 83. The question is not on which party’s behalf the witness testifies, but whether the opinion was formed for the purpose of litigation. Attorney General (Ontario) v 855 Darby Road, Welland, et al, 2017 ONSC 4953 at 29.

c. Participant experts do not testify because they are being paid a fee to provide an expert’s report as contemplated by Rule 20.2. Rather, they testify because they were involved in underlying events and have generally documented their opinions in notes or summaries made at or about the time of their involvement.

d. As a corollary, the opinion of a participant expert is not formed for the purpose of the litigation. The opinion is formed in the ordinary exercise of the professional’s duties.

e. There is a distinction between “treatment opinions”, which involve making a diagnosis, formulating a treatment plan and making a prognosis, and opinions for the purpose of assisting the court at trial, and “litigation opinions”, which are based on consideration of information from a variety of sources for the purpose of assisting the court at trial. Westerhof, at 72.

f. Where participant experts are permitted to testify, typically the opinions sought to be introduced are found in the clinician’s notes and records or in reports prepared for the purpose of consultation. Imeson, at 61. This does not mean that the proposed participant expert may testify about anything in his or her reports. Imeson at 75. Particular caution must be exercised regarding opinion evidence going to the question of causation. Imeson at 90, 100; Westerhof at 115.

g. While there is no longer a general rule barring opinion evidence on the “ultimate issue”, the court must apply the criteria of necessity and cost-benefit in relation to evidence dealing with the ultimate issue. Hoang at 62.

h. Once admitted, the scope of the evidence of a participant expert is limited to his or her observation of or participation in the subject matter in issue in the litigation, and his or her roles and involvement. He or she may also testify to the opinions that went to the exercise of his or her judgment. This is because the opinions are formed while participating in events and as part of the ordinary exercise of expertise. Roher v The Queen, 2017 TCC 55 at 33 and 42 citing Westerhof at 67-70. See also Davies v The Corporation of the Municipality of Clarington, 2016 ONSC 1079 at 36 and 37.

i. Because a participant expert’s opinion is restricted to his or her “observation of or participation in the events at issue”, broader evidence about others “as a group”, will go beyond the scope of the permissible evidence, as it is not based on that observation of participation in or treatment of the individual(s) in question (Imeson, at 74). In Imeson, for example, the mental health clinician was found to have strayed outside the permissible scope as a participant expert he testified as to the “problems typical of survivors of childhood sexual abuse” as opposed to about Mr. Imeson, specifically. See para. 74. In that event, a participant expert’s exemption from the requirements of Rule 20.2(2) is lost. The court must take great care to ensure that opinion evidence exceeding that scope is not elicited by counsel or accepted by the court (Imeson 7, at 58);

j. The evidence of treating physicians, pediatricians, and therapists is often found to be admissible as participant expertise. See for example: CCAS of Toronto v. T.T.L. and S.S., 2019 ONCJ 530 at 285, 286 (mother’s psychotherapist permitted to testify as participant expert, as to observations, mother’s diagnosis, prognosis, mother’s mental health and ability to parent); J.K.L.D. v. W.J.A. 2020 ONCJ 335 at 91(report of mother’s physician admitted as that of a participant expert); CAS of Toronto v S.M.T., 2018 ONCJ 540 (children’s pediatrician found to be a participant expert, not being a “puppet” or hired gun of the Society.” See para 91). See also Marchand v. The Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 O.R. (3d) 97 as quoted in Westerhof). Such evidence is often admitted without challenge “because these witnesses are essentially ‘witnesses of fact’ to the extent that they testify to the facts of their involvement, as well as ‘opinions that went into the exercise of their judgment’.” Roher at 29, 30.

k. It is not the case that any physician or therapist retained or engaged by a children’s aid Society can be qualified only as a litigation expert. Where the evidence of such proffered witnesses is relevant and reliable and within his or her expertise, and where the individual was not retained for the purpose of litigation but rather to provide treatment or services to the child (or, I would add, to a parent), that person may be qualified as a participant expert. See Jewish Child and Family Service v K.S., 2015 ONCJ 246 at 154, 155. That parents participate in assessments provided by Society-retained physicians or psychologists to provide background information may also be relevant (see para 157).

