Court File and Parties

COURT FILE NO.: CV-21-00000309-0000 DATE: 2024Oct24

ONTARIO SUPERIOR COURT OF JUSTICE

In the estate of ELIZABETH MARGARET ANDERSON, deceased

BETWEEN:

WENDY ISABEL ANDERSON Applicant – and – ESTATE OF ELIZABETH MARGARET ANDERSON, deceased, DOUGLAS THOMAS ANDERSON, ROBERT WALTER ANDERSON and DIANE CATHERINE WRAY Respondents

Counsel: S. McMahon, for the Applicant L. Rafferty, for the Respondents, Douglas Thomas Anderson and Robert Walter Anderson A. Hummel and T. Lin, for the Respondent, Diane Catherine Wray

HEARD: October 21, 2024

TRANMER J.

DECISION ON VOIR DIRE

(Admissibility of Expert Report)

[1] The applicant seeks an order in the Application finding that a document dated January 5, 2016 is a valid and lawful holograph will and written by her mother.

[2] The respondents, who are the siblings of the applicant, take the position that the deceased did not have the testamentary capacity at the time of the document and therefore that the only lawful will of the deceased was the one which she prepared with a lawyer in 2012.

[3] The respondents retained Dr. Hermann, who is a geriatric psychiatrist specializing in the assessment, management and research of memory disorders in late life, including Alzheimer’s disease, dementia associated with cerebrovascular disease and other dementias. In his report, he indicates that he has been extensively involved in medical legal aspects pertaining to the elderly, specifically in the area of testamentary capacity. He indicates that he has multiple publications pertaining to capacity and the elderly. His CV is lengthy and substantive.

[4] The respondents asked him to give his opinion on 2 questions by way of review of the information provided to him. At no time did he meet with or treat the deceased.

[5] Firstly, he was asked, did the deceased have a sound and disposing mind?

[6] Secondly, he was asked, were suspicious circumstances present at the time of the making of the purported holograph will or at any time during the two-year period referenced above? He was told by counsel that suspicious circumstances can be raised by any facts that would tend to call into question the deceased’s ability to freely make testamentary dispositions for property.

[7] He was provided with the application record and the responding record, Manulife reproductions, Home and Community Care Support Services’ records and the records of the deceased’s family and treating doctor.

[8] In his report, Dr. Hermann briefly summarized the litigation. He reviewed and summarized medical records from 2010 until the date of death. He also reviewed and summarized the Home and Community Care Support Services documents.

[9] He stated that for the reasons given in his report, it was his opinion that there was a significant risk that Betty lacked testamentary capacity when she wrote the holograph will dated January 5, 2016.

[10] He did not directly answer the second question as to whether there were suspicious circumstances but rather gave his opinion for the reasons stated that not only was Betty highly susceptible to undue influence because of her cognitive functional and behavioural impairments but that, the influence necessary to be considered undue would be minimal indeed.

[11] Counsel agree that the law governing the admissibility of this report is the test set out in R. v. Mohan, [1994] S.C.J. No. 36.

[12] The applicant opposes the admissibility of the report.

[13] The applicant concedes that the tests of relevance and no other exclusionary rule are met and satisfied in this case.

[14] The applicant submits that the necessity and qualification requirements of the Mohan test are not met. The applicant also submits that the report should be found inadmissible in the second phase of the Mohan test, the cost-benefits analysis.

Necessary

[15] The applicant submits that the report is not necessary to assist the trier of fact to understand and assess the medical records and the care notes. She submits that those records are written in plain English and well within the understanding and ability of the judge hearing the Application to fully consider.

[16] The applicant takes issue with Dr. Hermann merely summarizing the records of the family doctor and the caregivers in considering the affidavit evidence of the parties including that there was some persecutory ideation towards the respondent Diane.

[17] In my view, Dr. Hermann’s report clearly meets the requirements of an expert witness as set out in the authorities.

[18] In particular, the report meets the requirements set out by Justice Sopinka, in R. v. Abbey, [1982] 2 S.C.R. 24. at paras. 44-46.

44 With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. An expert’s function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate. “An expert’s opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary.”: R. v. Turner, [1975] Q.B. 834, 60 Cr. App. R. 80 at 83, [1975] 1 All E.R. 70, per Lawton L.J.

