



COURT OF APPEAL FOR ONTARIO

CITATION: Parliament v. Conley, 2021 ONCA
    261

DATE: 20210426

DOCKET: C67348

Huscroft, Nordheimer and
    Harvison Young JJ.A.

BETWEEN

Cole Parliament, an incapable by his Litigation Guardian,

Kimberley York, John Parliament, and the said

Kimberley York personally

Plaintiffs
    (Appellants)

and

D.W. Conley and V. Park

Defendants (Respondents)

Gavin
    MacKenzie, Brooke MacKenzie, Hilik Y. Elmaleh and Michael A. Hershkop, for the
    appellants

Darryl
    Cruz, Dorothy Charach and Joseph Ur, for the respondents

Heard: October 20,
    2020 by video conference

On appeal
    from the order of Justice Susan Woodley of the Superior Court of Justice, dated
    August 30, 2019.

Harvison
    Young J.A.:

A.

Overview

[1]

Cole Parliament was diagnosed with severe
    hydrocephalus when he was around four months old. He is now 21 years old and
    has cognitive and physical disabilities. He and his parents, Kimberley York and
    John Parliament, sued the defendants and respondents on appeal, Dr. Conley and
    Dr. Park, for negligence, alleging that they delayed in diagnosing and treating
    Coles hydrocephalus and that this delay caused his brain damage. For the
    purposes of this appeal, the essence of their claim was that Drs. Conley and
    Park had breached the respective and applicable standards of care in failing to
    take appropriate steps to see that Cole was followed up when they had first noted
    the infants large head circumference.

[2]

After a lengthy jury trial during which some 27
    experts testified, the jury found that the standard of care had been met by
    both respondents, and the trial judge accordingly dismissed the action. The
    appellants seek a new trial on the basis that the only expert on standard of
    care for the respondents, Dr. Bruce, gave evidence that went far beyond the
    scope of his expertise, failed to demonstrate impartiality, and usurped the
    jurys proper role in opining on core credibility and factual questions which
    included what the doctors had actually told Coles mother, Ms. York, and
    whether she had followed the advice she was given. The respondents take the
    position that Dr. Bruce was not biased and that his evidence fell within the
    appropriate bounds. Moreover, they argue, the failure of the appellants trial
    counsel to object to this evidence or to the charge on these grounds precludes them
    from raising this on appeal.

[3]

For the reasons that follow, I would allow the
    appeal.

B.

Background

(1)

Medical history and events

[4]

The sequence of events between the time of
    Coles birth in August 1999 until the diagnosis of hydrocephalus and his
    surgery in mid-December 1999 to treat his hydrocephalus is important context to
    the issues on this appeal, and for that reason, I will set them out
    chronologically.

[5]

Cole Parliament was born on August 16, 1999, the
    first child born to his parents Kimberley York and John Parliament. Ms. York
    had been induced due to concerns about Coles small size, and among other
    things it was recorded on the physicians record of newborn infant that Cole
    had needed resuscitation at birth and weighed six pounds, two ounces.

[6]

Dr. Conley was the long-time family doctor of
    Ms. York, and Ms. York took Cole to his regular check ups with Dr. Conley. Between
    his first visit to Dr. Conley at the age of three weeks on September 3, 1999
    and his last visit to Dr. Conley on October 15, 1999, Coles head circumference
    went from the 25th percentile to over the 90th percentile. During the same
    period, his weight went from 3.11 kg, the 3rd percentile, to 4.98 kg, under the
    50th percentile. The following chart summarizes Dr. Conleys notes on these measurements:



Date of Visit

Head Circumference

Height/Length

Weight



September 3,
          1999

37 cm; over
          25th percentile

52 cm; 10th
          percentile

3.11 kg (6.8
          lbs); 3rd percentile



September 21,
          1999

39 cm; 50th
          percentile

54 cm; 3rd
          percentile

3.78 kg (8.3
          lbs); 3rd percentile



October 15,
          1999

42 cm, 41.5
          cm; 97th percentile

57 cm; under
          25th percentile

4.98 kg (11
          lbs); under 50th percentile



[7]

Ms. York insisted that she raised the concerns
    about Coles head size at each visit and that each time she was told it was
    normal. Dr. Conley denied that Ms. York ever raised this concern as he would
    have written it down if she had. Rather, his evidence was that he was the one
    who raised the concern about Coles head size. When Cole visited Dr. Conley for
    the last time on October 15 before the family moved to Barrie, Dr. Conley gave Ms.
    York Coles immunization form and, according to Ms. York, told her that the
    next expected visit would be in two months time. Ms. York said they would find
    another doctor in Barrie.

[8]

According to Dr. Conley, his nurse had taken
    Coles head circumference measurement that day (42 cm), and he remeasured and obtained
    a measurement of 41.5 cm. Dr. Conley testified he would have been discussing his
    concern with Coles head size with Ms. York and would have recommended that she
    take Cole for a follow up in two to three weeks. There was no evidence that he
    provided her with a referral to a physician in Barrie. Nor did he provide Ms.
    York with Coles chart or follow up. Dr. Conley acknowledged that he had some
    limited recollection of the September 3 and October 15 visits, but not the
    September 21 visit, and would otherwise require his notes.

[9]

In addition, Ms. York took Cole to a walk-in
    clinic on November 13. She was concerned because Cole had developed a cough and
    did not seem to be eating enough. He was seen by Dr. Park. Dr. Park
    acknowledged at trial that he had no recollection of this visit apart from his
    notes. Although the visit was very short, Dr. Park measured Coles head. His
    notes indicate that it was 45 cm in circumference, which Dr. Park plotted and
    found that it was in the 95th percentile. He testified that this was definitely
    abnormal. His notes also say large head, [t]o ER for assessment, and URI
    for upper respiratory tract infection. Considering the ER note, Dr. Park
    testified that he would have explained his concern to Ms. York, and he would
    have told her to go to the emergency room as soon as possible. Ms. York denied
    that Dr. Park had expressed any concern to her about Coles head size or that
    he had told her to take Cole to the emergency room that day, stating Im a new
    mom. I mean, he has a freckle on his right arm, you know, I would bring that up.
    According to Ms. York, Dr. Park told her that everything was fine and Cole was
    in good health.

