IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130315

Docket: M111313

Registry:
Vancouver

Between:

Brenda Andrews

Plaintiff

And

Gail Mainster and
Harold Chaim Gutovich

Defendants

Before:
The Honourable Mr. Justice Pearlman

Oral Ruling on the Expert Report of Dr. Thomas Kay

[1]            
THE COURT:  I will deal now with my
ruling respecting Dr. Kay’s report.

[2]            
The plaintiff applies to adduce in evidence the
expert report of Dr. Thomas Kay, a psychologist, dated October 8, 2010.  Dr.
Kay’s report is a neuropsychological evaluation of the plaintiff. 
Unfortunately, Dr. Kay passed away on August 29, 2012.

[3]            
The plaintiff submits that Dr. Kay’s report
meets the requirements of necessity and reliability and should be admitted
under the principled approach to the hearsay rule, notwithstanding the
inability of the defence to test Dr. Kay’s opinion evidence by cross-examination.

[4]            
The plaintiff wishes to adduce Dr. Kay’s report
in order to prove the truth of the opinions it contains.

[5]            
Dr. Kay was asked by plaintiff’s counsel to
evaluate the nature and extent of possible psychological and/or
neuropsychological injuries suffered by Ms. Andrews in the motor vehicle
accident of October 10, 2009, which is the subject of this action.  Dr. Kay
examined the plaintiff over two days on October 5 and 7, 2010, took a detailed
history from her and administered a series of tests for cognitive capacities,
including intelligence, comprehension and memory.  In addition to describing
those tests and reporting the results achieved by Ms. Andrews, Dr. Kay provided
a prognosis and his opinion that the trauma of the motor vehicle accident
reactivated the plaintiff’s pre-existing post-traumatic stress disorder and
made recommendations for treatment.

[6]            
Hearsay evidence is presumptively inadmissible
because it is generally not possible to test the reliability of hearsay
statements.

[7]            
Under the principled exception to the hearsay
rule, a hearsay statement may be admitted for its truth if it is shown to be
both necessary and reliable.  Here, the plaintiff bears the onus of
establishing on a balance of probability both necessity and reliability.

[8]            
With respect to necessity, in R. v. Larsen,
2001 BCSC 524, Mr. Justice Romilly stated at para. 21:

In R. v. Smith, supra, at paras. 34
35, Lamer C.J.C. for the court noted that "necessity" refers to the
necessity of the hearsay evidence to prove a fact in issue; it does not refer
to the sense of being necessary to prove the prosecution’s case.  He further
stated at para. 36 that:

… necessity must be given a flexible
definition, capable of encompassing diversion situations.  What these
situations will have in common is that the relevant direct evidence is not, for
a variety of reasons, available.

Lamer C.J.C.
then referred to Wigmore’s two classes of necessity as examples of situations
when necessity will be met, one  of which includes situations where the person
whose assertion is offered is dead.

[9]            
In R. v. Khelowan, 2006 SCC 57, Charron
J. for the Court discussed the principled approach to the reliability
requirement.

[10]        
At paras. 61 through 63, Charron J. explained
that because the central underlying concern is the inability to test hearsay
evidence, the reliability requirement is aimed at identifying those cases where
this difficulty is sufficiently overcome to justify receiving the evidence as
an exception to the general rule for the exclusion of hearsay evidence. 
Reliability may be established either by showing that the circumstances in
which the statement was made provide a substantial guarantee of its truth or by
establishing that although the statement is hearsay, its truth and accuracy can
be sufficiently tested.

[11]        
In Khelowan, at para. 79, Charron J.
cited with approval the statement of Lamer C.J. in R. v. B.(K. G.),
[1993] 1 S.C.R 740, on what would constitute sufficient circumstantial
guarantees of reliability in respect of a prior inconsistent statement:

… In considering what would constitute an
adequate substitute in respect of the prior inconsistent statement, he
concluded (at pp. 795-96) that there will be "sufficient circumstantial
guarantees of reliability" to render such statements substantively
admissible where

(i) the statement is made understood oath
or solemn affirmation following a warning as to the existence of sanctions and
the significance of the oath or affirmation, (ii) the statement is videotaped
in its entirety, and (iii) the opposing party … has a full opportunity to
cross-examine the witness respecting the statement.  … Alternatively, other
circumstantial guarantees of reliability may suffice to render such statements
substantively admissible, provided that the judge is satisfied that the
circumstances provide adequate assurances of reliability in place of those
which the hearsay rule traditionally requires.

[12]        
Charron J. then went on to observe at para. 80:

To say that a
statement is sufficiently reliable because it is made under oath, in person,
and the maker is cross-examined is somewhat of a misnomer.  A lot of courtroom
testimony proves to be totally unreliable.  However, therein lies the safeguard
− in the process that has
uncovered its untrustworthiness.  Hence, the presence of adequate substitutes
for that process establishes a threshold of reliability and makes it safe to
admit the evidence.

