IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150304

Docket: S126934

Registry:
Vancouver

Between:

Michael Jason
Paur, by his Committee, Jacqueline Rita Shak

Plaintiff

And

Providence Health
Care, Dr. Tracy Ann Pickett,
Sheona Yard, Trevor Eichel and Theresa (a.k.a. Tess) Chevrette

Defendants

And

Dr. Tracy Ann
Pickett

Third
Party

Before:
The Honourable Madam Justice S. Griffin

Oral Ruling re Expert Reports

[1]           
THE COURT: This is a medical malpractice claim brought
against the physician, Dr. Pickett, and the remaining defendants, the
hospital and hospital nurses (the “Hospital Defendants”) involved with the
plaintiff’s care at the time of the incident giving rise to this claim.

Objections to Expert Reports

[2]           
The Hospital Defendants argue that the expert
opinion reports of Dr. Stanley Semrau, Dr. Gordon Wood and Charles
Kierulf sought to be tendered by the plaintiff are inadmissible as not meeting
the form and content required by the Supreme Court Civil Rules, B.C.
Reg. 168/2009, R. 11-6 [Rules] and contrary to the common law
principles regarding the admissibility of expert opinion evidence.

[3]           
They make these objections based on the written
statements of qualifications and written reports. They reserve the right to
make further challenges based on cross-examination of the experts, if the
reports make it through this preliminary challenge.

[4]           
The rule governing the form and content of
expert reports is R. 11-6(1) which provides:

(1) An expert’s
report that is to be tendered as evidence at the trial must be signed by the
expert, must include the certification required under Rule 11-2 (2) and must
set out the following:

(a) the expert’s name, address and area of
expertise;

(b) the expert’s qualifications and
employment and educational experience in his or her area of expertise;

(c) the instructions provided to the expert
in relation to the proceeding;

(d) the nature of the opinion being sought
and the issues in the proceeding to which the opinion relates;

(e) the expert’s opinion respecting those
issues;

(f) the expert’s reasons for his or her
opinion, including

(i)   a description of the factual
assumptions on which the opinion is based,

(ii)   a description of any research
conducted by the expert that led him or her to form the opinion, and

(iii)   a list of every document, if any,
relied on by the expert in forming the opinion.

[5]           
I must keep in mind the overall objectives of
the Rules as set out in R. 1‑3 which provides:

Object

(1) The object
of these Supreme Court Civil Rules is to secure the just, speedy and
inexpensive determination of every proceeding on its merits.

Proportionality

(2) Securing the just, speedy and
inexpensive determination of a proceeding on its merits includes, so far as is
practicable, conducting the proceeding in ways that are proportionate to

(a) the amount involved in the proceeding,

(b) the importance of the issues in
dispute, and

(c) the complexity of the proceeding.

[6]           
I am concerned about keeping this trial efficient.
We are in the third day of trial and no witnesses have been called because the
Court has been hearing various motions of the Hospital Defendants. I am told to
expect additional motions in respect of multiple other experts which the
plaintiff intends to call. It will not be an efficient use of trial time for me
to stand down to compose lengthy reasons for judgment on each application
regarding each expert, and yet the parties need my rulings to guide them as the
trial moves forward. As such I must necessarily be brief in my reasons. Despite
the brevity of these reasons I can assure the parties that I have considered
the extensive oral submissions and authorities provided to me by them.

[7]           
The main complaints of the Hospital Defendants are
that these experts are not qualified to give the opinions on the subject
matters on which they opine and they do not properly describe the reasons for
their opinions. The Hospital Defendants also argue that the opinions do not
meet the common law test for admissibility of expert opinion evidence.

[8]           
The common law principles for the admissibility
of expert opinion evidence set out by the Supreme Court of Canada were
summarized in the case of Keefer Laundry Ltd. v. Pellerin Milnor
Corporation, 2007 BCSC 899 at paras. 5 and 6 [Keefer Laundry],
as follows:

[5] Before dealing with the specifics of the
reports, it is useful to briefly review the principles governing admissibility
of expert opinion. In R. v. Abbey, [1982] 2 S.C.R. 24, the Supreme Court
of Canada said that the function of an expert witness is “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.” The expert’s opinion
is usually based on assumed facts and its value depends on the extent to which
those facts are proved through other evidence.

