IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150421

Docket: M70273

Registry:
Kelowna

Between:

Eija-Riitta
Pitcher

Plaintiff

And

Joseph Brown

Defendant

Before:
The Honourable Mr. Justice Betton

Oral Ruling on Voir Dire

[1]           
THE COURT: This is a decision on a voir dire regarding
the admissibility of expert reports in the context of a motor vehicle collision
injury claim. The reports are authored by a Dr. Bellis, an audiologist. I
have already informed the parties of my conclusions as that was needed early on
during the course of the trial to assist the parties in presentation of
evidence and scheduling of witnesses. It was agreed, due to the pressures of
time, that these reasons would be delivered at a time convenient during the
course of the trial and this, as it appears, is that time.

[2]           
Dr. Bellis opines that the plaintiff has a condition described as Central
Auditory Processing Disorder or “CAPD”. The defendant argues that the condition
itself and the tests and procedures for diagnosis of it can properly be
categorized as “novel science”, as that phrase has been used in the legal
context. In addition, the defence argues that the report and procedures
regarding retention of test results and notes failed to comply with the Supreme
Court Civil Rules.

Background

[3]           
The claim arises out of a motor vehicle collision that occurred in 2004.
For reasons which are not relevant in this voir dire, the trial was
scheduled to proceed before a jury commencing April 13, 2015. Events occurred
during the early stages of the trial that resulted in the jury being discharged
and the matter is now proceeding as a judge-alone trial.

[4]           
Dr. Bellis prepared three reports: her initial evaluation on
September 21, 2010, and two addendums dated November 10, 2010. In her principal
report under the heading, "Impressions", Dr. Bellis says:

Both behavioural and electrophysiologic
central auditory diagnostic findings support a diagnosis of (C)APD primarily
affecting the auditory processes of temporal pattering and binaural
integration/separation. The overall pattern of findings is suggestive of
right-hemisphere and possible interhemispheric site of dysfunction.

[5]           
The addendum reports respond to specific areas of inquiry from counsel,
but do not alter these conclusions or impressions. In those reports, Dr. Bellis
refers to her sources of information in formulating her opinions as follows:

…This report will provide my
opinion with respect to each of these issues and a description of the factual
assumptions, (i.e., test results) upon which my opinion is based. I conducted
no additional research that led me to form my opinions; however, references for
several of the factual statements contained herein are provided throughout the
report. I was provided with Mrs. Pitcher’s records by the LeBlanc law
corporation. These documents were used by me for a review only and – in the case
of previous and audiologic and otologic evaluations – for consideration of inter-evaluator
consistency of test results and intervention recommendations. I relied solely
on the test results obtained by me on September 21, 2010 and on my own
professional judgment and expertise in rendering my opinions on each of the
issues for which my opinion was sought.

[6]           
Dr. Bellis does not specifically articulate the records that were
provided by the LeBlanc Law Corporation, former counsel for Ms. Pitcher. In
this voir dire, a copy of the letter from the LeBlanc Law Corporation to
Dr. Bellis attaching a list of records being provided was entered as an
exhibit. Dr. Bellis testified in the voir dire and indicated that
without the letter from the LeBlanc Law Corporation, she could not recall all
of the records that she had been provided with and described them simply as a
"very large stack of things".

[7]           
The reports of Dr. Bellis were served by the plaintiff’s then
counsel, Mr. LeBlanc, by letters dated November 15 and December 1, 2010. In
response and by letter dated November 17, 2010, defence counsel requested the
following from Dr. Bellis:

(i)         any
written statement of facts on which the expert’s opinion is based;

(ii)        a
record of any independent observations made by the expert in relation to the
report;

(iii)       any
data compiled by the expert in relation to the report; and

(iv)       the results of any test
conducted by or for the expert, or of any inspection conducted by the expert,
if the expert has relied on that test or inspection in forming his or her
opinion.

[8]           
In his response letter of March 16, 2011, Mr. LeBlanc provided
defence counsel with a scanned copy of Dr. Bellis’ chart notes and a copy
of email communications between the LeBlanc Law Corporation and Dr. Bellis
wherein Dr. Bellis indicated that she had shredded any handwritten notes. In
her testimony on the voir dire, Dr. Bellis indicated she had, in
fact, destroyed any notes of her history taken from the plaintiff immediately
after preparation of the report. Dr. Bellis teaches and practices in South
Dakota and testified that she did so in accordance with her professional
obligations in that jurisdiction.