[10]

The young family moved to Barrie as planned at
    the end of November. On December 6, Ms. York took Cole to the emergency
    department at the Royal Victoria Hospital in Barrie because he was drooling
    more than usual and there were white patches on his gums. The hospital records
    indicate it was thrush. From what Ms. York could remember, the doctor did not
    measure Coles head and his head was not an issue that day. According to Ms.
    York, they left with no problems, no issues.

[11]

On December 11, 1999, Ms. York attended a social
    gathering where a family friend named Susan Williams, a pediatric nurse who
    worked for pediatrician Dr. Schelberg, was also present. Ms. Williams expressed
    concern about the size of Coles head, and she testified that Ms. York 
was surprised that I thought there was a problem with the size of
    the head because she had been told it was normal. Ms. Williams
offered to arrange for Dr. Schelberg to see Cole. Ms. York readily
    agreed and took the next available appointment which took place on December 16,
    1999. Dr. Schelberg
examined Cole and measured his
    head, and his notes indicate large head. Specifically, Dr. Schelberg documented
    a head circumference of 50 cm, greater than the 95th percentile.

[12]

Dr. Schelberg advised Ms. York that Cole had
    hydrocephalus.
Dr. Schelbergs clinical notes had
    included the phrases dilated veins, (+) sunset and (+) crackpot sign. During
    his examination in chief, Dr. Macnab, an expert witness for the appellants, reviewed
    Dr. Schelbergs findings. Dilated veins on the surface meant that the pressure
    from the hydrocephalus was compromising normal circulation of blood through the
    blood vessels. Sunsetting eyes, where you can see the whites of the eyes more
    than the pupil, were a sign that pressure damage had occurred to the nerve
    pathways that control eye movement. A cracked pot sign referred to Coles skull
    bones being so pushed apart that the skull was effectively broken because of
    the rising pressure in his head.

[13]

Dr. Schelberg referred Cole to Dr. Drake, a neurosurgeon
    at the Hospital for Sick Children, who saw him the next day, on December 17. According
    to Ms. York, Dr. Drake advised her that Cole had severe hydrocephalus. Cole
    needed surgery to insert a shunt, which would drain the excess fluid from his
    brain. Cole underwent this surgery on December 19, 1999.


[14]

Dr. Conleys wife worked at Dr. Conleys office,
    and she testified that she had received a call from Mr. Harold York, Ms. Yorks
    father, on December 17, 1999, based on a note she had taken. The note said Mr.
    York called to say Cole has been diagnosed with hydrocephalus and [a]lso
    stated Dr. C had told Kim to have head size checked. Mr. York did not recall
    making that call and was sure that call never took place. He also denied
    having made that last statement, saying [t]hats absolutely not possible
    because Dr. Conley had always said that Coles head size was normal.

(2)

The trial

[15]

The main issues at trial were standard of care,
    causation, and damages. On the first issue, which is also the relevant issue on
    this appeal, the central dispute was whether Dr. Conley and Dr. Park had met
    the applicable standard of care. The appellants position was that they had not.
    They argued that neither doctor had told the parents that Coles head size was
    a matter of concern. Even if some concern was expressed at the time, the
    standard of care required the doctors who saw Cole in October and November to
    take additional steps and actually make referrals, among other things. Further,
    the notion that Ms. York would not have brought Cole for assessment right away,
    had she been instructed to, defied common sense, particularly in light of the
    fact that this was a mother who was good at following up on instructions and took
    Cole to many medical appointments, including for small things.

[16]

The respondents position was that both doctors
    had expressed their concerns to Ms. York; that the doctors had taken sufficient
    steps because a referral was not required when Dr. Conley saw Cole on October
    15 and Dr. Park had told Ms. York to take Cole to the emergency room; and that
    Ms. York had chosen not to take Cole for follow up with a doctor or to the
    emergency department despite receiving advice to do so.

[17]

In short, the issues of credibility and
    reliability at trial as they related to standard of care were central issues
    revolving around what the two doctors had said to Ms. York on the various
    occasions that they saw Cole, whether she followed any instructions she was
    given, and whether the doctors actions or omissions met the applicable
    standard of care.

(3)

The expert evidence at trial

[18]

Although there were 27 experts who testified at
    the trial, only four testified as to the standard of care. For the appellants, three
    doctors were qualified as experts as to the standard of care:

1.

Dr. James Rourke, an expert in family medicine,
    creator of the Rourke Baby Record guideline for looking after babies and
    infants up to the age of five used by most family doctors in Canada;

2.

Dr. Andrew Macnab, an expert in pediatrics and
    neonatology, a subspecialty of pediatrics concerned with looking after newborn infants,
    and a professor at the University of British Columbia; and

3.

Dr. Jan Ahuja, an expert in walk-in centre care,
    a walk-in and emergency medicine physician, a professor at the University of
    Ottawa, and a peer assessor and medical inspector for the College of Physicians
    and Surgeons of Ontario.

[19]

For the respondents, the following doctor was
    qualified as an expert as to the standard of care:

1.

Dr. Barry Bruce, an expert in family medicine and episodic care, a
    physician practicing in Carp, Ontario who has mainly worked in general family
    practice and episodic walk-in patient care, and former Chief of Staff at the
    Queensway Carleton Hospital in Ottawa.

[20]

Dr. Rourke opined that the abnormal and serious
    clinical finding of rapidly increasing head circumference was evident by
    October 15, 1999, at which point it had increased from over the 25th percentile
    to the 50th percentile and then to the 97th percentile over a six-week period. He
    noted that by September 21, Coles weight had remained on the same percentile
    from September 3, while the head moved up significantly, and that at this
    point in time, ones got to be concerned about which is the problem. He
    testified that Dr. Conley fell below the standard of care on October 15, 1999 because
    based on Dr. Conleys notes, Dr. Conley had failed to recognize the serious
    implications of Coles very abnormal head circumference growth, failed to carry
    out and record an assessment with respect to the serious clinical finding, and
    failed to make an urgent referral to a specialist.

