IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20131210

Docket: S080395

Registry:
Vancouver

Between:

Theodore Laktin

Plaintiff

And

City
of Vancouver, Vancouver Police Department, Constable Coulthard, Sergeant Clee,
Constable Dujmovic and Jane Doe

Defendants

Before:
The Honourable Mr. Justice Pearlman

Oral Ruling re Evidence of Dr. Verna Amell

[1]            
THE COURT:  The plaintiff objects to the
defence calling Dr. Verna Amell, the psychologist who was involved in the
treatment of the plaintiff while he was attending the G.F. Strong
Rehabilitation Facility in April and May of 2006. 

[2]            
The defence seeks to elicit evidence from
Dr. Amell about statements made to her by Mr. Laktin.  The defence
does not intend to elicit opinion evidence from Dr. Amell with respect to
her treatment of Mr. Laktin or his condition. 

[3]            
The plaintiff objects to the admissibility of
this evidence on a number of grounds.  The first objection raised was that the
defence failed to provide adequate notice of its intention to adduce this
evidence.  Dr. Amell was not listed as a witness in the defendants’ Trial Brief
list of witnesses filed on October 10, 2013, prior to the October 17, 2013 Trial
Management Conference.  However, the defence did provide notice on November 13
of their intention to call Dr. Amell when counsel for the defendants
delivered, by e‑mail, a revised list of the defence witnesses.

[4]            
I am satisfied that the defendants have provided
adequate notification of their intention to call Dr. Amell as a witness.

[5]            
The second objection was relevance.  Counsel for
the plaintiff submits that evidence from Dr. Amell about statements made
to her by Mr. Laktin concerning such matters as whether or not he was a
weekend user of cocaine when he lived in Castlegar have no relevance to the
matters in issue in this case, or to any assessment of his state of mind at the
time of the shooting incident on January 21, 2006.  The defence submission is
that this evidence goes to credibility and that during the course of the
defence cross‑examination of Mr. Laktin various propositions were
put to him about information he communicated to Dr. Amell.  The defence
says, and the record indicates, that Mr. Laktin gave evidence that he did
not recall making the statements attributed to him. 

[6]            
The credibility of all of the participants in
the shooting incident is a critical matter in this case, and I find that the
evidence which the defence seeks to adduce is relevant in the sense that it
does go to credibility. 

[7]            
The plaintiff also takes the position that
defence counsel failed to sufficiently identify the circumstances in which the
prior statements were made by Mr. Laktin and therefore failed to comply
with the requirements of s. 13 or s. 14 of the Evidence Act, R.S.B.C.
1996, c.124.  In my view, it is probably s. 14 that applies in the
circumstances, and so the issue is whether before the defence gives proof of
those statements it has sufficiently drawn to Mr. Laktin’s attention the
circumstances in which the prior statements were said to have been made.

[8]            
During her cross‑examination of
Mr. Laktin, Ms. Liang had a number of exchanges where she put to the
plaintiff statements he was said to have made to Dr. Amell.  At p. 59 of
the transcript from, I believe, November 28, 2013, Ms. Liang asked the
following questions and received the following answers from Mr. Laktin:

Q       Now, Mr. Laktin, as part of your treatment at G.F.
Strong after the shooting you met with psychologist Dr. Verna Amell;
correct? 

A        Yes, ma’am.

Q       And you met with Dr. Verna Amell in April and May of 2006;
correct? 

A        I don’t remember the months, but I did meet with
Dr. Verna Amell, yes.

Q       You met with Dr. Verna Amell several months after the
shooting occurred; correct? 

A        Yes.

Q       And when you met with Dr. Verna Amell you discussed
with Dr. Verna Amell your emotional state before the shooting and your
marital relationship with your wife; is that right? 

A        I do not remember the contents of any of the conversation I
had with Dr. Verna Amell.

Q       Do you remember the subject matter of the conversation you
had with Dr. Verna Amell? 

A        I
again had lots of conversations with many professionals.  I don’t recall,
ma’am. 

And then later:

Q       Do you recall telling Dr. Verna Amell that when you
moved into your place, your current place in Delta, that you told your wife,
Kim, that this was a fresh start for two of you?  Do you recall telling that to
Dr. Verna Amell? 

A        I don’t recall any of the contents of the conversations
that I had with Dr. Verna Amell.