[9]           
In her testimony, she indicated that she conducted six tests where she
recorded results contemporaneously. She could not recall if those were done on
paper or on a computer, but, given the nature of the tests, indicated they were
simply tick marks to record whether a response was correct or incorrect. Only a
seventh test involved some subjective scoring which was also recorded contemporaneously.
She did not retain any of those documents if indeed they were recorded on
paper.

[10]       
The defence obtained its own report from Dr. Cacace who prepared a
report dated March 30, 2011. He did not conduct an examination of the
plaintiff, but rather reviewed various documents and reports including those of
Dr. Bellis in his report. He described his task as follows:

At your request, I have reviewed
critically the accumulated evidence to help determine whether the plaintiff … has
a central auditory processing disorder secondary to a motor vehicle accident. Herein,
I focus on three evaluations investigating auditory and vestibular functions
and use other related information from medical [neuro-otological, neurological,
psychiatric, radiological (computerized tomography, CT; magnetic resonance
imaging, MRI)], and allied health (psychological) exams to add crucial details
to my assessment.

[11]       
In addition to the viva voce testimony of Dr. Bellis on the voir
dire, each party filed an affidavit from a staff member of the parties’
counsel’s law firm attaching documents. The majority of those documents are
literature on the subject of CAPD and most of which were authored in whole or
in part by either Dr. Bellis or Dr. Cacace.

Issues and Positions of the Parties

[12]       
First is the admissibility of novel techniques or theories. The
defendant argues that there is ongoing debate in the audiological community
about the appropriate definition of CAPD and appropriate protocols for testing
and diagnosis of CAPD. The defence points to several articles in scientific
literature including articles of the two experts involved in this case, Dr. Cacace
and Dr. Bellis, that highlight the disagreements that continue to exist in
these areas. Further, he refers to working papers that have been drafted by
both United States authorities (the American Speech-Language-Hearing
Association (ASHA) and the American Academy of Audiology (AAA)) and Canadian
organizations ((specifically, the Canadian Interorganizational Steering Group
for Speech-Language Pathology and Audiology (CISG)). Those groups have
endeavoured to develop guidelines in their respective countries in respect of
CAPD, also referred to in Canada as simply Auditory Processing Disorder.

[13]       
The defendant says that a fair reading of these various documents
demonstrates that the understanding of CAPD and the ability to screen and test
for it and adequately exclude other potential factors or disorders is such that
the expert opinions at issue here do not meet the threshold admissibility test
established by the Supreme Court of Canada.

[14]       
The plaintiff points to the same articles, studies, and reports and says
that the knowledge and understanding of CAPD has evolved significantly in
recent years and that the organizations in both Canada and the United States, that
provide guidance to practitioners in the area, have reached consensus. While
acknowledging that further understanding is inevitable and improved test
protocols are likely, the plaintiff says this evidence does indeed meet the
threshold for admissibility and the trier of fact should be left to determine
what weight to attach to the opinions of Dr. Bellis.

[15]       
The second issue is inadmissibility based on non-compliance with
Rule 11-6(8) of the Supreme Court Civil Rules and the doctrine of
spoliation. The defence presented its argument regarding the doctrine of
spoliation as a distinct argument. It raised the issue in the context of Dr. Bellis’
destruction of notes of her interview of the plaintiff and the records she kept
regarding the plaintiff’s performance on tests. The defence refers to various
authorities that predate the current Rules. During argument, the defence
acknowledged that it is not seeking any separate remedy nor endeavouring to
commence any claim based on a distinct cause of action for the destruction of
those records. Instead, it refers to those portions of the authorities that
speak of the destruction of documents as a basis for procedural remedies
including the exclusion of expert reports.

[16]       
The defence also acknowledges that, given the remedy it seeks, the Supreme
Court Civil Rules provide a framework that makes available the same
remedies.

[17]       
Among the effects of the actions of Dr. Bellis, the defence points
to is the impaired ability of Dr. Cacace to scrutinize and critique the
opinions of Dr. Bellis by the absence of the information. In addition,
there is their own ability to prepare for cross-examination.