[6] In R. v. Mohan, [1994] 2 S.C.R.
9, the Court set out four essential criteria for the admissibility of expert
opinion:

(a)   relevance;

(b)   necessity in assisting the trier of fact;

(c)   the absence of any exclusionary rule;

(d)   a properly qualified expert.

[9]           
These principles were expanded upon more
recently in the case of Maras v. Seemore Entertainment Ltd., 2014 BCSC
1109. As summarized in that case at paras. 12, 14 and 15, the Supreme
Court of Canada has emphasized that the court must fulfill a gatekeeper role
with respect to opinion evidence to ensure only evidence that meets the legal
requirements and is within the bounds of the expert’s expertise is admitted: R.
v. Mohan, [1994] 2 S.C.R. 9 at 23-25; R. v. Sekhon, 2014 SCC
15 at para. 46; and R. v. J.-L.J., 2000 SCC 51 at paras. 25-29.

[10]       
The Hospital Defendants argue that one purpose
of providing notice of an expert opinion is to allow the opposing party to
properly prepare for cross-examination, and if appropriate to secure a response
expert opinion. I agree and will come back to this point.

[11]       
I do note that it is not uncommon in complex
litigation of this sort for an opposing party to retain an expert to assist
that party in finding any flaws in the delivered expert’s opinion, or in better
understanding the technical or scientific issues at issue even if the
critiquing expert does not provide an expert opinion for use at trial. I point
this out because the complaint by an opposing party that it did not truly
understand all of the scientific foundation for the expert’s opinion can only
go so far, keeping in mind that the opposing party can utilize resources of its
own to examine the science.

Background Context

[12]       
It is necessary to understand the background
context of the plaintiff’s proposed expert opinion evidence.

[13]       
The claim alleges that late in the day on May 23,
2011, the plaintiff, who had a history of mental illness, was distraught
after a marital dispute, had consumed a large quantity of alcohol, and
threatened to commit suicide. He was brought to the hospital by police and
emergency services. There he was assessed by a physician in the emergency
department, Dr. Pickett. Dr. Pickett certified him under the Mental Health
Act, R.S.B.C. 1996, c. 288, as being a person with a mental disorder
who required care, supervision and control for his own protection. He was
therefore involuntarily detained in the hospital.

[14]       
The claim alleges that after this the plaintiff
was put in a locked psychiatric ward which contained a bathroom with a locking
door and ligature points above the ceiling. There were other rooms in the
psychiatric ward which were “secure” and did not have ligature points, but he
was not put in one of those rooms.

[15]       
Early in the morning of May 24, 2011, the plaintiff
went into the bathroom and attempted to hang himself with his hospital gown. He
was rescued before he died, but it is alleged that he suffered brain damage.

[16]       
The plaintiff alleges that the Hospital Defendants,
namely Providence Health Care, and the nurses on duty assigned to his ward when
the incident happened, breached the standard of care and were negligent in the
provision of care to him and that the hospital breached the Occupiers
Liability Act, R.S.B.C. 1996, c. 337, all by failing to ensure that
the location provided for his care was safe given his suicidal ideation.

[17]       
Now having put in context the proposed expert
evidence, I turn to the three expert opinion reports at issue.

1.   
Dr. Semrau

[18]       
Dr. Semrau is a psychiatrist who provides
an opinion on the measures and standards applicable to psychiatric facilities
to ensure the safety of suicidal patients. He also provides an opinion as to
the adequacy of the circumstances in which the plaintiff was placed at the hospital.
He further provides opinion evidence explaining typical characteristics and
behaviour of patients who are in positions similar to the position the
plaintiff was in when he was taken to the hospital and certified under
the Mental Health Act and detained in the hospital.