[21]

Dr. Macnab opined that the standard of care
    required that a baby with Coles pattern of head growth, as documented by Dr.
    Conley on October 15, 1999, must be referred to a specialist immediately. Dr.
    Macnab explained that growth typically occurs along the centile we are born on,
    so when patterns of growth fall off percentiles, it is worrying because it
    means the growth is not following the normal curve. He plotted Dr. Conleys
    measurements of Coles head circumferences and pointed out that while there was
    cause for concern even at the visit of September 21 because there was crossing
    of centiles, Coles head measurement by October 15 was essentially off the
    centile chart and showed a highly abnormal pattern of growth requiring
    immediate action, namely referral to a specialist. When asked to assume that
    Dr. Conley did tell Ms. York to take Cole to have his head checked and whether a
    patient can be expected to follow that advice, Dr. Macnab opined that its not
    appropriate to delegate or abdicate this kind of decision, responsibility,
    care, next step, to a young mother and that with something this important,
    the follow-up has to be guaranteed.

[22]

Dr. Ahuja opined that Dr. Park fell below the
    standard of care because he failed to carry out and record a complete history
    and physical examination related to the abnormal and significant finding of
    Coles head size, he failed to discuss this abnormal finding with Ms. York, and
    he failed to properly and effectively refer Cole for further urgent assessment.
    Dr. Park did not act appropriately upon his finding of an abnormal head size.
    He should have provided a copy of his record of treatment clearly indicating
    his concerns, sent a consult note to the emergency department indicating his
    concerns, and made direct contact with at least a triage nurse at the emergency
    department of the hospital. Dr. Ahuja assumed that these things were not done
    because they were not documented but agreed that if something is not written
    down it does not necessarily mean that the act did not happen. His opinion was
    that Dr. Parks chart was clinically substandard.

[23]

Dr. Bruce opined that both Dr. Conley and Dr.
    Park met the standard of care. Rather than using the Boston Graph that Dr.
    Conley had used in 1999, Dr. Bruce re-plotted Coles head circumference
    measurements on the graph used by Dr. Park with different percentile curves. Dr.
    Bruces plots showed that Coles head circumference was at approximately the 75th
    percentile on September 3, about the 80th percentile on September 21, and about
    the 95th percentile on October 15. His opinion was that Coles changing head
    size over the three visits in itself did not require a referral, and Dr. Conley
    was not obliged to make a referral for Cole on October 15, as Cole was
    otherwise well. Even using Dr. Conleys percentiles and plotting, the standard
    of care on October 15 did not require a referral, only that head circumference
    be remeasured again within two to four weeks. Dr. Conley had appropriately remeasured
    Coles head when he identified a concern about head size, and it was
    appropriate to advise Ms. York to have Coles head size followed by a new
    physician, if one could be found, at an appropriate time.

[24]

With respect to Dr. Park, Dr. Bruce said he had
    met the standard of care because he recognized that Cole had a large head, he
    had measured it, he had assessed the measurement and found a clear abnormality,
    and he had decided to send Cole to the emergency room for assessment. Assuming
    that Dr. Park had told Ms. York that his reason for wanting her to go to the
    emergency room was for an assessment of Coles head size and that he had given
    her a note with his findings for the emergency room doctor, that would meet the
    standard of care. No additional steps were required. Dr. Park was entitled and
    obligated to rely on Ms. York to take Cole to the emergency room.

[25]

In cross-examination, Dr. Bruce agreed that he ignored
    Ms. Yorks evidence when he wrote his report, because he did not think it was
    relevant. He also expressed his opinion that he did not think Ms. Yorks memory
    was accurate, that he had put more weight on Dr. Conleys evidence because he
    had some notes, and that it was inconceivable that Dr. Park had not told Ms.
    York to take Cole to the emergency room.

[26]

As I will discuss further below, the evidence of
    Dr. Conley and Dr. Park was irreconcilable with the evidence of Ms. York. Dr.
    Conley maintained that he expressed concern about Coles head size in October
    and that Ms. York did not raise a concern about his head size during any of the
    visits as he would have written that down. Ms. York testified that she was the
    one who raised the concern and was repeatedly reassured that Coles head size was
    within normal range and that she should not worry. She specifically denied that
    Dr. Conley told her on October 15 that she needed to have Coles head size
    watched or checked, stating that she was given the immunization record and told
    that Cole did not need to be seen for another two months. With respect to Dr.
    Park, Ms. York denied that he had told her to take Cole to the emergency room,
    saying that she would have done so had he said that. Credibility and
    reliability of the lay witnesses was thus a critical issue for the jury to
    resolve in this trial.

(4)

Issues at trial with respect to expert evidence

[27]

There were no objections to the admissibility of
    Dr. Bruces evidence either at the outset or in the course of his testimony and
    cross-examination. Following Dr. Bruces testimony, however, the respondents attempted
    to qualify another doctor, Dr. Karen Fleming, as an additional expert in the
    standard of care. The appellants objected to Dr. Fleming being qualified as an
    expert because she lacked independence and impartiality and her evidence was
    unnecessary.

[28]

The trial judge reviewed Dr. Flemings reports and
    found that they included credibility assessments, inaccuracies, and methodological
    flaws, and thus lacked objectivity. Dr. Fleming accepted the evidence of the respondent
    doctors and rejected the evidence of the appellants without explanation, and
    she was unwilling or unable to recognize or acknowledge this preference. She made
    improper fact-finding and credibility assessments and acted as both judge and
    jury. The trial judge found that there was a serious concern that the jury
    would accept the premise underlying Dr. Flemings opinion as conclusive or be affected
    by her acceptance of certain facts. The trial judge concluded that Dr. Fleming
    lacked independence, rendering her incapable of providing an impartial opinion
    and refused to admit her evidence.

(5)

Pre-charge conference and closing submissions

[29]

At the pre-charge conference, counsel for the
    respondents made submissions clarifying the trial judges summary of Dr.
    Bruces evidence. Counsel for the appellants did not make submissions on Dr.
    Bruces evidence except to clarify that Dr. Bruce had not opined on whether he
    accepted Harold Yorks evidence.

