Sumeet Kaur Dhanju-Dhillon

This appeal concerns the admissibility of participant expert evidence in a civil jury trial involving allegations of sexual assault.

The respondent sued for damages for sexual assaults allegedly committed in the mid-1990s.

A mental health clinician who treated the respondent in prison was permitted to give evidence as a participant expert.

The trial judge admitted the clinician's unredacted reports and allowed him to testify about their contents.

The Court of Appeal found that the clinician exceeded the proper scope of a participant expert by providing opinions on whether the alleged sexual assaults occurred and whether the respondent suffered harm caused by such assaults.

The court held that these opinions failed to meet the threshold requirements for admissibility under the Mohan/White Burgess test and that their prejudicial effect outweighed their probative value.

A new trial was ordered.

The defendants, Home Services Energy Inc. and The HSE Group of Companies Inc. ("HSE"), brought a motion seeking particulars of the plaintiffs' (Enercare Inc. et al., "Enercare") statement of claim, specifically the identities of customers to whom alleged misrepresentations were made, and for the production of certain contracts.

Enercare's action alleged misrepresentations leading to customer loss and sought damages and injunctive relief.

The court granted the request for customer names, finding them essential for HSE to properly plead its defence, particularly under Rule 25.06(8) for misrepresentation allegations.

The court also ordered production of "lost contracts" with its former customers, which formed the basis of its damages claim, but declined to order production of contracts between HSE and former Enercare customers.

The plaintiff sought to admit the evidence of Dr. Kerry Smith, a mental health clinician who provided therapy to the plaintiff in prison, as a participant expert in a civil action for damages for alleged sexual abuse.

The court ruled on the admissibility and scope of Dr. Smith's evidence, qualifying him as an expert and finding his evidence relevant to psychological harm and the occurrence of abuse.

The court applied the "participant expert" framework from Westerhof v. Gee Estate, allowing testimony based on observations, impressions, and treatment documented in his reports, but precluding opinions extending beyond these limits without compliance with Rule 53.03.