[18]       
Further, the defence notes that Dr. Bellis did not list all of the
information available to her and considered by her in the preparation of her
reports, as required by the Rules.

[19]       
The plaintiff acknowledges that some of the test results are not
available, although they are referred to in a summary way in a chart attached
to Dr. Bellis’ reports completed directly from those notes. They stress
that the other test results are, in fact, available and those relate to all of
the more complex results. The plaintiff says that those test scores that are
not available are for very simple tests where all that the records that were
destroyed contained was tick marks tabulating the number of correct or
incorrect responses of the plaintiff to those particular tests. It says that
having consideration to the evidence of Dr. Bellis explaining the nature
of the tests and her procedures, the defence is not, in fact, in any way
prejudiced.

[20]       
In addition, during the course of the submissions in this application
and on the court’s request, the instruction letter from former counsel of Ms. Pitcher
to Dr. Bellis listing all of the reports and records provided to Dr. Bellis
for consideration was made available.

[21]       
The plaintiff argues that to the extent there are any failures on the
part of Dr. Bellis or in the form of her reports to comply with the Rules,
they are of such a nature that alternative courses of action short of exclusion
of the evidence are available.

Analysis

[22]       
I will deal first with the inadmissibility of novel techniques or
theories. The parties are essentially in agreement as to the applicable law. R.
v. Mohan, [1994] S.C.J. No. 36, paragraphs 17 through 19 describes it
as follows:

17 Admission of expert evidence depends on the
application of the following criteria:

(a) relevance;

(b) necessity in assisting the
trier of fact;

(c) the absence of any exclusionary
rule;

(d) a properly qualified expert.

(a) Relevance

18 Relevance is a threshold requirement for the
admission of expert evidence as with all other evidence. Relevance is a matter
to be decided by a judge as question of law. Although prima facie admissible if
so related to a fact in issue that it tends to establish it, that does not end
the inquiry. This merely determines the logical relevance of the evidence.
Other considerations enter into the decision as to admissibility. This further
inquiry may be described as a cost benefit analysis, that is "whether its
value is worth what it costs." See McCormick on Evidence (3rd ed.
1984), at p. 544. Cost in this context is not used in its traditional
economic sense but rather in terms of its impact on the trial process. Evidence
that is otherwise logically relevant may be excluded on this basis, if its
probative value is overborne by its prejudicial effect, if it involves an
inordinate amount of time which is not commensurate with its value or if it is
misleading in the sense that its effect on the trier of fact, particularly a
jury, is out of proportion to its reliability. While frequently considered as
an aspect of legal relevance, the exclusion of logically relevant evidence on
these grounds is more properly regarded as a general exclusionary rule (see Morris
v. The Queen, [1983] 2 S.C.R. 190). Whether it is treated as an aspect of
relevance or an exclusionary rule, the effect is the same. The reliability
versus effect factor has special significance in assessing the admissibility of
expert evidence.

19 There is a danger that expert evidence will
be misused and will distort the fact-finding process. Dressed up in scientific
language which the jury does not easily understand and submitted through a
witness of impressive antecedents, this evidence is apt to be accepted by the
jury as being virtually infallible and as having more weight than it deserves.
As La Forest J. stated in R. v. Béland, [1987] 2 S.C.R. 398, at p. 434,
with respect to the evidence of the results of a polygraph tendered by the
accused, such evidence should not be admitted by reason of "human
fallibility in assessing the proper weight to be given to evidence cloaked
under the mystique of science". The application of this principle can be
seen in cases such as R. v. Melaragni (1992), 73 C.C.C. (3d) 348, in
which Moldaver J. applied a threshold test of reliability to what he described,
at p. 353, as "a new scientific technique or body of scientific
knowledge". Moldaver J. also mentioned two other factors, inter alia,
which should be considered in such circumstances (at p. 353):

(1) Is the evidence likely to
assist the jury in its fact-finding mission, or is it likely to confuse and
confound the jury?

(2) Is the jury likely to be overwhelmed by the "mystic
infallibility" of the evidence, or will the jury be able to keep an open
mind and objectively assess the worth of the evidence?