[30]

During closing submissions, counsel for the
    respondents told the jury that they would need to make decisions on the
    credibility and reliability of the fact witnesses and expert witnesses. Counsel
    submitted that the standard of care issue in the case was driven by two main
    questions, namely, what actually happened between Dr. Conley and Ms. York on
    October 15 and between Dr. Park and Ms. York on November 13: (1) whether Dr.
    Conley told Ms. York on October 15 that Coles head size needed to be followed;
    and (2) whether Dr. Park told Ms. York on November 13 that she should take Cole
    to the emergency room. The answers to these two questions should be yes. It
    made no sense that both doctors would have been concerned about Coles head
    size, recorded that concern, and not told Ms. York. With regard to the expert
    evidence on the standard of care issue for both Dr. Conley and Dr. Park,
    counsel encouraged the jury to accept the evidence of Dr. Bruce.

[31]

Counsel for the appellants submitted that the
    question was not what Dr. Conley may or may not have told Ms. York, as defence
    counsel had framed it, but rather what he ought to have done in those
    circumstances. There were instances where Dr. Conley and Dr. Park appeared to
    change their evidence, and counsels position was if the doctors did nothing
    wrong during the October and November visits, they would not need to come to
    court and attempt to change their evidence. Counsel for the appellants also
    emphasized the importance of the credibility of the witnesses and highlighted
    the evidence of Dr. Bruce on standard of care. Counsel submitted that Dr. Bruce
    did not fulfill his obligation to the court to provide objective evidence, read
    from a transcript of Dr. Bruces cross-examination, and submitted that the jury
    could not trust Dr. Bruce.

(6)

The jury charge and verdict

[32]

The jury charge consisted of general principles
    that apply to civil jury cases, legal principles on the issues that governed
    the case including liability, causation, and damages, the specific questions
    the jury would need to answer, and instructions to assist the jury with its
    deliberations. The trial judge told the jury that in deciding the facts in this
    case, they would need to weigh and judge the testimony of witnesses for
    credibility and reliability. She provided guidance for dealing with expert
    testimony, instructing the jury to take into account the experts skill,
    experience, knowledge, familiarity with the facts, credibility, and whether the
    expert seemed impartial and fair or unwilling to consider opinions other than
    their own. Further, the jury was entitled to reject an experts opinion or find
    it less helpful if they found the facts to be different from those underlying the
    opinion.

[33]

In reviewing the legal principles in the case,
    the trial judge began with negligence and the question of whether the defendants
    breached the required standard of care. The jury was told that if this was not
    proven, the plaintiffs could not succeed. The trial judge began her review of the
    evidence on standard of care by telling the jury that while judges have a right
    to comment on a witnesss credibility and inferences to be drawn from the
    evidence, she did not intend to do so, and that it was the jurys duty to
    interpret the evidence. In reviewing Dr. Bruces evidence, the trial judge
    mentioned the cross-examination where Dr. Bruce testified that he had accepted
    Dr. Conleys evidence, did not accept anything Ms. York said because she was
    probably mistaken, and did not reference any of Mr. Parliaments evidence. The
    trial judge did not give a specific instruction in the charge regarding Dr.
    Bruces evidence, but she did end the standard of care portion of her charge by
    reminding the jury that it was up to them to determine the weight to give an
    expert opinion by considering various factors and questions, including whether the
    witness seemed impartial and fair.

[34]

The jurys verdict was that Dr. Conley and Dr.
    Park did not breach the standard of care. The jury made no findings on
    causation. The trial judge dismissed the action against Dr. Conley and Dr. Park
    in accordance with the jurys verdict.

C.

Issues on appeal

[35]

The appellants found their appeal on the trial
    judges failure to exclude Dr. Bruces evidence, or alternatively, to provide a
    clear and specific instruction to the jury with respect to his lack of
    impartiality and the impropriety of his assessments of the parties credibility.
    They argue that a new trial is required.

[36]

The respondents argue that, first, the jury
    charge was sufficient to instruct the jury as to the concerns surrounding Dr.
    Bruces evidence, and that this concern about bias simply went to the weight to
    be given to the opinion. Moreover, they argue that the appellants ought not to
    succeed on appeal on a new concern not raised at trial. Finally, they argue that
    the verdict was reasonable. There was no miscarriage of justice; the appellants
    simply failed to meet their onus of proof.

D.

Analysis

(1)

Did the trial judge err by failing to exclude
    Dr. Bruces evidence or by failing to provide a specific instruction to the jury?

(a)

Positions of the parties

[37]

The appellants submit that Dr. Bruces evidence
    was inadmissible in whole or in part, and that the trial judge erred in failing
    to so instruct the jury. Dr. Bruces evidence was inadmissible because he
    failed to fulfill his duty to be independent or impartial. He accepted the
    version of events presented by the respondents and ignored the evidence of the
    appellants. Dr. Bruce not only provided his opinion on what he thought

happened
    on central questions in dispute, but he even went so far as to purport to make
    findings of fact. The trial judge should have exercised her residual discretion
    as part of her gatekeeping role to exclude Dr. Bruces evidence or at the very
    least, she should have provided a specific instruction to the jury concerning
    the impropriety of Dr. Bruces evidence and his failure to fulfill his duty.

[38]

The respondents argue that the appellants
    closing submissions warned the jury about Dr. Bruces alleged bias in his
    testimony with respect to both Dr. Conley and Dr. Park, and about Dr. Bruce ignoring
    Ms. Yorks evidence and accepting the evidence of the physicians, despite the
    fact that they acknowledged having no recollections of the visits while Ms.
    York testified that she did. The respondents also submit that the charge
    contained all the necessary warnings on credibility and reliability of all
    witnesses and reiterated the appellants concerns with Dr. Bruces evidence.
    Even if the appellants had asked the trial judge to exclude Dr. Bruces
    evidence, it would have been inappropriate for her to do so. Dr. Bruces
    evidence did not reveal a level of bias that would go to threshold
    admissibility, and any concerns about bias would appropriately go to the weight
    to be given to his evidence. He did not make findings of fact and he did not
    advocate for the position of the respondents. He was merely making assumptions
    and being cross-examined on those assumptions. Dr. Bruce reviewed the records
    and transcripts and provided an expert opinion based on that review.