[13]        
The court is concerned with threshold
reliability when determining the admissibility of hearsay evidence.  The
ultimate reliability of the hearsay evidence is a matter for the trier of fact
to decide on the entirety of the evidence at trial.  However, as Charron J.
stated in Khelowan at para. 93:

… Relevant
factors should not be categorized in terms of threshold and ultimate
reliability.  Rather, the court should adopt a more functional approach as
discussed above and focus on the particular dangers raised by the hearsay
evidence sought to be introduced and on those attributes or circumstances
relied upon by the proponent to overcome those dangers.  In addition, the trial
judge must remain mindful of the limited role that he or she plays in
determining admissibility − it is crucial to the integrity of the fact-finding process that the
question of ultimate reliability not be pre-determined on the admissibility voir
dire.

Positions of the Parties

[14]        
The plaintiff submits that Ms. Andrews’
cognitive functioning and the underlying causes of her psychological
dysfunctions are a central issue in this case.  Counsel for the plaintiff
argues that Dr. Kay’s report is the only evidence of a comprehensive
neuropsychological evaluation of the plaintiff and provides a unique assessment
of her psychological condition one year after the motor vehicle accident. 
Counsel for Ms. Andrews submits that Dr. Kay’s death renders the admission of
his expert report necessary.

[15]        
With respect to reliability, the plaintiff
submits that Dr. Kay’s certification in his report that he understood his duty
to assist the court and not to be an advocate for any party, and that he had
prepared his report in conformity with that duty and would abide with that duty
if called to testify, provides a sufficient guarantee of reliability.  Further,
Dr. Kay, who had previous experience as an expert witness, understood he would
likely be called to testify, and that he would be cross-examined, and therefore
understood the consequences of making untrue statements.

[16]        
The defendants do not object to the admission of
those portions of Dr. Kay’s report which set out the history the plaintiff
related to him, describe the battery of neuropsychological tests Dr. Kay
administered in order to assess the plaintiff’s cognitive functioning, and set
out Dr. Kay’s conclusions respecting Ms. Andrews’ cognitive abilities, based on
the test results.  The defendants acknowledge that Dr. Kay was the only
witness able to provide evidence relating to the objective testing of Ms.
Andrews’ cognitive functioning one year post accident.

[17]        
The defendants do object to the admissibility of
Dr. Kay’s prognosis and psychological opinion, both of which the defendants
submit contain a substantial subjective element which they are unable to test
by cross-examination.  Counsel for the defendants submits that Dr. Kay’s
prognosis and psychological opinion is unnecessary.  The plaintiff has a
psychiatric opinion from Dr. O’Shaughnessy, a forensic psychiatrist.  The court
will also receive psychiatric opinion evidence from the defendants’ expert, Dr.
Vallance.  The defendants do not take issue with Dr. Kay’s integrity. 
Rather, they submit that without the opportunity to cross-examine, there is no
means of adequately testing or assessing the reliability and foundations of Dr.
Kay’s prognosis and psychological opinion.

[18]        
I will deal briefly with the case law cited by
counsel.

[19]        
Counsel referred to various cases where courts
have applied the principled approach to determine whether opinion evidence of a
deceased expert should be admitted into evidence.  In each case, the court
considered whether or not the relevant direct evidence was available from
another source, and whether on the particular facts before the court, there
were sufficient guarantees of reliability to meet the threshold for the
admission of the evidence.

[20]        
In R. v. Larsen, the accused was charged
with murder.  The Crown applied to admit into evidence two autopsy reports
concerning the victim prepared by a coroner who had died before trial.  The
court found that because the coroner’s direct evidence was no longer available,
the requirement of necessity was met.  The circumstances surrounding the making
of the autopsy reports and the coroner’s duty to prepare both reports provided
a circumstantial guarantee of trustworthiness.  Further, there was testimony
from another medical practitioner that corroborated some of the deceased
coroner’s observations.  These factors led the court to conclude that the
threshold requirement of reliability had been met and to admit the autopsy
reports.

[21]        
In Scime v. Guardian Insurance Co. of Canada (1998),
36 C.P.C. (2d) 149 (Ont. Dist. Ct), the defendant applied to admit the report
of a medical examination prepared by a physician who had died before trial. 
The court admitted the medical report.  The deceased physician was a highly
respected orthopedic surgeon who had examined the plaintiff at a critical
time.  Other medical conditions not related to the accident had appeared before
and after the date of his examination.  The court, in exercising its discretion
to admit the report, concluded that it would not be in the interests of the
administration of justice to exclude the report when there was no other
examination of an orthopedic surgeon conducted at the same time.

[22]        
In Tulshi v. Ioannou, (1994) 27 C.P.C.
(3d) 153, the defendant in a motor vehicle action applied to introduce the
report of a deceased engineer which provided the only expert evidence available
concerning the state of repair of the braking system of the defendant’s vehicle
at the time of the accident.  The court balanced the need to have all relevant
evidence available to the trial judge against the plaintiff’s right to
challenge evidence through cross-examination.  In Tulshi, the court
concluded that the importance of the evidence and the fact that it could not be
obtained in any other way took priority over the prejudice suffered by the
plaintiff in being deprived of its right of cross-examination.  In Tulshi,
the court observed that the prejudice to the plaintiff in not being able to
cross-examine could be taken into account by the trier of fact when considering
the weight to be given to the evidence.  Further, the court directed that the
deceased expert’s report be supported by oral evidence of another expert.  The
court required the defendants to provide a detailed witness statement setting
out the observations and conclusions of that expert to the opposing party prior
to trial.  The availability of this pre-trial measure to ameliorate the
prejudice flowing from the fact that the author of the report was not available
for cross-examination distinguishes Tulshi from the case at bar.