Gatekeeping under White Burgess

1. The court retains its gatekeeper function in relation to opinion evidence of participant experts. Therefore, even where a person meets the definition of a participant expert under the Family Law Rules, the court could exclude all or part of the opinion of a participant expert or rule that all or part of such evidence is not admissible. (Westerhof, at 64)

m. White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23 [“White Burgess”] establishes a two-part framework for the admissibility of expert evidence. That framework applies both in the context of litigation experts as well as participant experts. See Westerhof (para 64), Imeson at 64; Hoang at 31; Girao at 39.

n. In summary, the White Burgess framework can be set out as follows:

i. First Stage, Determination of threshold admissibility: a consideration of whether the evidence is:

1. Logically relevant
2. Necessary to assist the trier of fact
3. Not subject to any other exclusionary rule
4. The expert must be properly qualified, including the requirement that he or she be willing and able to provide evidence that is impartial, independent, and unbiased;
5. In the case of novel or contested science, the underlying science must be reliable.

ii. Second Stage: The judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. At this stage the judge considers:

1. Legal relevance
2. Necessity
3. Reliability
4. Absence of bias
5. Consumption of time and cost.

See White Burgess at 24.

o. “Properly qualified” in the context of a proposed participant expert, does not require the execution of a certificate of expert’s duty as would be required of a litigation expert. Westerhof at 81.

p. In considering whether there is an absence of bias, the issue is the nature and extent of the proposed expert’s connection with the litigation. The question is whether the relationship results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan, objective assistance. White Burgess at 48, 50.

q. It will be “quite rare” for the court to exclude evidence at the first stage of White Burgess due to lack of impartiality based on professional relationship between the proposed expert and the party. Anything less than clear unwillingness or inability to provide the court with fair, objective, and non-partisan evidence should not lead to its exclusion but would instead go to weight. White Burgess at 49.

r. The court’s role as a gatekeeper does not end with granting permission to the proposed expert to testify. The gatekeeping role continues throughout the testimony of the proffered expert, and the court must be vigilant at all times to consider the importance of guarding against the dangers of inappropriate opinion evidence.

Positions of the Parties

The Society

[27] The Society argues that it should be a straightforward matter to qualify Dr. Baird as a participant expert in the field of pediatrics, based on his education, experience, and maintenance of qualifications in that field since 1998. It notes that he has been qualified on many prior occasions as a participant expert. The Society takes the position that while Dr. Baird may not have been “the” children’s exclusive pediatrician, he was “a” treating pediatrician for them. During his involvement, he observed and assessed the children, met with caregivers, and formed opinions, as a pediatrician, about their health and well-being.

[28] The Society seeks an Order that Dr. Baird be permitted to testify about his observations of these children and his recommendations regarding their care based on those observations. Any concerns the court may have about his methodology, it is argued, would go to any weight to be assigned to his evidence, not to its admissibility.

The OCL

[29] The OCL seeks an Order that Dr. Baird not be qualified as a participant expert in this trial. While initially it was suggested that there would be arguments regarding both the threshold analysis under White Burgess, as well as the gatekeeping stage, in argument the OCL focused on the latter.

[30] The OCL argues that Dr. Baird is not a participant expert on the basis that he was not the children’s treating pediatrician. The OCL rejects the characterization by the CAS that he was “a” treating physician. Rather, they argue, he was engaged by the Society to provide child maltreatment assessments for the Society and was thus engaged for the purpose of the litigation. The OCL points to the relationship between the Clinic and at least eight Children’s Aid Societies, and highlights that the vast majority of referrals are from Societies.

[31] In the event that the court finds Dr. Baird to be a participant expert, the OCL argues that his evidence should be excluded on the basis of the court’s exercise of its gatekeeping function. The OCL argues that there are methodological flaws in Dr. Baird’s approach which undermine the reliability of evidence he could provide. Further, the OCL argues that his evidence is not necessary. Finally, it is argued that he is unable to fulfil his role in an independent manner. The OCL submits that any probative value of the potential evidence of Dr. Baird is wholly undermined by its potential prejudicial effect.

Analysis

[32] I have carefully considered the evidence on this voir dire, the arguments of counsel, and the caselaw, whether referred to directly in this ruling or not.

[33] For reasons including the following, I conclude that Dr. Baird shall be permitted to be a participant expert in this trial, with the scope of permissible evidence to be as circumscribed below. I approach this analysis first through an application of Rule 20.2, as well as through the lens of White Burgess.