45 An expert witness, like any other witness, may testify as to the veracity of facts of which he has first-hand experience, but this is not the main purpose of his or her testimony. An expert is there to give an opinion. And the opinion more often than not will be based on second-hand evidence. This is especially true of the opinions of psychiatrists.

46 As stated by Fauteux J. in Wilband v. R., [1967] S.C.R. 14 at 21, 2 C.R.N.S. 29, 60 W.W.R. 292, [1967] 2 C.C.C. 6:

The value of a psychiatrist’s opinion may be affected to the extent to which it may rest on second-hand source material; but that goes to the weight and not to the receivability in evidence of the opinion, which opinion is no evidence of the truth of the information but evidence of the opinion formed on the basis of that information.

[19] I find that the report provides opinion with respect to highly technical specialized medical concepts and that Dr. Hermann is best able to assess and consider the various observations reported in the records, the test results indicated and the reason for and the impact of the medications prescribed for the deceased.

[20] I find that this expert report is required for this court to understand the totality of these complex medical concepts, and that without such an opinion, the court would not be in a position to make an informed decision on the issues in question.

[21] It is to be noted that the family doctor and the caregivers were not specifically considering or addressing testamentary capacity or undue influence in the course of performing their duties.

Qualification

[22] The applicant submits that the doctor should have declined the retainer and pointed out that he has no expertise on the legal question of what is a sound and disposing mind.

[23] The applicant also points out that the records before him contained references to a state of mind possessed by the deceased that is contrary to his opinion and that the doctor made no reference to such reported observations. The applicant submits that in doing so, the doctor demonstrated that he is not impartial, independent and nonbiased.

[24] The applicant submits that the doctor has no expertise with respect to “suspicious circumstances”.

[25] The applicant points out that Dr. Hermann contradicts the MoCA test result of February 2, 2012 unreasonably.

[26] I find that Dr. Hermann meets the requirements of the properly qualified expert is set out in Mohan paragraph 31:

31 Finally the evidence must be given by a witness who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify.

[27] That test is also set out in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] S.C.J. No. 23, para 36:

36 Our Court has confirmed this position in a recent decision that was not available to the courts below:

It is well established that an expert’s opinion must be independent, impartial and objective, and given with a view to providing assistance to the decision maker (J.-C. Royer and S. Lavallée, La preuve civile (4th ed. 2008), at No. 468; D. Béchard, with the collaboration of J. Béchard, L’expert ( 2011), chap. 9 ; An Act to establish the new Code of Civil Procedure, S.Q. 2014, c. 1, s. 22 (not yet in force)). However, these factors generally have an impact on the probative value of the expert’s opinion and are not always insurmountable barriers to the admissibility of his or her testimony. Nor do they necessarily “disqualify” the expert (L. Ducharme and C.- M. Panaccio, L’administration de la preuve (4th ed. 2010), at Nos. 590-91 and 605). For expert testimony to be inadmissible, more than a simple appearance of bias is necessary. The question is not whether a reasonable person would consider that the expert is not independent. Rather, what must be determined is whether the expert’s lack of independence renders him or her incapable of giving an impartial opinion in the specific circumstances of the case (D. M. Paciocco, “Unplugging Jukebox Testimony in an Adversarial System: Strategies for Changing the Tune on Partial Experts” (2009), 34 Queen’s L.J . 565, at pp. 598-99).

(Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, at para. 106)

[28] I find that on the record before me, the applicant has not established that the doctor lacked the necessary impartiality, independence and non-bias.

Mohan - Part Two

[29] The admission of this expert report will involve minimal additional time to the hearing of the Application on its merits and its expense is not great.

[30] For the reasons I have stated and considering the applicant admitting that the report is relevant and my finding that it is necessary and that Dr. Hermann is qualified, I find that the probative value of the report outweighs any prejudicial impact as identified in the authorities. It is more than a summation of the reports contained in the record.

[31] Clearly, Dr. Hermann applied his education, training, and experience to consider the information placed before him in arriving at an opinion that involved consideration of medical observations, tests and medications and an assessment of them.

[32] The report connects the information contained in the records to capacity.

[33] The applicant submits that memory is not always a straight line, but in my view, that is a matter for consideration of the Application on its merits.

Decision

[34] For these reasons, the report of Dr. Hermann is admissible.

Tranmer J.

Released: October 24, 2024