[19]       
Subject to more specific objections I find that
the subject of his opinions are properly the subject of expert evidence and can
assist the Court on matters beyond the Court’s own knowledge which are relevant
to the issues in the case.

[20]       
The Hospital Defendants say that Dr. Semrau
may be qualified as a psychiatrist, but his opinions stray beyond his expertise
into standards of care for nursing and design criteria for emergency
psychiatric areas of hospitals.

[21]       
I will allow the Hospital Defendants the
opportunity to challenge Dr. Semrau’s qualifications to give the opinions
he does in cross-examination. However, there may be cases where an expert’s
report so clearly strays from his area of expertise that it is possible to rule
on it in advance on the issue of whether he is qualified to give the opinion
stated in the report. Dr. Semrau’s report is not one of those cases.

[22]       
On paper Dr. Semrau’s curriculum vitae
and summary of his experience leads me to conclude that he has sufficient
expertise and experience related to the opinions he gives. He obtained his
medical degree in 1980 and qualified as a psychiatrist in 1984 and has been
practising as a psychiatrist ever since. He was a former clinical assistant
professor in the department of psychiatry at UBC. He has worked as a staff
psychiatrist at a number of in-patient psychiatric facilities, including six in
BC, dealing with psychiatric patients experiencing difficulties similar to
those experienced by the plaintiff during his admission to the hospital. He has
assessed and treated hundreds of patients with clinical characteristics
generally similar to that presented by the plaintiff under similar hospital in-patient
circumstances. In one hospital he was also involved in the design of a suite of
seclusion rooms during renovations to that hospital in the mid-1990s. All of
this would appear to be considerable experience and expertise in understanding
the qualities or behaviours of potentially suicidal in-patients and the
standards of the physical facilities and the staff monitoring for suicidal
patients admitted to hospitals.

[23]       
As for the contents of the opinion report, the Hospital
Defendants argue that Dr. Semrau’s report is not objective and “smacks of
advocacy” and offers conclusions which are the Court’s purview.

[24]       
The plaintiff attempted to address some of these
criticisms. With Dr. Semrau’s agreement, plaintiff’s counsel offered a
version of his report with a small number of redactions.

[25]       
The redacted report is not the same as the
filing of a supplementary report. It was unclear, but it seemed that the Hospital
Defendants were objecting to the method of using the redacted report rather
than requiring the expert to file a supplemental report in accordance with R.
11-6(5). The latter subrule requires an expert to file a supplemental report
when the expert’s opinion changes in a material way.

[26]       
Counsel for the plaintiff advises the Court that
Dr. Semrau is not of the view that the redactions change his opinion.

[27]       
Further, counsel for the Hospital Defendants has
required Dr. Semrau to be present for cross-examination. This means that
he will have to be called as a witness if his report is to be admitted.

[28]       
It seems to me to be practical, efficient and in
accordance with the object of the Rules, that: if the redactions are
relatively small in number and fix a perceived problem; the opposite parties
and the court are advised that the expert adopts a redacted report; and the
expert does so in direct evidence, this will suffice and the redacted report
can stand as the expert’s opinion. In such a situation it makes no sense to
require the party who is calling the expert as a witness to incur the
additional expense of requiring the witness to author a supplemental report.

[29]       
The redactions here were minimal and do not
detract from reading the report or change in a material way the opinions stated
in it, and in my view it was not necessary that Dr. Semrau author a
supplemental report.

[30]       
Counsel for the Hospital Defendants seems to
press for the conclusion that the material that was redacted shows that Dr. Semrau
is not an objective witness and he has strayed into being an advocate for the
plaintiff, and also at one point into offering legal conclusions.

[31]       
As noted in Keefer Laundry at para. 15:

There is a
difference between an expert who advocates for a party and one who
advocates for his or her opinion. By that I mean that an expert opinion
should be confined to the expert’s field of expertise and to the question
within that field that is at issue. It should be the result of careful and
objective consideration of all relevant facts and scientific principles and not
based on extraneous consideration. [Emphasis in original.]

