Court File and Parties

COURT FILE NO.: CV-19-367-00 DATE: 2024-04-22

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Jeremy Veran, Shawn Veran and Renee Veran Plaintiffs

Paul Harte, Maria Damiano and Ron Bohm, for the Plaintiffs

• and -

George Derbyshire, John McPherson, Russell Clark, Uday Chadha, Susan Graham, Theresa Clinton, Francis Denson, Ralph Suke and Thunder Bay Regional Health Sciences Centre Defendants

Brendan Morrison, Eli Lederman, Madison Robins and Alexa Jarvis, for the Defendants

HEARD: April 19, 2024, at Thunder Bay, Ontario

Mr. Justice S.J. Wojciechowski

Reasons On Motion

Introduction

[1] The defendants bring a motion seeking to address two issues.

[2] The first issues involves two expert reports served by the plaintiffs on Wednesday, April 17, 2024, and whether opinions expressed by the experts can be introduced at trial.

[3] The second issue seeks to address the evidence of five witnesses, summaries of which were recently delivered by the plaintiffs.

[4] The parties were also going to address a third issue today emanating from a motion brought by the plaintiffs which was heard on Tuesday, April 16, 2024. This motion sought relief on a number of issues, including the admissibility of expert evidence disclosed in two defence expert reports. The motion relating to the two defence expert reports was adjourned to today’s date, but at the outset of the hearing the parties advised that the matter had been resolved.

[5] With respect to the two issues before me today – plaintiff expert reports and plaintiff witnesses – given the timeliness of these issues which need to be decided before trial commences on Monday, April 22, 2024, I will provide my decision in an abbreviated fashion with full reasons to follow.

1. Expert Reports of the Plaintiffs

[6] By way of brief background, in response to a motion which was brought by the plaintiffs and heard March 4, 2024, my decision of March 15, 2024, addressed the admissibility of 15 defence expert reports. Most reports were deemed admissible at trial (“Defence Expert Reports”), but some were not.

[7] Since the bulk of these Defence Expert Reports had only been served towards the end of January or beginning of February 2024, and a trial was set to commence Monday, April 15, 2024, once they were deemed admissible, I decided it would only be fair to allow the plaintiffs an appropriate amount of time to respond to the Defence Expert Reports.

In terms of ensuring the Plaintiffs have time to respond to the recent reports of the Defendant Physicians which either do not require leave to rely upon or which I have granted leave, to the extent that they advise me at a Trial Management Conference hearing to be scheduled during the week of March 25, 2024, I am prepared to delay the commencement of the trial to Monday, April 22, 2024, instead of Monday, April 15, 2024. However, I will only agree to do so if counsel confirm the trial can be completed on or before Friday, June 14, 2024.

[8] As a result, the plaintiffs were provided until 4:00 p.m. on Wednesday, April 17, 2024, to serve any supplementary reports responding to the Defence Expert Reports.

[9] By the end of the day on Wednesday, April 17, 2024, the defendants were served with a number of responding expert reports from the plaintiffs. Included in these were two reports which are the subject matter of this motion.

[10] The first report at issue is dated April 17, 2024, from Dr. Firoz Miyanji (“Miyanji Report”).

[11] The second report at issue is from Dr. Simon Levin and dated April 17, 2024 (“Levin Report”).

Position of the Defendants

[12] The defendants assert that both the Miyanji Report and the Levin Report, or portions within each report, do not respond to the Defence Expert Reports and instead respond to other expert reports which were served previously by the defendants. As such, while the plaintiffs were granted time to respond to the Defence Expert Reports, it would be unfair to the defendants if the plaintiffs were permitted to rely upon opinions contained in the Miyanji Report and the Levin Report which addressed expert opinions not included within the Defence Expert Reports.

[13] In addition, the defendants state that the Levin Report raises a new standard of care issue less than one week before trial is set to commence.

Plaintiffs’ Position

[14] The plaintiffs suggest that while Rule 53.03(3)(b) provides for the service of supplementary reports not less than 45 days before the commencement of trial, my decision of March 15, 2024, gave the plaintiffs until 4:00 p.m. on April 17, 2024, to provide the Miyanji Report and the Levin Report.