[23]       
In Lush v. Connell, 2012 BCCA 203, Hinkson J.A., as he then was,
noted at paragraph 39 that:

Once satisfied that the
preconditions to admissibility of the expert’s opinion have been met, the trial
judge then has a gatekeeper function to perform with respect to the
introduction or the rejection of the expert’s evidence;

[24]       
He referenced R. v. J.-L.J., [2000] 2 S.C.R. 600, at paragraph 28:

28 In the course of Mohan
and other judgments, the Court has emphasized that the trial judge should
take seriously the role of "gatekeeper". The admissibility of the
expert evidence should be scrutinized at the time it is proffered, and not
allowed too easy an entry on the basis that all of the frailties could go at
the end of the day to weight rather than admissibility.

[25]       
It is appropriate to set out that paragraph, that is, paragraph 28, as
well as paragraphs 33 and 35 of R. v. J.-L.J.:

33  Mohan
kept the door open to novel science, rejecting the "general
acceptance" test formulated in the United States in Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923), and moving in parallel with its
replacement, the "reliable foundation" test more recently laid down
by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993). While Daubert must be read in light of the specific
text of the Federal Rules of Evidence, which differs from our own
procedures, the U.S. Supreme Court did list a number of factors that could be
helpful in evaluating the soundness of novel science (at pp. 593-94):

(1)        whether
the theory or technique can be and has been tested:

Scientific methodology today is
based on generating hypotheses and testing them to see if they can be
falsified; indeed, this methodology is what distinguishes science from other
fields of human inquiry.

(2)        whether
the theory or technique has been subjected to peer review and publication:

[S]ubmission to the scrutiny of the
scientific community is a component of "good science," in part
because it increases the likelihood that substantive flaws in methodology will
be detected.

(3)        the
known or potential rate of error or the existence of standards; and,

(4)        whether
the theory or technique used has been generally accepted:

A "reliability assessment does
not require, although it does permit, explicit identification of a relevant
scientific [page 616] community and an express determination of a particular
degree of acceptance within that community."

…

Widespread acceptance can be an
important factor in ruling particular evidence admissible, and "a known
technique which has been able to attract only minimal support within the
community," … may properly be viewed with skepticism.

35 In
Mohan, Sopinka J. emphasized that "novel science" is subject
to "special scrutiny", at p. 25:

In summary, therefore, it appears
from the foregoing that expert evidence which advances a novel scientific
theory or technique is subjected to special scrutiny to determine whether it
meets a basic threshold of reliability and whether it is essential in the sense
that the trier of fact will be unable to come to a satisfactory conclusion
without the assistance of the expert.

The penile plethysmograph, as noted by Fish J.A., is
generally recognized by the scientific community and is used by psychiatric
facilities such as the Institut Philippe Pinel de Montréal to monitor the
result of treatment for sexual pathologies. The plethysmograph enables the
medical staff to assess the progress of therapy of known and admitted sexual
deviants. This is inapplicable to the respondent. He denies he is part of such
a group. He is not undergoing therapy. Dr. Beltrami is a pioneer in Canada
in trying to use this therapeutic tool as a forensic tool where the problems
are firstly to determine whether the offence could only be committed by a
perpetrator who possesses distinctive and identifiable psychological traits,
secondly to determine whether a "standard profile" of those traits has
been developed, and thirdly to match the accused against the profile. Dr. Beltrami’s
evidence is therefore subject to "special scrutiny". While the
techniques he employed are not novel, he is using them for a novel purpose. A
level of reliability that is quite useful in therapy because it yields some
information about a course of treatment is not necessarily sufficiently
reliable to be used in a court of law to identify or exclude the accused as a
potential perpetrator of an offence. In fact, penile plethysmography has
received a mixed reception in Quebec courts: Protection de la jeunesse
— 539, [1992] R.J.Q. 1144; R. c. Blondin, [1996] Q.J. No. 3605
(QL) (S.C.); L. Morin and C. Boisclair in "La preuve d’abus sexuel:
allégations, déclarations et l’évaluation d’expert" (1992), 23
R.D.U.S. 27. Efforts to use penile plethysmography in the United States as
proof of disposition have largely been rejected: People v. John W., 185
Cal.App.3d 801 (1986); Gentry v. State, 443 S.E.2d 667 (Ga. Ct. App.
1994); United States v. Powers, 59 F.3d 1460 (4th Cir. 1995); State
v. Spencer, 459 S.E.2d 812 (N.C. App. 1995); J. E. B. Myers et al.,
"Expert Testimony in Child Sexual Abuse Litigation" (1989), 68 Neb.
L. Rev. 1, at pp. 134-35; J. G. Barker and R. J. Howell, "The Plethysmograph:
A Review of Recent Literature" (1992), 20 Bull. Am. Acad. of Psychiatry
& L. 13.