[32]       
I will set out the two passages from Dr. Semrau’s
report that were redacted. First, at page 3 at the fourth paragraph down from
the heading:

Given that he was certified under the Mental Health Act, he
had been deprived of all legal liberty and responsibility for his own behavior.
He was deemed to require the control, care and supervision of SPH [St. Paul’s
Hospital].

Given that Mr. Paur was
specifically believed to be suicidal, it would therefore have been necessary
for SPH to control and manage his environment and circumstances in a fashion
which would have effectively prevented any serious self-harm behavior.

[33]       
And the second redaction is at page 4, the last
paragraph above the heading on that page:

Given all of the
above, SPH continued to have absolute and complete responsibility for the
safety and welfare of Mr. Paur, very specifically with respect to
preventing any possible attempt at suicide by any reasonably foreseeable means.

[34]       
I agree that the above passages erred by using
language that suggests conclusions that come too close to the conclusions that
are for this Court to make, and also by making apparent reference to legal
concepts. The passages were properly redacted.

[35]       
I disagree that these comments undermine the
remainder of the expert report and show that the expert has lost his
independence and has become an advocate for the plaintiff. It cannot be a
surprise that a psychiatrist with extensive experience in dealing with suicidal
in-patients would have his own understanding of the legal implications of
certifying someone under the Mental Health Act and of the obligations
involved in caring for such a person. I do not consider the fact that Dr. Semrau
slipped into setting out his understanding of these obligations and
implications to undermine the rest of the opinions in his report.

[36]       
The expert opinion does not read as though Dr. Semrau
is an advocate for the plaintiff or that he has lost his objectivity. He does
not appear to distort information or deal unprofessionally with any opposing
opinion, a problem that can sometimes happen when an expert becomes too closely
aligned with a party. He does not appear to buttress his views with extraneous
considerations. While he attempts to provide support for the opinions he states,
this is done so on the basis of being within his field of expertise as an
explanation as to why he holds the opinions he does. It is not improper
advocacy for a party. Of course cross-examination may attempt to show a lack of
objectivity, but I do not see it on the face of the content of the report.

[37]       
As another criticism of Dr. Semrau’s
opinion the Hospital Defendants appear to argue is that there are too few
factual assumptions set out in his report to support the doctor’s opinion, that
there must be more that he has not said. (This is opposite to the submission
made in respect of Dr. Wood’s report that he sets out too many factual
assumptions.)

[38]       
There is nothing in the content of the report
which allows me to conclude that Dr. Semrau has failed to set out the
factual assumptions on which his report is based.

[39]       
The Hospital Defendants also criticize Dr. Semrau’s
factual assumption at page 2 that the plaintiff was arrested under “circumstances
clearly indicating acute suicidal intent.” The Hospital Defendants say this is
akin to making a judicial finding. I note this is listed as an assumed
fact. It is not stated as a conclusion. I do not find it to usurp the function
of the Court.

[40]       
The Hospital Defendants also argue that Dr. Semrau
does not indicate the documents he relies on other than to attach references to
clinical literature. I find nothing wrong with Dr. Semrau’s approach of
referencing the clinical literature and see no gap in the listing of other
documents. Dr. Semrau’s approach provides a foundation for his opinion as
to what are the applicable standards for the care of suicidal patients in an
in-patient setting. He sets out his summary of the literature, but by providing
the back-up references, including an annotation of those references, his
approach is most fair as it gives the Hospital Defendants the opportunity to
read the literature that he relies upon and to prepare for his
cross-examination.

[41]       
The rest of the Hospital Defendants’ submissions
regarding Dr. Semrau’s expert report seem to me to largely amount to
argument as to why his opinions should not ultimately be accepted by the Court.
That can await final argument at the end of trial.