(b)

Impugned evidence of Dr. Bruce

[39]

The credibility and reliability of the lay
    witnesses were critical issues for the jury to resolve in this trial. It is
    against this backdrop that the appellants argue that Dr. Bruce was neither
    independent nor impartial  that he opined on matters going to the heart of the
    credibility and veracity of Ms. York, Mr. Parliament, and the two doctors, at
    times stating that he did not think Ms. Yorks evidence was relevant, that it
    was untruthful, or that she could not have remembered it correctly. It is
    necessary to review some of the impugned portions of Dr. Bruces testimony in
    order to assess the submissions of the appellant.

[40]

Dr. Bruce agreed on cross-examination that he
    chose to accept Dr. Conleys evidence over Ms. Yorks evidence, explaining that
    he could find discrepancies in their evidence, that Ms. Yorks evidence in
    discovery was not relevant, that he assumed Ms. York could not remember
    correctly despite Ms. York saying that she had a clear recollection and Dr.
    Conley saying he did not remember those visits well, and that he was not sure
    her memory of the events was accurate:

Q.
And
    you proceeded on the assumption throughout your report that Ms. York is
    untruthful; yes?

A.
I
    did find discrepancies between what I could read in the charts and what Ms.
    York was saying, yes.



Q.      Why
    didnt you put down the information that Ms. York said in her discovery?

A.
Well, because I didnt think it was
    relevant.

Q.      Not
    relevant? The fact that she says that he never mentioned -- she brought to ...
    Dr. Conley a concern about Coles head size and he told her it was normal, thats
    not relevant? The fact that he told her that everything was normal on October
    15th, thats not relevant?

A.      I
    think with so many years, that
nobody could remember exactly what was said.
I think thats why I was looking at -- Dr. Conley had his notes to refer to,
    and he had some memory of what he would have done, but there were no notes that
    were kept by Coles mother.



Q.      [W]ere
    you fair and objective and nonpartisan here?

A.      I think so.

Q.      By not referring to Ms. Yorks evidence?
    Yes?

A.
Well,
    by assuming she couldnt remember correctly.

Q.      Why
    would you assume that if she says she remembers?

A.      It was so many years.

Q.      So
    you assume that shes just making it up? Thats it; right? Under oath, shes making
    those statements up? Thats your assumption?

A.      I
    dont think shes --
she believes that she remembers it, but Im not sure
    that it was accurate.



Q.      So
    didnt you --
you perceived your role in this case to actually assess the
    credibility of the two parties and make a decision who you believe or who you dont
    believe?

A.      I cant answer that.

Q.      Well,
    of course you can because thats what you did.
You chose to take Dr. Conleys
    evidence, including those things that he [had] not documented in his records
    just because he said it on discovery and used that to defend him. Yes or no?

A.
Its true.
[Emphasis added.]

[41]

Dr. Bruce later went on to opine in
    cross-examination that Dr. Conley had conducted a sufficient neurological
    examination despite the limited notes on Coles neurological status on October
    15 because he could read between the lines. Dr. Bruce also assumed that Dr.
    Conley had told Ms. York to have Coles head size followed, based on the note
    will watch head size:

Q.      I
    see. So how about this reading between the lines: So for everything else, you dont
    accept Ms. Yorks evidence, but for this neurological examination, whatever she
    told Dr. Conley is gospel for you; right?

A.      No.
Dr. Conley made notes of it at the time and made excellent notes at the
    time, and, yes, its gospel. What the mother said was relying on memory for
    events that had occurred many years before, so I have to be a little askance
    that those were remembered correctly, yes.

Q.      Theres
    no note in Dr. Conleys chart that says that he told the mother to go and have
    the head checked; correct?

A.      Theres
    no note that says specifically those words, no.



Q.      Where
    do you get the fact that Dr. Conley told the mother -- as you say in your
    report, Dr. Conley told the mother to go and see another doctor to have the
    head checked. Where did you get that information from?

A.      Ill have to see exactly what I said.

Q.
You
    wrote: It was appropriate for Dr. Conley in the circumstances to advise Ms.
    Parliament, as he did, to have Coles head size followed by his new physician.

A.      Yes.

Q.      Where did you get that from?

A.
Well, thats what
    I assume from that one line, will watch head size.
[Emphasis added.]

[42]

The appellants also point to Dr. Bruce preferring
    the evidence of Dr. Park over Ms. York and straying well beyond the confines of
    his role during his cross-examination when providing his opinion about whether
    Dr. Park met the standard of care:

A.

Hes required to prepare a note. Actually, a
    large head, as serious as it is, is a rather simple concept to portray.



Q.      All right. You reviewed his notes. Did
    you find any?

A.      No. No, I did not.

Q.
But
    for that purpose, you -- to render your opinion, you relied on Dr. Parks evidence
    even though its nowhere in the records; correct?

A.
Yes.

Q.
And,
    again, you ignored Ms. Yorks evidence on that point; right?

A.
Yes.



Q.      Well,
    Im suggesting to you that its not enough, given what we discussed, just to
    tell the mother. He needs to write a detailed note, call the emergency
    department or another physician who hes referring the patient to and have that
    talk so that he makes sure that the baby is seen and that his advice is
    understood; do you not agree?

A.
         I think its clear that -- no, not entirely.
I think its clear that he
    did
. Its inconceivable that he didnt convey this, given the gravity of
    it, to the mother.
Its inconceivable that he didnt directly tell her to go
    to emergency.

Q.      Well,
    is it conceivable that a mother who brings the child to a doctor on a Saturday
    because of a cold or cough --

A.      Yes.

Q.      --
    is not going to go to the emergency, which is five to seven minutes away, when shes
    told your baby may have hydrocephalus, that this is a significant brain issue;
    do you think that is more conceivable?

