Court File and Parties
COURT FILE NO.: CV-14-120967 DATE: 2023-09-22
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Changrun Lu Plaintiff
– and –
Dr. Peter Kalman, Dr. Aleksander Georgievski by his Litigation Guardian Susan Brackenbury, Dr. Ram K. Singal and Dr. Indira Sen Defendants
Counsel: Changrun Lu, Self-Represented Leah Ostler and Akiva Stern, for the Defendants
HEARD: September 12, 2023
RULING RE: ADMISSIBILITY OF DOCUMENTS
McKelvey J.:
Introduction
[1] These Reasons relate to a motion by the defendants for an order prohibiting the plaintiff from referencing at trial the following categories of evidence:
(a) Decisions rendered by the Inquiries, Complaints and Reports Committee (“ICRC:) of the College of Physicians and Surgeons of Ontario (“CPSO”);
(b) Anonymous or unverified reviews of Dr. Kalman and the Shouldice Hospital from public online sources.
[2] This action arises out of two hernia procedures performed by Dr. Kalman at the Shouldice Hospital. Following these procedures the plaintiff filed a complaint with the CPSO about the care he received. He alleges that he was not adequately informed of the risks, benefits and alternative treatments available. He also alleges negligence in the care he received from the defendants in the action.
[3] During the course of the trial, I ruled that the documentation noted above was not admissible. With respect to the CPSO documentation, I ruled that the ICRC decision as well as copies of the physician responses to the CPSO complaint were inadmissible, but that this ruling was without prejudice to the right of the plaintiff to request that other documents be admitted which might not be subject to the statutory prohibition. I also ruled that anonymous or unverified reviews of the defendants and Shouldice Hospital were not admissible as hearsay evidence.
[4] I advised that further reasons would be provided to the parties. These are those reasons.
Documentation Relating to the CPSO Complaint by the Plaintiff
[5] Following the hernia procedures at the Shouldice Hospital, the plaintiff filed a complaint with the CPSO. This complaint generated responses from the physicians who are named as defendants in the action. It also was considered by the ICRC who rendered a decision on July 15, 2016. The plaintiff seeks to admit into evidence copies of the correspondence from the defendant physicians addressed to the CPSO in connection with the complaints. He also seeks to introduce the decision and reasons of the ICRC.
[6] Section 36(3) of the Regulated Health Professions Act, 1991, SO 1991, c 18, however, provides as follows:
No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.
[7] This section has been judicially interpreted. In M.F. v. Dr. Norman Sutherland, 2000 CanLII 5761, the Ontario court of Appeal ruled that this provision is an absolute bar to the admissibility of a CPSO complaint in a civil action.
[8] This conclusion was further reinforced by another recent decision of the Ontario Court of Appeal in K.K. v. M.M., 2022 ONCA 72. At para. 47 of that decision the Court notes that s. 36(3) creates a blanket prohibition against admitting in a civil proceeding any records, reports or documents directly related to a proceeding under the RHPA. The Court goes on to state:
The text of the provision leaves no room for exception or discretion in relation to the specific items mentioned: a record of a proceeding, a report, a document or thing prepared for or statement given at such a proceeding, or an order or decision made in such a proceeding.
[9] In its decision in the K.K. case, the Court notes that anything not specifically mentioned in s. 36(3) is fair game and may be introduced in evidence. So for example, in that case, the fact that a complaint was made was admissible as it was not specially excluded under the language of the section.
[10] In this regard the Court states,
As mentioned, the trial judge noted that the statutory prohibition did not preclude admissibility of evidence of the fact that a complaint was made and did not capture the website information referring to the undertakings given by Dr. Goldstein. We agree. The law is clear that the fact that a complaint was launched, an investigation held, and a decision rendered by the IRC are not covered by s. 36(3) of the RHPA and may be otherwise provable in court, without reference to a prohibited document. [Emphasis in original.]
[11] In the K.K. decision, the Court held that certain undertakings generated by the physician himself were made after the Board had completed its process and released its decision. It goes on to find that public undertakings are not meant to be confidential and were not covered by the prohibition in s. 36(3). They did not preclude their admission at trial or undermine the purpose of s. 36(3). Those documents were, therefore, admissible.
