



COURT OF APPEAL FOR ONTARIO

CITATION: Imeson v. Maryvale (Maryvale
    Adolescent and Family Services), 2018 ONCA 888

DATE: 20181107

DOCKET: C62789

Epstein, van Rensburg and Brown JJ.A.

BETWEEN

Jesse Norman Imeson

Plaintiff (Respondent)

and

Maryvale (also
    known as Maryvale Adolescent and Family Services)
, Tony Doe, The Roman
    Catholic Episcopal Corporation for the Archdiocese of London and Father Horwath

Defendants (
Appellant
)

Stephen G. Ross and Meryl Rodrigues, for the appellant

Loretta P. Merritt and Sumeet Dhanju-Dhillon, for the
    respondent

Heard: March 6, 2018

On appeal from the judgment of Justice Elizabeth M. Stewart
    of the Superior Court of Justice, sitting with a jury, dated September 22, 2016.

van Rensburg J.A.:

A.

Overview

[1]

This appeal, which concerns the treatment of participant expert evidence
    by a trial judge in a civil jury trial, illustrates the importance of
    scrutinizing such evidence to ensure that the participant expert does not exceed
    his or her proper role.

[2]

Maryvale Adolescent and Family Services (Maryvale or the appellant)
    was found vicariously liable for sexual assaults alleged to have been committed
    against the respondent, Jesse Imeson, by its former employee, Tony Doe. Although
    the respondent testified that he was also sexually abused by Father Horwath, a
    deceased Roman Catholic priest, the jury did not accept that claim, and the
    action as against The Roman Catholic Episcopal Corporation for the Archdiocese
    of London (the Archdiocese) and Father Horwath was dismissed.

[3]

The appellants central argument on appeal is that the trial judge erred
    in admitting the opinion evidence of Dr. Kerry Smith, a mental health clinician
    who treated the respondent and who gave evidence at trial as a participant
    expert. As a participant expert, he was exempt from the requirements that apply
    to litigation experts under r. 53.03 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194.

[4]

The appellant says the trial judges error was compounded by her instruction
    to the jury to consider such evidence in determining whether the sexual
    assaults occurred.

[5]

The appellant also takes issue with the trial judges decision to admit
    into evidence both Dr. Smiths oral testimony and the summaries he had prepared
    based on handwritten notes, which contained details of his treatment sessions with
    Mr. Imeson, as well as various comments and opinions.

[6]

For the reasons that follow, I would allow the appeal and would direct a
    new trial of the action concerning the alleged sexual assaults of the
    respondent by Tony Doe.

[7]

As I will explain, Dr. Smith ought not to have been permitted to provide
    opinion evidence that went to the issues of whether the alleged sexual assaults
    occurred (liability) and whether Mr. Imeson suffered harm that was caused by
    such assaults (causation). The expert opinions that were elicited in this trial
    for such purposes went beyond Dr. Smiths role as a participant expert under
Westerhof
(
Westerhof v. Gee Estate
, 2015
    ONCA 206
, 124 O.R. (3d) 721, leave to appeal refused, [2015]
    S.C.C.A. No. 198). Under
Westerhof
, a participant experts exemption
    from r. 53.03 is lost to the extent the experts opinion is not based on the
    experts observation of or participation in the relevant events and not formed
    as part of the ordinary exercise of his or her skill, knowledge, training and
    experience while observing or participating in such events.

[8]

Furthermore, Dr. Smiths expert opinions going to the issues of liability
    and causation failed to satisfy the threshold requirements of admissibility
    under the first step of
Mohan
(
R. v. Mohan
, [1994] 2 S.C.R.
    9), as that test has been clarified in
White Burgess

Langille
    Inman v. Abbott and Haliburton Co.
, 2015 SCC 23, [2015] 2 S.C.R. 182, and
    ought to have been excluded under the second step of the admissibility test because the prejudicial
    effect of such evidence outweighed its probative value.

B.