A.      It does not sound
    usual to me, but its conceivable because
thats what happened.
[Emphasis added.]

(c)

The principles

[43]

Expert evidence carries with it the risk that a
    jury will inappropriately defer to the experts opinion rather than carefully
    evaluate it:
White Burgess Langille Inman v. Abbott and Haliburton Co
.,
    2015 SCC 23, [2015] 2 S.C.R. 182, at para. 17;
R. v. Mohan
, [1994] 2 S.C.R.
    9, at pp. 21-22. The test for admissibility of expert evidence consists of two
    steps. First, the proponent of expert evidence must establish that four
    conditions are met in order to establish its admissibility: relevance;
    necessity in assisting the trier of fact; absence of an exclusionary rule; and
    a properly qualified expert. The second stage of the inquiry requires the trial
    judge to conduct a cost-benefit analysis to determine whether otherwise
    admissible expert evidence should nevertheless be excluded because its
    probative value is outweighed by its prejudicial effect.

[44]

The ultimate conclusion as to the credibility or
    truthfulness of a particular witness is for the trier of fact, and it is not
    the proper subject of expert opinion. The rationale for this policy is that credibility
    is a notoriously difficult problem, and a frustrated jury may readily accept an
    experts opinion as a convenient basis upon which to resolve its difficulties:
    see
R. v. Marquard
, [1993] 4 S.C.R. 223, at p. 248. In addition, one
    of the central dangers of expert evidence is that finders of fact, and juries
    in particular, may be too ready to rely on experts who appear to be
    knowledgeable, credible and reliable. Doherty J.A. explained this danger in
R.
    v. Abbey
, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 90, leave to appeal
    refused, [2010] S.C.C.A. No. 125:

Clearly, the most
    important risk is the danger that a jury will be unable to make an effective
    and critical assessment of the evidence. The complexity of the material
    underlying the opinion, the expert's impressive credentials, the impenetrable
    jargon in which the opinion is wrapped and the cross-examiner's inability to
    expose the opinion's shortcomings may prevent an effective evaluation of the
    evidence by the jury. There is a risk that a jury faced with a well-presented
    firm opinion may abdicate its fact-finding role on the understandable
    assumption that a person labelled as an expert by the trial judge knows more
    about his or her area of expertise than do the individual members of the jury.

[45]

It is well established that a trial judges role
    as gatekeeper is not exhausted once a particular expert has been permitted to
    testify on the basis of their qualifications and the content of their report:
    see
Bruff-Murphy v. Gunawardena
, 2017 ONCA 502, 138 O.R. (3d) 584, at
    paras. 62-66, leave to appeal refused, [2017] S.C.C.A. No. 343;
R. v.
    Sekhon
, 2014 SCC 15, [2014] 1 S.C.R. 272, at paras. 46-47. Rather, the
    trial judge must protect the integrity of the process by ensuring that the
    expert does not overstep the acceptable boundaries in giving evidence. As
    Doherty J.A. stated in
Abbey
, at para. 62, it is essential that trial
    judges ensure both [a] cautious delineation of the scope of the proposed
    expert evidence and strict adherence to those boundaries, if the evidence is
    admitted.

[46]

However, even when the content and scope of an
    experts evidence is delineated in advance, the expert may stray in the course
    of their oral testimony. As Hourigan J.A. noted in
Bruff-Murphy
,

at
    paras. 62-63:

A trial judge in a civil jury case qualifying
    an expert has a difficult task. She must make a decision based on an expert
    report that will, in most cases, never be seen by the jury. While the report
    provides a roadmap of the anticipated testimony and specific limits may be
    placed on certain areas of testimony,
the trial judge obviously cannot predict with certainty the nature
    or content of the experts testimony.

Where, as here,
    the experts eventual testimony removes any doubt about her independence, the
    trial judge must not act as if she were
functus
. The trial judge
    must continue to exercise her gatekeeper function. After all, the concerns
    about the impact of a non-independent expert witness on the jury have not been
    eliminated. To the contrary, they have come to fruition.
At that stage, when the trial judge recognizes
    the acute risk to trial fairness, she must take action.
[Emphasis added.]

[47]

The continuing gatekeeping role means that trial
    judges must not only continue to ensure that the experts actual testimony does
    not overstep the appropriate scope of the expert evidence; they must also
    include ensuring that the experts testimony continues to be independent in the
    sense that the expert does not become an advocate for the party by whom they
    are called.

[48]

As Hourigan J.A. made clear in
Bruff-Murphy
,
    the continuing gatekeeper role of a trial judge includes the continuation of
    the residual discretion to exclude evidence when they are not satisfied that
    the testimonys probative value exceeds its prejudicial effect: at paras. 65-66;
R. v. White
, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 50; and
R.
    v. Bingley
, 2017 SCC 12, [2017] 1 S.C.R. 170, at para. 30.

(d)

Application

[49]

There does not appear to have been anything
    inherently improper about Dr. Bruces opinion as to the applicable standard of
    care. I would note, however, that it is not clear that the issue was canvassed
    at the
voir dire
in the same manner as was the proposed evidence of
    Dr. Fleming, which was excluded in its entirety because the trial judge
    concluded that it was not independent. Rather, it seems that the appellants consented
    both with respect to Dr. Bruces qualifications and the content of his report.
    The appellants do not argue that Dr. Bruce should not have been permitted to
    give expert evidence from the outset. However, they argue, and I accept, that as
    the extracts above demonstrate, Dr. Bruce opined on the credibility of the
    parties in his oral testimony, indicating that he believed the respondents and
    not Ms. York. The credibility and reliability of Ms. York and the two doctors
    were central issues for the jury to decide.

[50]

There were a number of problems with Dr. Bruces
    evidence as given.

[51]

First, it illustrates one of the dangers of
    expert evidence that oversteps its boundaries: the risk that a jury, faced with
    difficult issues of credibility and reliability and a well-presented expert
    opinion, will abdicate its fact-finding role on the understandable assumption
    that a person labelled as an expert by the trial judge knows more about his or
    her area of expertise than do the individual members of the jury: see
Abbey
,
    at para. 90; see also
Marquard
, at p. 248. Dr. Bruce exceeded his role
    as an expert when he opined on the credibility and reliability of the doctors
    and Ms. York, for example observing that Ms. York was untruthful and could not
    remember accurately. There was a risk that the members of the jury would accept
    Dr. Bruces credibility and reliability assessments, rather than assess the
    evidence of the witnesses and reach their own conclusions.