[34] I note at the outset that the question of whether to qualify Dr. Baird illustrates the omnipresent tension in the role of Children’s Aid Societies in the context of potential and actual court proceedings: that on the one hand, the statutory obligation of Societies is to protect children and to offer services to assist parents in safely caring for their children where possible; and, at the same time, there may be a cross-over to an adversarial relationship characterized in part by evidence-gathering “against” parents when the Society takes the position that it can no longer safely support parents in their parenting roles.

[35] In my view, one of the tasks for the court is to determine, in this context, the primary role undertaken by the proposed expert, even as it is recognized that the evidence of a service provider or support to the family may ultimately be called upon by the Society in support of its case. Conversely, depending on the progress of a matter, a parent, of course, could also seek, at trial, to rely on the evidence of such individuals based on their involvement with the parents or children over time. This does not mean that the individual was engaged for the purpose of litigation, but that as services were provided, opinions of that individual became potentially relevant to litigation.

Under Family Law Rule 20.02

[36] In my view, Dr. Baird was not engaged by the Society to provide expert evidence for the purpose of the litigation. He was contacted by Ms. Atlas to provide assistance on two occasions, at which time the Hamilton Society was working voluntarily with Mr. S., and the evidence is that the intention of the Society was to support him to care for the children safely at home. He assessed the children in December 2018 and again in March 2019, providing recommendations in that regard. That the Society now calls Dr. Baird as a witness does not mean that he was engaged for litigation. Westerhof at 83. He formed his opinions at the time of his involvement, not for the purpose of the litigation.

[37] Dr. Baird works within the Maltreatment Clinic at the McMaster Children’s Hospital as a pediatrician. Pediatric skills are the foundation for his involvement. The skills, knowledge, training, and experience that he brought to the matter all derive from his pediatric background.

[38] The evidence is that Dr. Baird was not the children’s exclusive pediatrician, and other medical professions were involved with them. Dr. Baird stopped seeing the child W. when he became aware that W. was in the care of another pediatrician. At the same time, I accept the argument that Dr. Baird was “a” treating pediatrician for the children. That was his primary function. He undertook tasks associated with that role, such as physical examinations, making referrals, and prescribing and adjusting ADHD medication. He followed the children, in particular B. and R. on an ongoing basis over numerous visits.

[39] I have considered the evidence that when Ms. Atlas initially contacted Dr. Baird she requested an assessment, not that he be a pediatrician for the children. I also accept her evidence that in the spring of 2019 she and Dr. Baird told Mr. S. that Dr. Baird was not the children’s pediatrician. However, in my view Dr. Baird’s role expanded over the course of his involvement, as evidenced by the ongoing consultations with him about the children’s health and well-being. It is the substance of the role that is essential to the analysis.

[40] To be a participant expert, the opinion tendered must be based on “the exercise of [that individual’s] skills, knowledge, training or experience while observing or participating in the events at issue.” Dr. Baird observed the children on a number of occasions, examined them, and interacted with caregivers. He also obtained information from other professionals and from a review of health records. Some of his “knowledge” of the circumstances of the children was based on reports from third parties to caregivers or Society workers. The veracity of those hearsay statements as proven in the trial (or not), are an important consideration in the weight, if any, to be given to his opinions. Caution must also be exercised regarding conclusions and opinions about causation. See Imeson.

[41] While Dr. Baird’s reports may contain opinions that stray beyond the permissible boundaries of Rule 20.2 in the context of a participant expert, that does not bar his testimony or the admission of his reports writ large. As in Imeson, an analysis is required to identify the admissible statements within those reports and those that run afoul of the Rule.

Gatekeeping under White Burgess

Threshold Analysis

[42] This is a trial involving a claim for extended Society care of three young children. The stakes for these children could not be higher. Dr. Baird was involved for over two years as a qualified pediatrician, examining the children, meeting with caregivers, and meeting with Society staff, for the purpose of assessing their health and well-being and making recommendations where appropriate. Evidence which he may be able to provide that relates to those issues is both logically relevant given the subject matter of this trial and necessary, given the relief sought, and the utmost importance of having full and complete admissible evidence before the court.

[43] The evidence, as far as the court is presently aware, is not subject to any other exclusionary rule.