Q       Do you recall telling Dr. Verna Amell in May of 2006 or
April of 2006 that you couldn’t take it if your wife, Kim, started in again? 
Do you recall that? 

A        Again,
I will repeat myself over and over and over and over again.  I do not recall
any of the conversations I had with Dr. Verna Amell. 

[9]            
Ms. Liang did establish that
Mr. Laktin had been treated by Dr. Amell and that he had dealings with
Dr. Amell on various occasions in April and May of 2006.  She also
established that these conversations took place in the course of
Dr. Amell’s treatment of Mr. Laktin at the G.F. Strong
facility. 

[10]        
In light of Mr. Laktin’s professed lack of
recollection of the substance of the conversations, in my view the defence
adequately and sufficiently have identified the circumstances in which the
statements were said to have been made.  Accordingly, I would not accede to the
objection under ss. 13 and 14 of the Evidence Act. 

[11]        
The last ground for objection raised is that
communications between a patient and a psychologist are privileged and that the
interest in maintaining the confidentiality of those communications and of the
patient/psychologist relationship outweighs any probative value that this
evidence may have. 

[12]        
Here, the complete clinical records of
Dr. Amell have been disclosed in the course of this litigation.  As I
understand the law, there are certainly circumstances where confidentiality
does attach to communications between psychiatrist or a psychologist and his or
her patient.  There are a number of authorities in this province that deal with
the question of whether that confidentiality attaches concerning information that
may be relevant to claims made in litigation.

[13]        
In Swirski v. Hachey (1995), 16
B.C.L.R. (3d) 281, a decision of Mr. Justice Wilkinson
that is frequently cited, the following principles were stated at para. 42:

1.       There is no doctor‑patient confidentiality attaching
to the plaintiff’s treating doctors concerning information relevant to the
claims made herein for purposes of this action.

2.       Defendants’ counsel in this case are at liberty to discuss
such matters with the plaintiff’s said physicians in the absence of the
plaintiff or her counsel.

3.       In this Province, the commencement of an action for damages
for injury is a waiver of doctor‑patient confidentiality for medical
matters relevant to and bearing upon matters raised in the action.

4.       In this Province such waiver also constitutes as a matter
of law an implied authorization to the physicians for the release of such
information for purposes of the litigation.

5.       Absent privilege, the only basis for imposing any
restriction on such discussion would be the risk of inadvertent release of
irrelevant (and thus still confidential) information. 

Those principles were recently applied in Williams‑Quitzau
v. Chow, a decision of Master Shaw, indexed as 2010 BCSC 2024. 

[14]        
In my view, there is no principle of
confidentiality which would exclude the admission into evidence of
Dr. Amell’s record of statements made to her by Mr. Laktin that are
relevant to an assessment of his credibility.  If it is necessary for me to
engage in an exercise of weighing the interest in maintaining confidentiality
of psychologist/patient communications in this case against the probative value
of the evidence that is sought to be adduced, I would do so in this manner:  this
is not a case where the defence is seeking to elicit opinion evidence from the
treating psychologist relating to the diagnosis or treatment of the patient or
evidence relating to the nature of any emotional or psychiatric disorder of the
patient.  The defence seeks to elicit the evidence of statements made to the
doctor solely for the purpose of assessing the credibility of Mr. Laktin. 

[15]        
In my view, those statements have some probative
value on the issue of credibility and they do not involve the disclosure of
sensitive or invasive, private information of the kind which might lead a court
to determine that it would be invasive of the patient’s privacy to reveal such
information.

[16]        
Having said that and recognizing the danger that
is always present when clinical records are provided to members of the jury
that they may be confused or distracted by information contained in those
clinical records or may misuse the clinical records, I am going to direct that
the defendants redact the extracts from Dr. Amell’s clinical records to be
put to her and provided to the jury so that they contain only those records of
the statements made by Mr. Laktin which the defendants seek to elicit. 

[17]        
Without restricting the direction I have just
given, at page 013 the statement under the heading "Impressions" the
first line "in an abusive relationship" should be redacted.  That, in
my view, may very well be a statement of opinion rather than a record of
anything said by Mr. Laktin. 

[18]        
The plaintiff’s objection to the admissibility of
Dr. Amell’s evidence is dismissed.  However, before the clinical records
are put to Dr. Amell they must be redacted to conform with my directions.

“PEARLMAN J.”