[42]       
In conclusion, I did not find any evidentiary or
procedural flaws in Dr. Semrau’s report that would lead me to make a
preliminary conclusion on the basis of the report itself that it is
inadmissible. As mentioned, this is subject to further challenges to Dr. Semrau’s
qualifications when he is called as a witness.

2.   
Dr. Wood

[43]       
Dr. Wood is an anesthesiologist, an
intensive care medicine specialist. He provides an opinion as to the timing and
mechanism of the plaintiff’s injuries. More specifically, he gives opinions as
to what hanging from a ligature tied around the neck does to the arteries that
deliver oxygen to the brain, how long it is before brain cells start to die
after blood flow and oxygen ceases, and how long it is before most people will
not regain consciousness. Dr. Wood links these timing issues to the
plaintiff’s injuries and offers the opinion that the plaintiff had been hanging
for five to ten minutes before he was resuscitated.

[44]       
These are matters outside the Court’s knowledge.
These opinions would be of assistance to the Court and are relevant to the
issues in the case.

[45]       
The Hospital Defendants question how it is that Dr. Wood
would have expertise in how hanging works on a human body. Given his medical
qualifications it is not difficult for me to presume on a prima facie
basis that he would have this expertise. The Hospital Defendants have liberty,
of course, to challenge his qualifications on cross-examination.

[46]       
Dr. Wood sets out six factual assumptions. The
Hospital Defendants submit that the first four factual assumptions do not seem
to relate to the doctor’s opinions. The Hospital Defendants argue that they
should not have to guess how it is that these facts are relied upon by the
doctor in coming to his opinions.

[47]       
The first four factual assumptions just set out
the very brief background history of the plaintiff that brought him to the
hospital and into the locked bathroom. They precede the hanging. It should be
obvious to anyone reading the report that the doctor set out these background
facts for context.

[48]       
The Hospital Defendants may well be correct that
since these facts precede the hanging, they are not relied upon in respect of
opinions regarding the mechanism and timing of the plaintiff’s injuries from
hanging. This point should be so apparent to the Hospital Defendants that
one wonders why the objection is being advanced. The facts set out by this
expert are already quite tailored.

[49]       
I do not find that Dr. Wood’s report is
flawed because he set out four factual assumptions that provide background
context and apparently did not need to do so because he does not need to rely
on those facts for purposes of his opinion.

[50]       
The Hospital Defendants also take issue with the
sixth factual assumption set out by Dr. Wood in his report, and
specifically his language that the plaintiff has “been left with significant
neurological and psychological deficits.” This factual assumption seems to
relate to the doctor’s opinion that some brain damage was caused by the hanging.
Contrary to the submissions of the Hospital Defendants, I do not find that it
is a mystery as to what this factual assumption relates to: it relates to the
logical link that he must have been hanging long enough to have caused this
damage. If the criticism is that the degree of deficits should be irrelevant to
the opinion, i.e., whether the deficits were significant or not, this challenge
can be made in cross-examination.

[51]       
The Hospital Defendants further take issue with
that part of Dr. Wood’s report setting out the documents on which he
relied in forming his opinions. Dr. Wood set out ten listed items, some of
which apparently are multiple pages such as the hospital chart. Some of the
documents precede the hospital stay, such as the ambulance report, and some
post-date the hospital stay, such as medical reports dealing with the plaintiff’s
ongoing medical condition.

[52]       
The Hospital Defendants submit that they do not
know from the content of his report how these documents are relevant to his
opinions; if they are, which part of the documents are relevant and how?

[53]       
From the content of Dr. Wood’s report it
may well be that it would have been more precise for him to write that he
reviewed the documents before forming his opinion and that they provided him
with some confidence regarding the factual assumptions which he made. I note
that most opposing parties wish to know which documents an expert has reviewed.