[26]       
As noted, each party presented the evidence, with the exception of the viva
voce testimony of Dr. Bellis, by way of attaching various documents to
affidavits from paralegals or others in their respective offices. Much of that
information is in the form of studies, reports and articles. In the course of
submissions, counsel were asked to make clear what, if any, agreement they had as
to the use to be made of this evidence since no authors of the various articles
except Dr. Bellis had been called to give evidence. After reflecting,
counsel put it this way:

…[W]e weren’t specific about the
wording, but it was generally — the consensus was that we were both agreeable that
the articles referred to in the various — or the two affidavits and the
guideline papers — could be relied upon for this voir dire for the
purpose of acknowledging anything — concerns raised within the community
regarding the status of CAPD theory and testing.

[27]       
It is apparent from both Dr. Bellis’ evidence and a review of her curriculum
vitae and the various literature attached to the affidavits that she has
been heavily involved in the research of CAPD and the testing of those who have
or may have CAPD. Similarly, Dr. Cacace has an impressive CV. Some
of the articles are themselves critiques or comments by one or the other of Dr. Cacace
and Dr. Bellis in collaboration with others about the work or opinions of
the other. Dr. Bellis did testify that not all of the articles are
peer-reviewed works, but rather what might be called "letters to the
editor" in the literature.

[28]       
It is readily apparent from a review of all of the evidence that CAPD
has been a subject of study, analysis, and debate for a considerable number of
years. My impression of the whole of the evidence is captured very well in a
passage from the articles exhibited. The Canadian Interorganizational Steering
Group for Speech, Language, Pathology, and Audiology prepared a document in December
2012 titled, "Canadian Guidelines on Auditory Processing Disorder in
Children and Adults: Assessment and Intervention", and said this:

Auditory processing as an area of research and practice has
its roots in the mid 20th century, and much has been written about assessment
of the central auditory system in the past 60 years. … Since the 1970s,
auditory processing has steadily received attention both clinically and as a
research entity.

Many of the tests still used
clinically today by audiologists were developed in the 1960s and 1970s

It goes on:

However, the fields of neuroscience,
neuroanatomy, neuroimaging and related disciplines have provided a much better
understanding of the auditory system. While there have been immense leaps in
our understanding of how the brain works, in the technology available to help
clients, and in the ways in which audiologists practice today, the audiological
testing battery approach continues to focus on identifying disconnected areas
of difficulty, when current evidence instead suggests that the brain is
characterized by highly complex interactive networks, recently dubbed the
"human connectome"

[29]       
The focus of the ongoing debate is how to specifically test for and
diagnose CAPD from within the human connectome; how to isolate possible CAPD
from other conditions or factors. The discussion of testing in the literature
refers to the concepts of sensitivity, specificity and efficiency. In the
American Audiological Association publication entitled, "Guidelines for
the Diagnosis, Treatment and Management of Children and Adults with Central
Auditory Processing Disorder", referred to above, those concepts are
described as follows:

Sensitivity is a measure of a test’s hit rate
(i.e., true positives) or yield of abnormal results when in fact the
individual tested does have the deficit for which the test probes. Specificity
is a measure of a test’s correct rejection rate (i.e., true negatives)
or yield of normal findings when the individual is normal along the parameters
that are assessed. Specificity is related to the term, false positive, in that
the false positive rate is defined as 1 minus the specificity (e.g., 1 – 80%
specificity = 20% false positive rate). Test efficiency is the
combination of specificity and sensitivity; that is, the overall number of true
positives and true negatives divided by the total number of individuals tested.