[15] With respect to the Miyanji Report, I was advised during oral submissions that Dr. Miyanji was working on a draft report addressing opinions expressed by Dr. Siddiqi at the time of the motion which was argued on March 4, 2024. Dr. Miyanji was instructed to hold off on finalizing his draft report pending my decision of March 15, 2024, and when leave was granted to introduce evidence relating to the Defence Expert Reports, Dr. Miyanji was asked to review all those reports and prepare a response.

[16] In addition, at a Trial Management Conference held on April 10, 2024, the defendants advised that two more responding supplementary reports were to be served in accordance with subrule 53.03(3)(c), and Dr. Miyanji was again requested to wait for those before finalizing his report dated April 17, 2024.

[17] The plaintiffs maintain that Dr. Miyanji’s report of April 17, 2024, is comprehensive and raises no new issues.

[18] Finally, if it is necessary to request leave to introduce the evidence set out in the Miyanji Report, the plaintiffs assert they have provided a reasonable explanation and there would be no prejudice to the defendants if leave were to be granted.

[19] With respect to the Levin Report, the plaintiffs maintain that the opinion expressed by Dr. Levin relating to the ordering of an MRI was raised in an earlier report, and that the standard of informed consent is well known to include that reasonable options for treatment should have been presented to the plaintiffs. Whether or not it is new, therefore, should not matter since it is obvious.

[20] The plaintiffs state the standard of care in the Levin Report is based upon the pleading of the plaintiffs which alleges lack of informed consent.

[21] With respect to Dr. Levin’s opinion on the absence of Dr. Derbyshire’s clinical note to support a 1999 appointment with the plaintiffs, this was not something the plaintiffs asked Dr. Levin to address, but no prejudice will result because the issue was canvassed in Dr. Derbyshire’s examination for discovery.

Decision

[22] In my decision of March 15, 2024, I granted leave to the defendants to rely upon the Defence Expert Reports at trial with a right of reply being provided to the plaintiffs. Recognizing that many of the Defence Expert Reports were “first tier” responding expert reports – these late January and early February 2024 reports were the first and only reports from the defendants which responded to the initial round of plaintiffs’ expert reports served months, if not years, before – it was only fair to provide the plaintiffs’ experts an opportunity to review and reply to the Defence Expert Reports.

[23] In order to provide the plaintiffs with as much time as possible to respond to the Defence Expert Reports, it was agreed that the trial would start a week later than originally scheduled, allowing the plaintiffs until the Wednesday before the first date of trial to serve supplementary reports responding to the Defence Expert Reports.

[24] The deadline of 4:00 p.m. on Wednesday, April 17, 2024, was for the service of responding supplementary reports from the plaintiffs to the Defence Expert Reports. This deadline was not established for the service of any responding supplementary reports from the plaintiffs to any of the expert reports served by the defendants.

[25] With respect to the report of Dr. Miyanji, it begins with the following:

I have been asked to review and provide a response to Dr. Fawaz Siddiqi’s report of June 6, 2023 and Dr. Ken Kontio’s supplementary report of February 6, 2024.

[26] On the basis of this introduction, and a review of the Miyanji Report, it is clear that he outlines his opinion evidence in response to two experts who have provided opinions in reports served by the defendants. However, only the report of Dr. Kontio is included in the Defence Expert Reports. The report of Dr. Siddiqi is not a report within the Defence Expert Reports nor was it necessary to consider whether leave was required for the defendants to rely upon the opinions contained in Dr. Siddiqi’s report dated June 6, 2023, at trial.

[27] The balancing of interests and consideration of prejudice to the parties was considered in my decision of March 15, 2024, including weighing the prejudice to the plaintiffs in granting leave to the defendants to use the Defence Expert Reports at trial. This consideration resulted in the plaintiffs being given to the eve of trial in order to respond to the Defence Expert Reports which were served late within this litigation process. At no time during the argument of the motion heard March 5, 2024, was there any discussion of granting time to the plaintiffs to respond to other expert opinions from the defendants which were served within the time lines provided by r. 53.03(3). No request was made to delay the service of any opinions from the plaintiffs’ experts, including Dr. Miyanji, until Wednesday, April 17, 2024.