[54]       
What is meant by the requirement in the Rules
for an expert to include a description of the factual assumptions “on which the
opinion is based” and a list of every document the expert “relied on” in
forming the opinion? An expert is likely to wish to err on the side of more
disclosure rather than less so as to avoid being challenged on the basis of
non-disclosure. Further, an expert may review documents and assumed facts that
might not be directly foundational for the opinions given, but did so because
they gave the expert comfort that other facts do not exist that might be
inconsistent with the opinions. It may be a matter of semantics, but one could
argue that the expert in such a case has relied on these other assumptions and
documents because they are not inconsistent with the opinions given.

[55]       
It appears to me that the criticisms regarding
the factual assumptions and documents listed in Dr. Wood’s report are
superficial and mere technicalities at best. If he has provided too many facts
and documents the quantity is not so overwhelming so as to make analysis of his
opinion difficult.

[56]       
I have concluded that allowing Dr. Wood to
provide evidence through his expert opinion is in the interests of justice even
if there are deficiencies in the way he has listed documents and his
factual assumptions, and that doing so will not prejudice the defendants
through any lack of notice.

[57]       
As to the substance of his opinion, Dr. Wood’s
opinion is very limited in scope. It is only two and a half pages long.

[58]       
The Hospital Defendants complain that they do
not know the reason why Dr. Wood has reached the conclusions that he has
reached.

[59]       
Rule 11-6(1)(f)(ii) does require the expert to
describe any research conducted by the expert that led to the opinion. Since Dr. Wood
did not list any research, the Hospital Defendants should be able to conclude
from his report that he is relying on his experience and expertise as a medical
doctor with the specialties that he has.

[60]       
The Hospital Defendants seem to suggest that Dr. Wood
should have provided a longer explanation for his opinion. The submissions seem
to be suggesting that the expert should anticipate every question in cross-examination
and provide an explanation in advance. The Rules do not require
this.

[61]       
I have concluded that Dr. Wood’s opinion is
admissible, subject, of course, to any challenges to his qualifications.

3.   
Mr. Charles Kierulf

[62]       
Mr. Kierulf is an architect. He provides an
opinion as to whether the design layout and the construction of the area within
which the plaintiff was held at the time of his suicide attempt met the
standards for a locked area within a BC hospital.

[63]       
I find that the subject of his opinions are
properly the subject of expert evidence and can assist the Court in matters
beyond the Court’s own knowledge which are relevant to the issues in the case.

[64]       
The Hospital Defendants challenge Mr. Kierulf’s
qualifications. The submissions suggest that he has only had one experience
relevant to these design issues. I note that Mr. Kierulf’s curriculum
vitae and report suggest broader experience than that attributed to him by
counsel for the Hospital Defendants.

[65]       
Counsel for the Hospital Defendants is free to
challenge Mr. Kierulf’s qualifications when he is called as a witness. I
find no basis on the face of his report to conclude his opinions are
beyond his stated experience and expertise.

[66]       
As for the form and substance of his opinion, Mr. Kierulf
sets out his opinion at the top of page 2 of his report and then sets out his
reasons for his opinion. This format is easy to understand and is not
confusing.

[67]       
The Hospital Defendants submit that the first
reason the architect gives for his opinion is outside his expertise, namely:

1. A patient
certified and admitted as being suicidal is, by definition, considered to be at
risk for self harm. The environment that a patient so classified is kept
within must reduce as much as possible all opportunities for inflicting self harm.

[68]       
I do not find the criticism to be valid. Clearly
Mr. Kierulf is not giving a medical opinion. Focusing on this one reason
alone would be out of context of the entire report. Mr. Kierulf’s entire
report is merely stating no more than a hospital space needs to be designed
understanding the needs of that space, which in the case of a suicidal patient
means understanding that it should be designed to take into account the patient’s
risk for self-harm.

[69]       
I would think it well within an architect’s
field of expertise to comment on what it is that an architect needs to know
about the use of a space in order to properly design the space.

[70]       
The Hospital Defendants further complain that Mr. Kierulf
says in his report that there are standards that apply, but does not tell the
reader what those standards are. However, I note that at the bottom of page 3 of
his report he sets out a list of architectural characteristics and standards
and follows this at page 4 with a list of references for those standards. I do
not find this complaint to be meritorious.