[52]

Second, the expression of an opinion as to the
    credibility of witnesses is also a breach of the experts duty to be
    independent. Dr. Bruce acknowledged in his evidence that in rendering his
    opinion on standard of care, he disregarded Ms. Yorks evidence and assumed
    that the doctors evidence was credible and reliable. I do not accept the
    respondents argument that all Dr. Bruce was doing was making assumptions as
    the questions put to him asked him to do. As the extracts above indicate 
    particularly its conceivable because thats what happened  it is clear that
    in some critical instances he was giving evidence about what actually happened,
    based on his view of the credibility of the witnesses. His testimony extended
    well beyond expressing opinions based on hypothetical facts he was asked to
    assume. For these reasons, this evidence was not admissible and to the extent
    his testimony opined on the credibility of the witnesses, it should have been
    excluded. These circumstances called for the trial judge to exercise her
    gatekeeping role and her residual discretion to exclude this evidence.

[53]

I do not agree with the respondents that the
    appellants closing submissions were adequate to address any prejudice caused
    to the appellants by the impugned aspects of Dr. Bruces evidence. Nothing that
    the appellants could have said in their closing would have had the force of a
    clear instruction from the trial judge to the effect that the impugned aspects
    of Dr. Bruces evidence were inadmissible. Juries are told that the trial judge
    is the judge of the law, and that they are to take their instructions from the
    trial judge. What the appellants said was simply argument.

[54]

I also do not accept the respondents submission
    that the final charge contained the necessary warnings. The vast majority of
    the cautions to which the respondents refer are contained in the general
    section of the charge and applied to all of the expert witnesses. The trial
    judge had explained to the jury how to assess the credibility and reliability
    of a witnesss evidence, with additional instructions on weighing expert
    opinions. The jury was told to consider whether the expert struck them as being
    honest, impartial, and fair, and told that they could reject an experts
    opinion if they found the facts to be different from those which formed the
    basis for the experts opinion. These general instructions came fairly early on
    in the charge, in what is often referred to as the boilerplate portion, with
    no reference to any of the individual experts who testified. The trial judge went
    on to give instructions on the burden of proof, an overview of the facts, and instructions
    on the legal principles for the standard of care before reviewing the lay
    witness and expert evidence on standard of care and recapping the instructions
    on weighing expert opinion.

[55]

There was no specific caution about Dr. Bruces
    testimony on the issue of his view of the credibility and reliability of Ms.
    York. The trial judge did, in her summary of the parties evidence, include the
    following:

On cross-examination, Dr. Bruce testified that
    he had read the transcripts of the examinations for discovery and in coming to
    his opinions had accepted Dr. Conleys evidence. He did not accept anything
    that Kim said as she was probably mistaken, nor did he reference any of John
    Parliaments evidence.



On cross-examination, Dr. Bruce testified that
    he accepted Dr. Parks evidence over Kim Yorks evidence. Dr. Bruce stated that
    its inconceivable that he didnt convey this given the gravity of it to the
    mother.

When asked whether it was conceivable that a
    mother would not take her child to the emergency department when faced with a
    potential hydrocephalus or brain injury, Dr. Bruce stated:

It does not
    sound usual to me. Its conceivable because thats what happened.

[56]

However, there was, in short, nothing in the
    charge instructing the jury to disregard Dr. Bruces evidence in relation to
    the credibility and reliability of the two doctors and Ms. York.

(e)

What should the trial judge have done?

[57]

There are two steps that the trial judge could have
    taken at the time that Dr. Bruce was testifying. First, she could have, in the
    absence of the jury, invited submissions from the parties as to the content of
    a mid-trial instruction that the jury ignore any and all of his expressions as
    to the credibility or reliability of the witnesses. Second, she could have
    included a very clear and specific instruction in the final charge on the
    point. The general comment that it was entirely up to the jury to decide [h]ow
    much or how little [they] believe of or rely upon an experts opinion was wholly
    inadequate given the risk that the jury would place undue weight on Dr. Bruces
    opinion. Given the large number of expert and lay witnesses who testified at
    trial, nothing less than a clear and specific instruction that Dr. Bruces credibility
    opinions were inadmissible and should be ignored would suffice.

[58]

The failure to so instruct the jury was a
    serious error on the part of the trial judge, despite the fact that the appellants
    counsel did not ask for either a mid-trial or a closing instruction. In this
    case, the trial judge should have delivered a prompt and clear mid-trial
    instruction during Dr. Bruces testimony and reiterated this instruction in the
    final charge. I recognize that both steps might not be necessary in all cases,
    but it was necessary in this case, given the highly prejudicial nature of the
    impugned aspects of Dr. Bruces evidence to the appellants case and the fact
    that the jury heard a great deal of additional evidence on subjects other than
    the standard of care after he testified.

[59]

The defence called approximately five witnesses
    on causation and six on damages over the next few weeks. This was not a short,
    one issue trial in which it might have been reasonable to think that the
    evidence would be fresh and that a caution in the final charge would suffice,
    or that a mid-trial caution would have sufficed in the absence of a final
    instruction that reiterated the caution. The circumstances of this trial,
    including the number of experts, its length, and the complexity of the evidence
    on a range of issues required that this instruction be given both when Dr.
    Bruce overstepped his role as an expert when giving his evidence and in the
    course of the final instructions.

(2)

Is the failure to raise the issue of Dr. Bruces
    impartiality before the trial judge fatal on this appeal?

[60]

Dr. Bruces expert evidence was admitted at the
    outset on consent. There were no objections by the appellants trial counsel to
    Dr. Bruces evidence in chief, apart from a brief objection to require Dr.
    Bruce to stay within the parameters of his report when opining on the
    significance of a childs weight, nor to the absence of any specific reference
    in the charge to Dr. Bruces lack of impartiality or bias.