(emphasis
in original)

[30]       
One of the Cacace articles written in collaboration with a Dr. McFarland
in 2005 entitled, "The Importance of Modality Specificity in Diagnosing
Central Auditory Processing Disorder", spoke generally of scientific
development and research and noted:

Although the peer review process
is not perfect, it has stood the test of time and remains an important element
in establishing the credibility of any form of scientific inquiry. As part of
scientific inquiry, information evolves through various stages of development:
from the idea stage, to the experimental stage, to the consensus stage, and
ultimately to the knowledge stage. Attainment of the knowledge stage of
development means that the idea has been accepted and validated. Although
reaching the knowledge stage is time-and labor-intensive, obtaining convergence
by multiple independent investigators is worth the effort. Validation therefore
remains an important final hurdle to be surmounted before new constructs can be
introduced into science

[31]       
Those comments and the article by Dr. Cacace, although made in a
different context and using different terminology, reference similar ideas or
concepts to those articulated by the Supreme Court of Canada in R. v.
J.-L.J. at paragraph 33, previously referenced. The question here is whether
the science associated to understanding and diagnosing CAPD has evolved to the
stage that satisfies the Supreme Court of Canada’s articulation of the test, or
would it create the risk that Sopinka J. in Mohan described this way at
page 21, paragraph 19:

Dressed up in scientific language
which the jury does not easily understand and submitted through a witness of
impressive antecedents, this evidence is apt to be accepted by the jury as
being virtually infallible and as having more weight than it deserves.

[32]       
Dr. Cacace’s views on the question might be taken from the same
article referred to above. There, he says:

Although books have been written, committees have been
formed, and consensus conferences have been convened, central auditory
processing disorder … has not reached the knowledge stage of development.
In our view, this area of inquiry has stalled somewhere between the
experimentation and consensus stages of development. This state of affairs is a
dual-edged sword: On the positive side, it offers a unique opportunity for
researchers to study and refine this topic; however, for clinicians, educators,
and students, it is problematic because in many instances the information content
currently found in books offers a dubious representation of how CAPD should be
conceptualized and diagnosed.

(emphasis
in original)

[33]       
On the other hand, Dr. Bellis very clearly articulated in her viva
voce evidence that, in her view, that research and refinement has occurred
and what has been provided to the clinicians and educators is in the form of
the recommendations from the AAA and ASHA. Indeed, she says that the United
States organizations, ASHA and AAA, have now articulated the consensus of the
audiological community as to the definition and testing protocols that are
appropriate. She readily acknowledges that further advances and study will be
made and needs to be made, but that does not detract from the ability to
understand and diagnose the problem through appropriate testing. She says that properly
administered by a clinician who is skilled in the area, the tests are
sufficiently sensitive, specific, and efficient.

[34]       
The literature presented in this voir dire stresses the
importance of selection of appropriate tests, collection of proper and detailed
historical and other information. In its 2005 publication entitled,
"Technical Report: (Central) Auditory Processing Disorders; Working Group
on Auditory Processing Disorders", ASHA said this:

This Working Group concludes that
there is sufficient evidence to support the neurobiological and behavioral
existence of (C)APD as a diagnostic entity. Further, the accumulated evidence
reviewed by this Working Group is reflected in the conceptualization, the
conclusions, and the recommendations contained in this technical report to
guide diagnosis and assessment of the disorder, as well as to guide the
development of more customized, deficit-focused intervention plans.

[35]       
In the same year, it issued a position statement as an "Official
Policy of the American Speech Language Hearing Association" which stated:

It is the position of the
American Speech-Language-Hearing Association (ASHA) that the quality and
quantity of scientific evidence is sufficient to support the existence of
(central) auditory processing disorder [(C)APD] as a diagnostic entity, to
guide diagnosis and assessment of the disorder, and to inform the development
of more customized, deficit-focused treatment and management plans.

[36]       
In a document titled, "Guidelines for the Diagnosis, Treatment, and
Management of Children and Adults with Central Auditory Processing Disorder",
the American Association of Audiology said this, and I believe the proper date
on that document is 2010:

The following clinical practice
guidelines provide evidence-based recommendations for the diagnosis, treatment,
and management of children and adults with (central) auditory processing
disorder ([C])APD). The American Academy of Audiology (AAA) appointed a task
force to develop this document to provide direction to clinicians involved in
this practice area, as well as to provide a resource to the AAA and its
membership for communication with the public. This document was to build on and
expand prior statements and reports on (C)APD issued by other professional
associations (e.g., ASHA … and consensus panels … The present guidelines focus
on four major areas of (C)APD: 1) patient history and selection criteria, 2)
diagnosis, 3) intervention, and 4) professional issues, education, and
training.