FACTS

(1)

The Sexual Assault Action

[9]

Jesse Imeson had a very troubled childhood with significant family
    instability and behavioural problems. In 1996-1997, he spent a few months at
    Maryvale, a residential institution devoted to the care and education of
    troubled youth.

[10]

In
    2008, Mr. Imeson was convicted of three counts of second degree murder. The
    first victim was killed in a fight. A few days later, Mr. Imeson killed two
    people with their own gun after breaking into their cottage. He is serving
    three life sentences for murder in a federal penitentiary.

[11]

In
    2009 or early 2010, while in prison, Mr. Imeson first alleged that he had been
    sexually assaulted by Tony Doe, a former child and youth worker with
    Maryvale. The complaint was made to his lawyers in this litigation, which was
    commenced in 2011. He also alleged that, about a year after leaving Maryvale,
    and while in foster care, he was sexually abused by Father Horwath.

[12]

There
    were no witnesses to the alleged sexual abuse, which abuse the defendants
    denied.

[13]

The
    trial took place in September 2016 before a judge and jury. There were four
    witnesses: Mr. Imeson, Dr. Smith, Tony Doe (the former Maryvale employee),
    and Father Comiskey, who testified on behalf of the Archdiocese. The
    examination for discovery evidence of Father Horwath, who passed away before
    the trial, was also read in as evidence at trial.

(2)

The Expert Evidence

(a)

Dr. Smiths Reports

[14]

Dr.
    Smith provided therapy to Mr. Imeson within the correctional institution from
    June 26, 2012 to April 13, 2015, when Mr. Imeson discontinued therapy.

[15]

During
    the treatment sessions, Dr. Smith took handwritten notes, which he kept as
    personal notes in his file cabinet. In April 2016, at Mr. Imesons request, Dr.
    Smith completed summaries of the notes (referred to at trial as his reports),
    which he published to OMS, a computerized document handling system available to
    individuals with clearance in Correctional Services Canada.
[1]
The reports were all dated April 1, 2016, except for a termination of
    treatment report dated April 21, 2016, as well as an earlier report dated
    February 17, 2015. In accordance with the institutions internal policies, Dr.
    Smith destroyed his handwritten notes after he published his summaries to OMS.

[16]

Dr.
    Smiths reports are not a verbatim record of his handwritten notes. They do not
    indicate specific session dates. They summarize the treatment sessions and
    include details of the history Mr. Imeson recounted about his family and
    childhood, the circumstances leading up to his time at Maryvale and in foster
    care, the alleged sexual assaults, and the three murders that resulted in his
    convictions and imprisonment (which Dr. Smith referred to as the index
    offences). The reports also include a number of comments and opinions, as well
    as Dr. Smiths recommendations for future treatment. According to Dr. Smith, he
    made thematic connections in the reports, which were not present in his
    handwritten notes.

(b)

The Admissibility
Voir Dire

[17]

The
    trial judge held a
voir dire
into the proposed evidence of Dr. Smith,
    who was put forward as a participant expert.

[18]

The
    purpose of the
voir dire
, as identified by the trial judge, was to
    determine: (a) the ability of Dr. Smith to give expert evidence as a
    participant expert; (b) the basis on which the evidence was being offered; and
    (c) the scope of the expert evidence.

[19]

Mr.
    Imesons counsel confirmed that she intended to lead Dr. Smiths evidence,
    including the opinions expressed in his reports, on the questions of liability
    (whether the sexual assaults occurred), causation (whether he suffered harm as
    a result), as well as damages. She also proposed that Dr. Smith would offer
    opinions on four matters extending beyond what was contained in his reports,
    including whether Mr. Imeson had the characteristics and behaviour of a sexual
    assault victim.

[20]

Mr.
    Imesons counsel sought to file Dr. Smiths complete reports in evidence, and
    to have him testify. Alternatively, she proposed to file as business records,
    under s. 35 of the
Evidence Act
, R.S.O. 1990, c. E.23, the reports
    with all of Dr. Smiths opinions redacted. For this purpose, she provided the
    trial judge with a copy of the reports, highlighting the opinions.