[44] I accept that Dr. Baird is a qualified pediatrician who has maintained his qualifications since his certification as a pediatrician in 1998. I accept, in accordance with the 2008 Objectives of Training in Pediatrics document tendered on the voir dire, that to maintain his certification, he must maintain a wide range of competencies relating to the diagnosis and assessment of children, including but not limited to acute care, nutrition, physical systems of children’s and adolescents’ bodies, surgery, and child maltreatment and neglect. He must be able to assess his young patients, use preventative and therapeutic interventions effectively, and seek appropriate consultation with other health professionals as appropriate. While the document tendered setting out these competencies was not in effect when he trained to become a pediatrician, Dr. Baird testified, and I accept, that these are ongoing requirements he must demonstrate to maintain his certification.

[45] In being proffered as a participant expert Dr. Baird is not required to complete the Certificate of Expert’s Duty and I am not aware that he has done so.

[46] In my view, at the threshold stage of White Burgess, the evidence would suggest that Dr. Baird is adequately impartial, independent, and unbiased so as to testify as a participant expert in this proceeding. That he was called as a witness by the Society does not in and of itself suggest bias. Nor does the fact that the bulk of the referrals to his Clinic come from Children’s Aid Societies imply bias, a lack of independence, or that he is not impartial. In my view it is logical that the majority of the referrals to the pediatric clinic of which Dr. Baird is the lead come from the agency in our community tasked with the statutory obligation to protect children. Dr. Baird is not paid by the Society and his remuneration in no way depends on assessments performed in relation to children referred by any agency.

[47] Further, the fact that the Society previously intended to call Dr. Baird as a litigation expert does not change the parameters of his involvement with these children, the nature of his reports, or the genre of evidence he is able to provide. Counsel for the Society reassessed their litigation approach before trial, as they are entitled to do. While I have concerns with respect to an email sent by Dr. Baird to worker Tina Dale, in my view that goes to the weight to be ascribed to evidence provided by Dr. Baird, rather than to its admissibility.

[48] As the Society is no longer seeking qualification of Dr. Baird in the field of child maltreatment, the OCL is no longer asserting that Dr. Baird is engaged in an area of novel science necessitating a review of the reliability of the science of his field. Pediatrics is a recognized field of expertise. I do note, without making any finding, the extensive Technical Report of the World Health Organization detailing guidelines for the health sector response to child maltreatment. (The OCL opposed the admission of these and other documents relating to standards and methodology in the field of child maltreatment – a separate ruling was made on that issue.)

Gatekeeping

[49] At step two of the White Burgess analysis, the court is, as noted above, engaged in a process of balancing the risks and benefits of admitting the evidence, to decide whether the benefits outweigh the risks. In that process the court must consider relevance, reliability, and necessity as against the counterweights of consumption of time, prejudice and confusion.

[50] I have concerns about the reliability of some of the methods employed by Dr. Baird as testified to in the voir dire. I note for example, his failure to preserve notes of meetings after the preparation of his reports; his choice of collateral sources of information about the children’s health and behaviour; and his admission that he did not seek the children’s views before making certain recommendations directly affecting them. I also have a concern with respect to the extent to which he may have relied on double hearsay provided to him by Society workers as the basis for some of his opinions. Further I have noted what appears to be his failure to consider other potential explanations for the children’s behaviours and difficulties other than the father’s treatment of them.

[51] At the same time, as set out above, in my view, broadly speaking, the evidence of a qualified, experienced pediatrician who met with the children numerous times over a lengthy period is legally relevant and necessary in a trial with the stakes being as they are.

[52] A great deal of evidence has already been elicited on the voir dire. In my view, permitting Dr. Baird’s testimony as a participant expert will not unduly lengthen the trial.

[53] Balancing probative value against prejudicial effect of permitting the testimony, augers in favour of the latter in this case.

[54] The concerns articulated above in terms of Dr. Baird’s processes and other evidence which may go to reliability will be carefully scrutinized in terms of ultimately assigning weight, if any, to his evidence.

[55] I make two further comments: First, I have considered the fact that this is expert evidence called by a state body in litigating against vulnerable parents on a matter of great weight for the children and the parents. I am alive to the potential to unfairly prejudice the parents in the admission of expert evidence and that this must be considered in the overall balancing at the gatekeeping stage. Expert evidence should not overwhelm the entirety of the evidence, simply because it comes from an expert. In this case, however, I find that the admission of the evidence may in fact assist the parents (although I make no determination on that as yet); in addition, I also note that not only are the parents represented by counsel, but no less than three OCL lawyers are also opposing the position of the Society. I am aware that the OCL also seeks to proffer expert evidence in this proceeding. The “scales” are not unfairly tipped in favour of the Society by permitting Dr. Baird to testify as a participant expert.