[28] The Miyanji Report responds to the report of Dr. Siddiqi dated June 6, 2023. The Defence Expert Reports do not include any report from Dr. Siddiqi. Accordingly, my decision of March 15, 2024, does not support the use of evidence at trial set out in the Miyanji Report and which responds to Dr. Siddiqi’s report of June 6, 2023.

[29] Dr. Miyanji’s opinions responding to Dr. Siddiqi’s report of June 6, 2023, should have been served upon the defendants 45 days before the commencement of trial which means before the plaintiffs’ motion was heard on March 5, 2024 at which time the trial date was set to commence April 15, 2024. The explanation provided by the plaintiffs, not set out within any evidentiary record, was that Dr. Miyanji was told to pause his report writing until my reasons were delivered on March 15, 2024. However, this would suggest that there was no ability at that time to comply with r. 53.03(3)(b) since less than 45 days existed before the commencement of trial.

[30] The plaintiffs made an oral request for relief during argument on April 19, 2024, for leave to admit the Miyanji Report pursuant to r. 53.08(1). I decline to do so in the absence of a reasonable explanation, the prejudice to the defendants, and the delay which would be caused in the conduct of the trial.

[31] I recognize that I granted leave to the defendants to rely upon expert evidence served 75 days before the commencement of trial. But I also granted the plaintiffs more than 30 days following my reasons to respond to the Defence Expert Reports. The plaintiffs’ request for leave to rely upon an expert report served less than 5 days before the commencement of trial is not one which I can balance the interests of both parties without adjourning the trial.

[32] To be clear, to the extent that the Miyanji Report addresses Dr. Kontio’s report dated February 6, 2024, those opinions are admissible at trial. Those portions of the Miyanji Report which comment upon the opinions of Dr. Siddiqi as set out in his report of June 2, 2023, are not admissible at trial.

[33] With respect to the Levin Report, similar considerations are in play to those relating to the Miyanji Report.

[34] The Levin Report outlines the parametres of the review being undertaken within its first sentence.

Thank you for the opportunity to respond to Dr. Shevell’s further opinion of September 11, 2023 and Dr. Yager’s further opinion of February 4, 2024 regarding this case.

[35] Dr. Yager’s report dated February 4, 2024, is included in the Defence Expert Reports. Dr. Shevell’s report of September 11, 2023 is not.

[36] The submissions of the defendants do not suggest that any opinions regarding Dr. Yager’s report of February 4, 2024, are fine and that leave should not be granted with respect to the evidence of Dr. Levin regarding Dr. Shevell’s report. Instead, the defendants submit that only a portion of the Levin Report be struck out.

[37] The opinion of Dr. Levin to which the defendants object is the following:

I note that Dr. Derbyshire hand writes on his consult note “CT SCAN NORMAL!” suggesting an unexpected result. Yet he took no further action, did not apparently report this finding to the parents and offered no other investigations such as MRI, as he should have, following his reassessment of Oct. 1, 1996 and his further assessment of Sept. 23, 1999 mentioned in his transcript, for which there are no notes. If he failed to do a full assessment, make notes and prepare a report back to the referring physician, this was substandard.

[38] The defendants maintain that this opinion on the standard of care of Dr. Derbyshire is new, as it does not appear in any of Dr. Levin’s previous reports. When asked, the plaintiffs indicated that a breach of the standard of care on the issue of consent can be found in the Statement of Claim. However, I was not directed to any reference to a similar standard of care opinion in any of the previous reports signed by Dr. Levin.

[39] This standard of care opinion is therefore new, and is not rooted in a previous expert report exchanged between the parties.

[40] Accordingly, I order that the portion of Dr. Levin’s report dated April 17, 2024, as referenced above in paragraph 37 of my decision be excluded.

[41] Similarly, with my decision regarding the Miyanji Report, leave is not granted to admit the new standard of care opinion evidence at trial.

2. Plaintiff Witnesses and Summaries of Anticipated Evidence

[42] The plaintiffs have provided the defendants with summaries of anticipated evidence for five witnesses.