[37]       
In Canada, the CISG report from 2012, referred to above, strikes a more
tentative tone in what it said were its hopes for the use of its report when it
said in its concluding comments:

It is hoped that this document
has been able to provide audiologists and speech-language pathologists with
both a review of the research as it currently exists, and a fresh perspective
and framework within which to begin a Canadian discussion amongst audiologists
and speech-language pathologists to continue this work.

Elsewhere in the report, it
noted:

Assessment and management of
auditory processing disorder in children and adults should be considered part
of a standard set of core competencies for all audiologists. However,
audiologists need to be supported through the provision of continuing learning
opportunities by professional organizations and university training programs.

It went on:

Clinicians already established in
APD practices can offer mentorship opportunities as an invaluable way to give
back to their profession, and help transfer clinical skills to their
colleagues.

[38]       
Without more than the evidence of Dr. Bellis, who was very clear in
her views, I conclude that there have been steady gains in the understanding of
CAPD and the test protocols that are sensitive, specific, and efficient. Dr. Bellis
was adamant in her evidence that properly administered testing protocols that
she implemented in relation to the plaintiff were appropriate in respect of
sensitivity, specificity, and efficiency. She was part of the AAA and ASHA when
the papers to which I have referred were published.

[39]       
On the evidence before me, both AAA and ASHA are representative
organizations that provide guidance and resources for the audiological
professionals in the United States of America and are the best evidence of what
is generally accepted by them. That does not mean that there is universal
agreement or that further research and development of the present knowledge and
procedures is not warranted or appropriate.

[40]       
I will put these observations in the context of the comments of the
Supreme Court of Canada noted above, in particular, J.-L.J. at paragraph
33. First, Dr. Bellis indicates that testing with individuals with known
lesions is the methodology used in all similar sciences and it has been
employed in respect of CAPD effectively. That research has tested the theories
and allowed researchers like Dr. Bellis to identify appropriate test
protocols. Further, Dr. Bellis testified that there has been significant
peer review and publication of the research which is the foundation for the
comments of the ASHA and AAA noted above. That is not to say it is without
criticism or that there is universal agreement. It is not necessary that there
be such universal agreement in an area of study for it to be the subject of
admissible expert evidence.

[41]       
The comment in the terms that have been referenced above from the
umbrella organizations in this field both in the United States and Canada,
albeit with cautions, are an indication that the audiological community
endorses the conclusions. I cannot say on the evidence before me that there is
— to refer to the Supreme Court of Canada again in J.-L.J., paragraph
33 — specific known or potential rates of errors in the testing, but the
publications do speak of the existence of standards and recommended procedures.

[42]       
Last, there appears to be, based on the articles from those representative
agencies, general acceptance of the theories or techniques. Again, that does
not mean to say that there are not those who criticize and that there is not
room for improvement.

[43]       
Accordingly, it is my view that the evidence at issue here does meet the
standards articulated by the Supreme Court of Canada for admissible expert
evidence.

[44]       
I turn next to the consideration of the court’s role as a gatekeeper,
particularly in the context of a jury trial, although I now make the
observation that since this voir dire this matter is no longer a jury
trial and some of the concerns raised by the defence and the need to be
cautious about a jury’s potential to be swayed by, as the Supreme Court of
Canada put it, impressive credentials, is no longer applicable. I will say
this, however, that one should not underestimate the collective ability of the
jury to understand relatively sophisticated concepts. Each party here has experts
who will give evidence on the subject that have impressive credentials and will
no doubt be able to articulate for the benefit of the trier of fact the various
considerations that may be taken into account in assessing what weight, if any,
to give to the opinions of Dr. Bellis.

[45]       
It is worthy of note in this regard that Dr. Cacace does not take
the stance in his report that CAPD does not exist or that it cannot be tested
for. The opening paragraph of his report dated March 30, 2011, addressed to
counsel for the defendant, is referred to above. As noted, Dr. Cacace was
not called to give evidence on the voir dire and, while he has published
articles at earlier points in time questioning the state of science as it
relates to CAPD and the ability to diagnose it, his report makes no such
reference and I do not have the benefit of his testimony on this voir dire.