[56] I have also considered the potential argument that the nature of Dr. Baird’s involvement could be said to have shifted when he became involved for the third time. By that point, the Niagara Society had started proceedings in which they sought extended Society care. I do not find that when the Niagara Society contacted Dr. Baird in October 2019 to meet with the children again this was “for the purpose of litigation.” Dr. Baird had by that point seen the children several times, and I find that this was a continuation of the Society providing services to the children and the family as they are required to do.

[57] I am aware of the recent decision of Justice Baker in Ogwadeni:deo Six Nations Child Welfare v K.L.H., 2021 ONCJ 339, in which the Honourable Justice declined to permit Dr. Baird to testify as a participant expert. That case, which is not binding on this court, is distinguishable in numerous respects: first, in that case, he was proffered as a participant expert in the field of child maltreatment, rather than as a pediatrician; the court in that case found that child maltreatment is a novel theory or technique; and, in that case Dr. Baird assessed the child in question once, when proceedings were commenced, and produced one report. In the circumstances of that case, the court also found that the proffered evidence was simply not necessary.

Conclusion

[58] On all of the above I conclude that Dr. Baird may testify as a participant expert in this trial with respect to the following:

a. The nature and scope involvement in this matter since the first referral from the Society;

b. Evidence related to diagnosis, treatment, or prognosis of each of these children, based on his involvement in this matter;

c. Opinion evidence related to the exercise of his judgment as a pediatrician for these children; and

d. Opinion evidence related to the health and well-being of the children where those opinions were formed as part of the ordinary exercise of his skill knowledge, training and experience while observing or participating in the events in issue.

[59] I will hear from counsel regarding their views on whether the oral evidence on the voir dire ought to be made evidence in the trial itself; and the whether documents made exhibits on the voir dire should be made exhibits in the trial.

[60] To the extent that Dr. Baird’s reports are made exhibits in the trial, I will hear from counsel on whether and to what extent those reports ought to be redacted, having regard to the law and my determinations above.

Addendum

[61] As noted above, after the release of this ruling Ms. Scott asked for clarification of the following:

a. Which sources of information, specifically, may form the basis of Dr. Baird’s admissible opinion evidence and which may not?

b. Whether specific types of opinions are included or excluded, substantively (for example comparing opinions regarding ADHD to opinions regarding maltreatment).

[62] As set out above, two key elements governing admissible opinion evidence of a participant expert are that:

a. That the opinion be based on the witness’s observation of or participation in the events at issue; and

b. That the opinion be based on the ordinary exercise of his or her skill, knowledge, training, and experience, while observing or participating in such events.

[63] Conversely, where opinions are based only on “a review of documents or statements from others concerning what has taken place,” the opinions will be more akin to “litigation opinions” and will not be admissible as evidence of a participant expert (Marchand, as cited in Westerhof, at 70, 72).

[64] The definition of “the events at issue” is not set out in Rule 20. 2 or in Westerhof, nor is a definition of the phrase “ordinary exercise of his or her skill, knowledge, training, and experience.”

[65] In my view, in the case of a treating pediatrician, the “event at issue” is the diagnosis, treatment plan, and prognosis that the pediatrician brings to bear, through his or her involvement with the patient and his or her family. The “event” or “events” cannot logically be the underlying event that brought the patient to the pediatrician for services.

[66] What constitutes the “ordinary exercise of his or her skills, knowledge, training, and experience,” will derive from the competencies expected of the professional in question. In the case of a pediatrician, based on documents tendered on this voir dire, this would reasonably include steps such as the following: direct observation of the child; receipt of direct and indirect information from caregivers and Children’s Aid workers; review of results of testing or examination; review of medical information related to the child or caregivers; assessment and diagnosis; formulation of a treatment plan; and follow up with the child and caregiver, and potentially with other professionals.

[67] In the ordinary exercise of skills, knowledge, training, and experience, a pediatrician might be presented with hearsay, double hearsay, or unverified information. These sources may comprise part of the basis for the diagnosis, treatment plan, and/or prognosis. The court’s knowledge of those statements will assist in understanding the basis for the opinion. That does not, of course, render those statements true, but provides context and narrative. Where it is shown, in the trial, that underlying statements of that nature were not accurate, or where the is little or no proof of the underlying facts, this may weaken or invalidate some or all of the participant expert opinion.