[43] The plaintiffs’ witnesses are: (a) Erik Larson, a friend to the plaintiff, Jeremy Veran; (b) Tia-Ray Alexiuk, cousin to the plaintiff, Jeremy Veran; (c) Darlene Cox, educational assistant for the plaintiff, Jeremy Veran, while he attended high school and college; (d) David Williams, a high school teacher who taught the plaintiff, Jeremy Veran; and (e) Karen Lusignan, who provided nursing support to the plaintiff, Jeremy Veran, for a period of approximately one and a half years.

Position of the Defendants

[44] The defendants’ motion seeks to exclude these witnesses from testifying at trial due to the fact that the summaries of anticipated evidence suggest the possibility that opinion evidence will elicited through their testimony and speak to the cognitive abilities of the plaintiff, Jeremy Veran.

[45] If these witnesses are called to provide opinion evidence at trial, including whether the plaintiff, Jeremy Veran, is intelligent, has a good work ethic, has a quick mind, and has succeeded due to his smarts, the defendants submit that none of the lay witnesses are qualified to provide this opinion evidence. In addition, if this evidence were introduced at trial, then it would be prejudicial and would likely mislead the jury.

[46] Properly qualified experts will be called at trial to address issues relating to the cognitive abilities of the plaintiff, Jeremy Veran. Evidence from lay witnesses on the same issue should not be permitted, and it would not be helpful nor relevant to determining the issues in this litigation.

[47] The defendants provide an example within their factum to support their position.

[48] The anticipated evidence of Erik Larson is that he went to the airport to welcome the plaintiff, Jeremy Veran, back home after a stay at Sick Kids, that he hung out at the Veran household from time to time, that he goes hunting and fishing with the plaintiff, Jeremy Veran, and that the plaintiff, Jeremy Veran, has a good memory and a quick mind.

[49] The first three pieces of evidence are facts. The last statement regarding the good memory and quick mind of the plaintiff, Jeremy Veran, is an opinion.

[50] It is the substance of the opinion evidence which is objectionable to the defendants.

Decision

[51] While I acknowledge that Erik Larson might not be an appropriate person to speak to the quality of the mind and memory of the plaintiff, Jeremy Veran, certainly he should be permitted to lead evidence on the other aspects of his anticipated evidence.

[52] As well, Erik Larson could be asked to describe instances when the plaintiff, Jeremy Veran, relied upon his memory to participate in a discussion, or other instances when he did not take long to respond to a question or an issue, or perhaps delivered a witty come back. I do not know the extent to which Erik Larson could be called to provide evidence, but there are circumstances where his evidence would be admissible if it was not qualified with the adjectives “good” or “quick”. Facts from Erik Larson could be admitted into the trial, without any opinions attached to them, leaving it up to the jury to assess what they mean after the totality of the evidence is introduced, including the cross examination of Larson and various expert opinions which will form part of the evidentiary record.

[53] The defendants pointed out to me that they also do not know exactly what evidence will be led from these witnesses, referencing examples of bald statements without any supporting background or details. While this may be true, each of the summaries include a phone number, and an email address, with one also including a residential address. There being no property in a witness, to the extent that there are gaps in the evidence, the defendants can contact the witnesses with the goal of filling in those gaps.

[54] The plaintiffs’ response to this motion of the defendants, in part, is that it is premature because the delivery of a summary of anticipated evidence of a witness is not an undertaking to call that witness. It is possible that none of the five individuals for whom summaries of anticipated evidence have been provided will be called during the trial. As such, the plaintiffs submit that I should not be making any decisions at this time before it is known whether any of them will be given an opportunity to inhabit the witness box.

[55] I agree.

[56] The nature of the evidence and whether or not it constitutes opinions which are beyond the scope of a layperson should be assessed at the time it is tendered. While I appreciate the efforts of the defendants to front end load these issues so that the jury’s time is not wasted, it is quite possible that all five of these witnesses will take the stand without any questions or answers being objectionable. It is a fact that sorting this out, if we must, will take time during the trial. But until we get there, and objections are made to specific questions or lines of questions, it is not open to me at this time to make a ruling on the admissibility of their evidence.

[57] Again, these reasons are being delivered in order to ensure the jury trial scheduled to commence at 10:00 a.m. on Monday, April 22, 2024, is not delayed. Further reasons expanding upon my decisions will be delivered in due course.

Released: April 22, 2024 The Hon. Mr. Justice S.J. Wojciechowski