[12] In the present case the two documents that the defence seeks to exclude are in my view covered by s. 36(3) of the RHPA. The first document is the decision of the ICRC. The other documents relate to correspondence which was sent to the CPSO for consideration in relation to the complaints. They both fall within the strict prohibition contained in s. 36(3) and are therefore not admissible.
[13] I do note that in the ICRC decision there is reference to a remedial agreement which was entered into with Dr. Kalman. It is not clear to me whether this remedial agreement would be covered under the prohibition contained in s. 36(3). My decision, therefore, is without prejudice to the plaintiff to seek to admit into evidence other documents which may fall outside the prohibition contained in s. 36(3) of the RHPA. In addition, the plaintiff is entitled to present evidence of the fact that a complaint to the CPSO was made.
Anonymous or Unverified Reviews of the Defendants and Shouldice Hospital from Public Online Sources
[14] The plaintiff is also seeking to introduce into evidence unverified or anonymous posts from alleged former patients of Dr. Kalman which are taken from public websites such as “RateMyMD”. These reports are generally critical of Dr. Kalman and include complaints similar to those being advanced by the plaintiff in this action.
[15] The plaintiff is seeking to admit these documents in evidence at this trial. I have concluded that the complaints are hearsay. That is, the complaints are out of court statements of fact that are offered in a court proceeding for the truth of their contents. None of the statements fall into a recognized exception to the hearsay rule and are therefore presumptively inadmissible.
[16] I have considered the issue as to whether these documents could be admitted under the principled exception to the hearsay rule.
[17] In R. v. Baldree, 2013 SCC 35, [2013] 2 SCR 520, the Supreme Court considered the principled exception to the hearsay rule. In doing so it noted that hearsay evidence is presumptively inadmissible unless it falls under a traditional exception to the hearsay rule. There is no traditional exception to the hearsay rule which would apply in the present case.
[18] A hearsay exception can apply where it is supported by indicia of necessity and reliability if these are both established on a voir dire.
[19] I have considered whether the “necessity” criteria has been satisfied. In the present case I am advised that counsel have been unable to identify any relevant caselaw on the issue of the admissibility for these kinds of statements in a civil proceeding.
[20] With respect to the necessity requirement, it would appear that all but one of the postings was done anonymously. One of the postings did have a name attached but I understand that no one has been able to locate the current whereabouts of this individual. This would suggest that the criteria of necessity has been established. On the other hand, however, the surrounding facts and circumstances of the other cases which are the subject of the comments are not necessarily directly relevant to the facts and circumstances in the case before me. In my view, this detracts in a significant way from the “necessity” requirement. I am concerned that allowing these statements to be admitted into evidence will result in the focus for this trial to be misdirected into a consideration of the context and circumstances of other complaints against Dr. Kalman. This will result in a distraction to the main issues before me which must focus on the conduct of Dr. Kalman in this case. Because the comments deal with complaints which are not relevant to the case at hand I have strong reservations about whether the criteria of necessity has been satisfied in this case. I have concluded that the probative value of this evidence is more than outweighed by its prejudicial value in distracting attention away from what needs to be the focus for this trial.