[68] For example:

a. A parent brings a child to the pediatrician with an apparently injured arm. The parent says “the teacher told me my son fell off the swings in the playground and hurt his arm.” The pediatrician will observe and assess the child, ask the child what happened, perhaps obtain an x-ray, diagnose the injury, and recommend next steps, all as part of the ordinary exercise of his or her pediatric function. That the child apparently fell from the swings may assist the pediatrician in assessing the nature of injury and he or she might recommend a treatment plan that includes staying inside for recess or staying off the playground swings.

b. Clearly, that does not render the hearsay statement about how the injury happened, true. If in fact the child did not fall but instead slept awkwardly on his arm, it might be that the injury has nevertheless been accurately diagnosed (or not), but the treatment plan may no longer be reasonable or logically connected to the presenting injury.

[69] Thus the weight to be given to some or all of the pediatric opinion will depend on the pediatrician’s sources of information and the extent to which other evidence in the trial confirms or does not confirm that information. In the above example if other witnesses testify credibly that the child fell in the playground, that would tend to confirm the assessment of the pediatrician, including the basis for the treatment recommendation that the child stay inside for recess or stay off the swings. If there is no other evidence that the child fell in the playground, or contradictory evidence suggesting another probable cause of the injury, that will tend to diminish the weight to be given to the opinion.

[70] In the interests of streamlining the process in this trial, recognizing that we are now twelve days in, with, I am told, upwards of twenty further days required, I provide the following guidance on the implementation of the principles set out in my ruling and above.

[71] In general, Dr. Baird’s opinions as a participant expert pediatrician will be found to be admissible in this trial where:

a. The opinion relates to these children specifically;

a. and

b. Those opinions are based on Dr. Baird’s direct observation and examination of these children; or

c. Recognizing the ages of the children, where those opinions are based on the direct observation of the children by caregivers or Society workers or others with whom he has spoken or met in the course of his work with this family; or

d. Where the opinions are based on information about the children or the children’s circumstances, provided to him by other professionals, caregivers or workers;

a. and

e. Where the opinion was based on the ordinary exercise of Dr. Baird’s skills, knowledge, training, and experience as a pediatrician (for clarity, this could include a review of health records, or consultation with other medical professionals involved with the children as part of the ordinary exercise of pediatric functions);

f. Where the opinion can be said to be a “treatment opinion,” that is, an opinion that involves the making of a diagnosis, treatment plan, or making a prognosis; and,

g. Where that treatment opinion is within the scope of a treatment opinions generally or routinely provided by a pediatrician.

[72] As noted above, the court must be cautious regarding conclusions and opinions about causation, as directed by the caselaw.

[73] For clarity, and in response to the question posed by Ms. Scott, my ruling does not provide that Dr. Baird may opine on some substantive issues (ADHD, for example) but not others (alleged abuse or neglect). That determination relates to the competencies of pediatricians. Where Dr. Baird’s opinion, arrived at within the guidelines set out above, results in an opinion about one or more of these children that is within the competency of a pediatrician, that opinion will likely be found to be admissible. Evidence tendered and accepted on the voir dire in relation to competencies may be of guidance to counsel in that respect. The weight to be assigned to such opinion, if any, is another matter.

[74] It is my hope that the guidelines above will assist counsel in:

a. Resolving what I understand are extensive objections to certain paragraphs of Society affidavit materials, sought to be admitted in the trial;

b. Resolving the issue of any redactions to be made to the numerous reports of Dr. Baird for the purpose of their admission in evidence in the trial, if that is sought;

c. Providing clarity such that the admissible testimony of Dr. Baird may be elicited and heard in an efficient manner.

[75] Having said that, in my continuing role as gatekeeper with respect to expert evidence, I will continue to hear argument, as required, on issues related to Dr. Baird’s opinions as a participant expert as requested and necessary. The above is intended as a general guideline only to help ensure the smooth progress of this long trial.

[76] The children in this case are in need of permanence and a resolution to this case. They deserve a fair, focused and efficient process. I ask counsel to do their utmost to use the guidance above to streamline discussions regarding admissibility. This court is well-versed in recognizing evidence which falls within and outside the acceptable parameters and to assigning appropriate weight. Every admissibility determination need not become a lengthy trial unto itself while three young children wait. And wait.

L. Madsen, J.

DATE: November 11, 2021