[23]        
In DiBattista v. Wawanesa Mutual Life
Insurance Co., 2004 CarswellOnt 8886, the Ontario Superior Court admitted
the consultation note of a deceased treating rheumatologist where it was
satisfied that there was no other way to put the evidence before the jury.  The
court held, following R. v. Smith, [1992] 2 S.C.R 915, that the lack of
testing by cross-examination went to weight rather than admissibility.

[24]        
Conversely, in McPherson v. Bernstein,
(2005) 76 O.R. (3d) 133, the court refused to admit into evidence the report of
a decreased surgeon.  The court, applying Etienne v. McKellar General
Hospital (1998), 16 C.P.C. (4th) 139 (Ont. C.A.), found that the
requirement of necessity was not met because the plaintiffs had not shown that
evidence of a similar quality was unavailable from other sources.  Further, one
of the assumptions on which the opinion was based was contested.  In the
absence of cross-examination, the court was not satisfied that the reliability
requirement had been met.

[25]        
I return now to Dr. Kay’s report.  Dr. Kay’s
report provides the only evidence of a comprehensive neuropsychological
evaluation of the plaintiff’s cognitive functioning one year post accident. 
The necessity requirement is met with respect to those portions of Dr. Kay’s
report that deal with his testing and evaluation of the plaintiff’s level of
cognitive functioning.  I also find that those parts of Dr. Kay’s report that
record the history he took from Ms. Andrews, discuss the tests he administered
and set out his opinions on the results of his testing of the plaintiff’s
cognitive functioning meet the threshold of reliability required for their
admission into evidence.  Dr. Kay was a neuropsychologist trained and
experienced in the use of the standardized tests he administered to the
plaintiff.  Those tests provide a largely objective measure of the plaintiff’s
cognitive functioning.  These factors, combined with Dr. Kay’s certification of
the duties he owed to the court as an expert provide sufficient circumstantial
guarantees of the trustworthiness of this evidence to satisfy threshold
reliability.

[26]        
Different considerations apply respecting Dr.
Kay’s opinion or diagnosis of post-traumatic stress disorder, his prognosis,
and his opinion on the motor vehicle accident as a cause of the plaintiff’s
emotional and psychological disorders.  Those opinions have a significant
subjective component.  They are not predicated upon the objective results of
his testing of the plaintiff’s cognitive capacity.  The nature, extent and
sources of the plaintiff’s psychological difficulties both before and after the
motor vehicle accident are all in issue in this litigation.  There is also a
live issue about whether the plaintiff fully disclosed relevant information
concerning her psychological condition and the various stressors that affected
her from time to time to the counsellors, psychologists and psychiatrists who
have treated or examined her.

[27]        
Defence counsel requested production of Dr. Kay’s
file, including his interview notes, in order to determine whether it might
shed any additional light on the plaintiff’s complex psychological history. 
The file has not been produced and apparently is not available.  Dr. Kay’s
report also refers to a diary kept by the plaintiff following the motor vehicle
accident, which has not been produced, and to the plaintiff having seen Ms. Tracy
Good for counselling for family and relationship issues for 11 years.  Ms. Good
informed counsel that she has shredded all of her records.  If true, that
effectively precludes exploration of a potentially valuable source of
information concerning the causes of the plaintiff’s emotional and
psychological disorders before and after the motor vehicle accident. 

[28]        
In light of the subjective nature of the
evidence concerning the causes and nature of the plaintiff’s emotional and
psychological disorders, and the gaps in the documentary record that I have
discussed briefly, I am not satisfied that Dr. Kay’s professional training as a
psychologist and the certifications contained in his report provide an adequate
guarantee of the trustworthiness of his opinions on these matters to meet the
threshold of reliability for their admission into evidence.  In the
circumstances of this case, there is no adequate substitute for cross-examination
of the expert.

[29]        
Further, the test of necessity is not met for Dr.
Kay’s diagnosis of and prognosis for the plaintiff’s emotional and
psychological disorders.  Relevant direct evidence is available from another
source.  The plaintiff has a comprehensive opinion from Dr. O’Shaughnessy on
the nature and causes of the plaintiff’s disorders, their relationship to the
motor vehicle accident and their treatment.

[30]        
Accordingly, I conclude that those portions of Dr. Kay’s
report beginning at page 20 under the heading "Psychological
Explanations" and continuing with the prognosis, opinion and
recommendations at pages 21 through 23 do not satisfy the tests of necessity
and reliability and are therefore inadmissible.  The balance of Dr. Kay’s
report, with those redactions, will be admitted into evidence.

“PEARLMAN
J.”