(a)

Positions of the Parties

[61]

The respondents argue that the appellants should
    be precluded from raising the issue of the admissibility of Dr. Bruces
    evidence on appeal because they failed to object at trial to both the evidence
    and the jury charge. Their failure to object should be given considerable
    weight and should be fatal to their appeal. The appellants claim that Dr.
    Bruces bias was evident in his reports. The respondents also claim that the fact
    that the appellants challenged Dr. Flemings independence after Dr. Bruce had
    testified demonstrated that they were alive to the issue of Dr. Bruces bias in
    the course of the trial. Put another way, the respondents argue, the appellants
    made a conscious choice not to object to Dr. Bruces qualification, and there was
    no miscarriage of justice in this case to warrant ordering a new trial. As long
    as there is some evidence to support the jurys verdict, it should not be set
    aside. It was open to the jury to disbelieve the evidence of the appellants and
    to conclude that negligence was not proven on a balance of probabilities.

[62]

The appellants submit that a substantial wrong
    or miscarriage of justice occurred in this case and that a new trial is
    warranted, despite their failure to object at trial. The integrity of the
    administration of justice requires that expert witnesses honour their
    obligations. There was a real danger that Dr. Bruces inappropriate credibility
    and veracity assessments improperly influenced the jury. The jurys verdict was
    tainted by improper evidence and must be set aside.

(b)

The principles

[63]

The general principle is that a party in a civil
    case should not bring an appeal on the basis of some aspect of the lower court
    proceeding to which it did not object: see
Marshall v. Watson Wyatt &
    Co.
(2002), 209 D.L.R. (4th) 411 (Ont. C.A.), at para. 15;
Harris v.
    Leikin Group Inc.
, 2014 ONCA 479, 120 O.R. (3d) 508, at para. 53; and
Maurice
    v. Alles
, 2016 ONCA 287, 130 O.R. (3d) 452, at para. 25. A partys failure
    to object at trial weighs heavily against that party now bringing an appeal
    because it indicates that trial counsel did not consider that point to be
    important or of sufficient consequence to require an objection: see
Arland
    and Arland v. Taylor
, [1955] 3 D.L.R. 358 (Ont. C.A.), at p. 361;
Marshall
,
    at para. 15.

[64]

An appellant cannot ask for a new trial as of
    right due to an error during the trial when no objection was made on the point
    at trial. The failure to have objected at trial is not treated lightly by an
    appellate court and is usually fatal to an appeal on that point: see
Arland
,
    at p. 361;
G.K. v. D.K.
, 1999 CanLII 935 (Ont. C.A.), at para. 15,
    leave to appeal refused, [2000] S.C.C.A. No. 415;
Marshall
, at para.
    15.

[65]

This principle has been invoked in connection
    with an appellants failure at trial to object to a jury instruction or charge:
    see e.g.
Bruff-Murphy
, at para. 69;
Pietkiewicz v. Sault Ste.
    Marie District Roman Catholic Separate School Board
, 2004 CanLII 874 (Ont.
    C.A.), at para. 22. It is also applicable on the issue of the admissibility of
    evidence, as an objection to the admissibility of evidence on appeal will not
    usually succeed unless the objection is made at trial: see
Hoang v.
    Vicentini
, 2016 ONCA 723, 352 O.A.C. 358, at para. 63;
Marshall
at paras. 15, 30; and Sidney N. Lederman, Alan W. Bryant and Michelle K.
    Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed.
    (Toronto: LexisNexis Canada, 2018), at para. 2.109.

[66]

A new trial may be ordered in such cases,
    however, when the court is satisfied that a new trial is necessary in the
    interests of justice: see
Arland
, at p. 361;
Marshall
at
    para. 15. When an objection is made on appeal that was not made at trial, the
    focus should be on the question of whether a substantial wrong or miscarriage
    of justice has occurred: see
Marshall
at paras. 14-15;
Arland
at pp. 364-65;
Pietkiewicz
at paras. 22-28.

[67]

In sum, this court can exercise its discretion
    to grant a new trial or other remedy despite the failure of the appellants to
    object to the jury charge or the admissibility of Dr. Bruces evidence if it
    finds that the errors alleged by the appellants were errors that constituted a
    substantial wrong or miscarriage of justice and that the interests of justice
    require granting relief.

(c)

Did the errors constitute a substantial wrong or
    miscarriage of justice?

[68]

As I have indicated above, the trial judge
    erred in failing to advise the jury that it could not consider Dr. Bruces
    evidence on the respective credibility and reliability of the parties.

[69]

It is not possible to assess with any certainty
    the impact of Dr. Bruces evidence. That, however, misses the point, which is
    whether there has been a miscarriage of justice in this case. Given the
    centrality of credibility in this case, and the absence of any caution about
    Dr. Bruces evidence (apart from summarizing the appellants cross-examination
    of Dr. Bruce), there is a very real possibility that Dr. Bruces evidence on
    credibility and reliability played a significant role in the jurys decision to
    find that the standard of care was met by both doctors during the October and
    November visits.

[70]

As Hourigan J.A. wrote in
Bruff-Murphy
at para. 72, [t]his court has a responsibility to protect the integrity of the
    justice system. This is not a no harm, no foul situation. The sole witness
    for the respondents on the issue of standard of care exceeded the admissible
    scope of his evidence and opined on the credibility of the witnesses, which was
    highly prejudicial to the appellants. The impugned evidence tainted the jurys
    verdict and the verdict must be set aside.

[71]

For these reasons, I conclude that there has
    been a miscarriage of justice and a new trial is required.

E.

Disposition

[72]

I would allow the appeal, set aside the judgment
    below, and order a new trial. Costs of the appeal in the agreed amount of $25,000
    are payable by the respondents to the appellants. The parties advised us that
    they had an agreement on the costs below so it is unnecessary for us to address
    those.

Released: April 26, 2021 G.H.

A. Harvison Young J.A.

I agree Grant Huscroft J.A.

I agree I.V.B. Nordheimer J.A.