[21] I also have concluded that there are good reasons to doubt whether the reliability criteria have been satisfied. As noted in Paciocco, David; Paciocco, Palma; and Stuesser, Lee, “The Law of Evidence, 8/e” (2020), the criteria of reliability is about ensuring the integrity of the trial process. The evidence is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. In considering reliability a distinction is to be made between “threshold” and “ultimate” reliability. This distinction reflects the important difference between the admission of evidence and reliance on it. Threshold reliability is for the trial judge and concerns the admissibility of the statement. The trial judge acts as a gatekeeper whose function is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so is to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. Once submitted the trier of fact remains the ultimate arbiter of what to do with the evidence and of whether or not to accept that the statement is true. The text goes on to note that the reliability requirement will generally be made on the basis of two different grounds, namely “substantive reliability” and “procedural reliability”, neither of which excludes consideration of the other. With respect to substantive reliability it is necessary to consider the trustworthiness of a hearsay statement. This could include, for example, whether the person was under a duty to record the statements or the statement was made to public officials, whether the statement was recorded and whether the declarant knew that the statement would be publicized. Relationship evidence is another factor to consider. Evidence of animus or malice in a relationship would taint the reliability of any statements made about a person. Judges need to consider whether the declarant would have any reason to lie. Corroborating evidence may also be considered. In the present case we have no information as to whether the statements may have been prompted by some animus towards Dr. Kalman. We do know that the complainants were quite unhappy with respect to Dr. Kalman’s treatment. However, we have no information about whether the declarants might have an animus to exaggerate or distort the facts of the case.
[22] With respect to procedural reliability, there are few assurances available to support the admissibility of the documents. So for example, the persons making the statements were not under oath at the time of making the statements. The individuals are not available to be cross-examined in court on making the out of court statements. At the time of making the statements, none of the individuals was subject to cross-examination. All of these factors tend to weaken any argument with respect to procedural reliability.
[23] While I am advised that there are no court cases where these types of documents have been sought to be introduced, there are a number of relevant tribunal decisions which have refused admission of this evidence. These decisions include decisions before the Health Professions Appeal and Review Board. In J.V. v. R.P., 2020 CanLII 61269, the Ontario Health Professions Appeal and Review Board was referred to similar complaints made under the RateMyMD website. In their decision, the Board noted:
At the outset of the Review, the Applicant sought to introduce information from a website called RateMyMD that contains comments posted by individuals about a particular physician. The Applicant submitted this information would show a pattern of behaviour that would support her allegations about the Respondent. The Respondent’s Counsel objected to the introduction of this information. In response to questions from the Board, the College representative advised that Committees do not rely on any of the comments found on the RateMyMD website because the complaints are anonymous and unverified. Based on the College representative’s information, the Board decided that the information from the website was irrelevant.
[24] Similar decisions from the Health Professions Appeal and Review Board can be found in the cases of M.Y. v. C.S.T., 2020 CanLII 53031 and D.P. v. M.C.G., 2013 CanLII 12397.
[25] Counsel did provide me with a copy of a decision from the Queen’s Bench for Saskatchewan in the case of Thorpe v. Honda Canada Inc., 2010 SKQB 39. That case involved a preliminary motion in relation to a proposed class action against Honda. It would appear that the application likely permitted hearsay evidence. The evidence in question related to online comments from the internet which Honda Canada Inc. sought to strike from the affidavits filed in support of the certification application. As noted by the Court on the interlocutory motion, a court was entitled to receive affidavit evidence sworn on information and belief. However, in that case the Court struck the online complaints. As noted by the Court in that decision, the internet is an abundant source of information. “Some of the information available is impeccably accurate, while other information is pure garbage. It does not make sense, on the one hand, to conclude that any and all information pulled from the world-wide web is inherently unreliable and ought to be given zero weight; on the other hand, it makes equally little sense to open the door to admitting into court absolutely anything placed on the internet by anybody.”
[26] In that case, the Court considered whether the information came from an official website from a well-known organization, whether the information was capable of being verified and whether the source of the information had been disclosed so that the objectivity of the person or organization posting the material could be assessed.
[27] The Court went on to conclude that there was no objective basis to believe that the various postings had any degree of reliability and refused to admit them.
[28] Similarly, in this case, I have concluded that the indicia of reliability are absent from the postings which the plaintiff seeks to admit. I have therefore concluded that these postings ought not to be admitted into evidence in this case.
Justice M. McKelvey
Released: September 22, 2023
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Changrun Lu Plaintiff
– and –
Dr. Peter Kalman, Dr. Aleksander Georgievski by his Litigation Guardian Susan Brackenbury, Dr. Ram K. Singal and Dr. Indira Sen Defendants
RULING RE: ADMISSIBILITY OF DOCUMENTS
Justice M. McKelvey
Released: September 22, 2023