[71]       
The plaintiff has redacted and changed a few
words of Mr. Kierulf’s report at para. 5 at the top of page 3
following the receipt of objections from counsel for the Hospital Defendants. The
words “I conclude” are redacted and new words are substituted, namely “in my
opinion.” Other small word changes are to similar effect, designed to not
offend the rule against usurping the court’s role by offering conclusions
instead of opinions.

[72]       
Following the same process as with Dr. Semrau’s
report, plaintiff’s counsel advises that Mr. Kierulf has reviewed and
agrees with these changes and that they do not change his opinions.

[73]       
I find that these changes are appropriate, as is
the process for submitting them by way of a redacted and edited report for the
same reasons as I reached a similar conclusion with respect to Dr. Semrau’s
redacted report.

[74]       
The Hospital Defendants also draw the Court’s
attention to the fact that Mr. Kierulf’s report went through two drafts
with some changes in language prior to the final report. Counsel for the Hospital
Defendants argue that the changes he made to these drafts show that he is
really just advancing argument for plaintiff’s counsel and is not offering his
own opinions. I do not reach that conclusion simply by comparing the draft
opinions to his final and signed opinion. It is open to counsel for the Hospital
Defendants to seek to make what he can out of the changes during cross-examination
of this witness, but I did not find that the final opinion is unsupported by
the analysis and content of the report. I do not find that Mr. Kierulf’s
opinion has lost objectivity and indicates advocacy for the plaintiff.

[75]       
I conclude that the report is admissible.

General Observations

[76]       
By way of general observation in respect of all
these reports, I also note that R. 11-7(6)(b) provides that the court may allow
an expert to provide evidence on terms and conditions, even though one or more
of the requirements for expert opinion evidence have not been complied with, if
the non-compliance is unlikely to cause prejudice by reason of the
inability to prepare for cross-examination or depriving the opposite party of a
reasonable opportunity to tender evidence in response.

[77]       
Rule 11-7(6)(c) also allows for this when the
interests of justice require it.

[78]       
These correcting provisions of the Rules
illustrate the goals of the formalities in the Rules regarding expert
opinions, and also make it clear that technicalities should not defeat the
interests of justice.

[79]       
In applying the rules relating to expert
opinions to the opinions themselves, some judgment is required so that the
exercise does not defeat the overall purpose of the Rules as set out in
R. 1-3 to secure the just, speedy and inexpensive determination of every
proceeding on its merits, including in conducting the proceeding in ways that
are proportionate to the amount involved, the importance of the issues in
dispute, and the complexity of the proceeding.

[80]       
The exercise of reviewing expert reports for
their admissibility at trial ought not to be so technical that it will defeat
the ability of parties to retain experts at first instance, make it cost-prohibitive,
or unnecessarily bog down the trial of the merits of the case and thereby
also undermine the ability for the court to receive the expert assistance that
is needed on technical issues.

[81]       
I am satisfied here that the opposing parties
have been given sufficient notice of the three experts’ opinions currently at
issue in accordance with the purpose of the Rules so as to enable them
to prepare for cross-examination, and so as to be able to instruct any
responsive experts.

[82]       
If there are technical deficiencies in the
formalities in relation to the three expert reports, they are of a minor nature
and not prejudicial.

[83]       
These reports will be of assistance to the Court
on scientific and technical matters beyond the Court’s own knowledge, and are relevant
to important issues in the case.

[84]       
For these reasons I would allow them to be
admitted. This is, of course, subject to the terms that Dr. Semrau’s report
and Mr. Kierulf’s report will be admitted in their revised forms, and subject
to any further challenges to the qualifications of these witnesses. As noted,
it remains open to the Hospital Defendants to seek to show through
cross-examination that these witnesses are not qualified to give all or some
of the opinions set out in their reports.

[85]       
That concludes my ruling on these three expert
reports.

“The Honourable
Madam Justice S. Griffin”