[46]       
Last, I note that each counsel pointed out that they were unable to find
any case in the United States or Canada specifically dealing with the issue
before me. While this is indicative of the fact that no court has specifically
accepted expert evidence on the subject (or at least no case has been reported
or located by counsel), similarly, there have been none where it has been
rejected as novel science and not admissible as the subject matter of expert
opinion evidence.

[47]       
It was my view when I crafted these reasons, and is my view now, that the
jury has been discharged and that I will not be overwhelmed by the evidence. Cross-examination
will be capable of canvassing any alleged or apparent shortcomings and issues
with respect to Dr. Bellis’ opinions allowing the trier of fact to fairly
and effectively determine what weight, if any, to give to her evidence.

[48]       
I turn then to the second issue which is whether the reports are
inadmissible based on non-compliance with the Supreme Court Civil Rules
and the doctrine of spoliation. As noted above, defence counsel essentially, if
not expressly, conceded during argument, in respect of spoliation and possible
procedural consequences as distinct from a separate tort, there is little to be
added to what is now contained in the Supreme Court Civil Rules, 11-6. In
other words, the Rules provide fully for an appropriate remedy and there
is no need to look to spoliation as a separate avenue or source of remedy.

[49]       
Having heard the evidence of Dr. Bellis, I am satisfied that any
destruction of notes or records made during the course of her assessment of the
plaintiff was done honestly and not to frustrate the process. She testified
that it was her professional obligation in the jurisdiction in which she
teaches and practices. There was no evidence that she had been specifically
told to retain those items by counsel who had retained her.

[50]       
Insofar as the test scores which she destroyed, they relate to tests,
with the exception of one, which consisted simply of a tally of correct or
incorrect responses. It is fair to say that absent that record, there is no
ability to check her tabulation of the results. She explained, however, that
for the purposes of her analysis, the significance of the test is whether Ms. Pitcher
scored within a range of two standard deviations of the norm or outside of that
range. Where within the range or how far outside the range is of no consequence
using the test protocols applied by her.

[51]       
In respect of her notes of the history taken from Ms. Pitcher, the
accuracy of that history is still open to be challenged in cross-examination
through the synopsis of it that is contained in the report and the ability to
cross-examine both Ms. Pitcher and Dr. Bellis against known records
in the possession of the parties.

[52]       
Insofar as the doctor’s failure to record all the records that she had
for review, I will note and have noted previously in these reasons Dr. Bellis’
observation of what information she relied upon. Further in the report she says
the patient’s records were provided to the USD (that is University of South Dakota)
Communication Sciences and Disorders Department by the LeBlanc Law Corporation.

[Portions of] these documents
were used by me for review only. … I relied solely on the test results obtained
by me on September 21, 2010 and on my own professional judgment and expertise
in rendering my opinions on each of the issues for which my opinions were
sought.

[53]       
Further, both counsel had the benefit of the comprehensive index of all
of the records that were provided by the plaintiff’s former counsel to Dr. Bellis.
Insofar as the ability of the defence expert, Dr. Cacace, to scrutinize
the conclusions of Dr. Bellis against that information, to a large extent,
I am satisfied, that can be remedied by permitting Dr. Cacace to be in
attendance and in the courtroom virtually or otherwise during the direct and
cross-examination of Dr. Bellis if the defence seeks such an order. If
defence counsel need an opportunity to consult with Dr. Cacace thereafter
and if he seeks to express some opinion beyond that which is in his report of
March 30, 2011, that, in my opinion, should be submitted subject to any further
argument regarding content.

[54]       
In conclusion, I exercise my discretion that exists in Rule 11-7(6) to
permit the reports of Dr. Bellis. I do not in any way wish to diminish the
non-compliance of the Rules or suggest that it should be endorsed in any
way. Rather, in the peculiar circumstances of this case and having
consideration to the limited potential prejudice and the ability to moderate
that through the measures noted above and the nature of the failures, it is
appropriate to allow the reports to be tendered as evidence and to be
considered by the trier of fact.

“D.A.
Betton J.”