[21]

Defence
    counsel opposed the admission of Dr. Smiths opinion evidence on a number of
    grounds.

[22]

They
    asserted that Dr. Smiths opinions went beyond those of a participant expert.

[23]

They
    also argued that Dr. Smiths evidence did not meet the
Mohan
criteria:
    he lacked the necessary training and expertise to provide an opinion on
    childhood sexual abuse and his evidence was not necessary or relevant,
    especially on the issues of causation and liability. They submitted that the
    prejudicial effect of the evidence, including its oath-helping potential,
    outweighed its probative value, such that Dr. Smith should not be permitted to
    testify at all.

[24]

Defence
    counsel also took particular issue with the admission into evidence of Dr.
    Smiths reports. They argued that, as a general rule, parties cannot both file
    a medical report and call the practitioner as a witness. Moreover, in this
    particular case, the reports caused irreparable prejudice to the defendants
    given their oath-helping nature.

[25]

Dr.
    Smith testified in the
voir dire
. He explained his qualifications and
    experience  that he had been a mental health clinician, working in the prison
    system for 18 years. He described his areas of specialty as (1) preparing
    assessments of risk to reoffend for parole board hearings, (2) providing crisis
    response for inmates engaging in suicidal or self-harming behaviours, and (3)
    providing counselling for inmates with trauma. He confirmed that he had
    conducted no research in the field of childhood sexual trauma and abuse.

[26]

Dr.
    Smith acknowledged that his role was not to determine whether what Mr. Imeson
    told him about being abused had occurred in fact, and that in his therapeutic
    role he was willing to accept that what Mr. Imeson told him was the truth.

(c)

The Trial Judges Rulings

[27]

The
    trial judge provided a detailed oral ruling on the admissibility of Dr. Smiths
    expert evidence, and a second oral ruling permitting his reports to be filed in
    evidence.

[28]

After
    noting that the gatekeeper function is particularly important when the jury is
    the fact-finder, the trial judge adverted to the potential for distorting the
    fact-finding process where an expert provides oath-helping evidence.

[29]

She
    concluded that Dr. Smiths credentials and experience qualified him as an
    expert and that expertise as a mental health clinician was necessary, as [w]hether
    the plaintiff has suffered psychological and/or emotional harm is a central
    issue in this civil action for damages for alleged sexual abuse. She stated
    that Dr. Smiths proposed evidence was relevant to that issue and to the
    nature and extent of that harm if any, as that is a factor to be considered by
    the jury in assessing damages.

[30]

The
    trial judge concluded that the probative value of the proposed evidence
    outweighed its prejudicial effect. She acknowledged that the oath-helping
    concern was genuine, and would be addressed with a mid-trial jury instruction
    and in her final instructions.

[31]

The
    trial judge also noted that, as a treating clinician, Dr. Smith was a
    participant expert, whose evidence could be accepted without compliance with r.
    53.03 of the
Rules of Civil Procedure
. She quoted the limitation on
    such evidence articulated in
Westerhof
: that the opinion to be given
    be based on the witnesss observation of or participation in the events at
    issue and that the witness formed the opinion to be given as part of the
    ordinary exercise of his or her skill, knowledge, training and experience while
    observing or participating in such events:
Westerhof
, at para. 60.

[32]

As
    a result, the trial judge permitted Dr. Smith to testify about his
    observations of, impressions formed regarding and treatment provided to the
    plaintiff as set out in the reports prepared by him. She ruled that he was not
    to give opinion evidence as to any other matter, including: (1) whether Mr.
    Imeson would ever get out of prison; (2) whether he fit the characteristics of
    someone who had been sexually abused; and (3) whether he matched the
    characteristics that predatory sex offenders seek out. The exception was that
    Dr. Smith was permitted to give an opinion about the therapy he would have
    recommended had Mr. Imeson not terminated treatment. The trial judge cautioned
    counsel to exercise appropriate caution in their questioning of Dr. Smith to
    abide by her ruling.

[33]

After
    the oral ruling was delivered, Mr. Imesons counsel requested clarification of
    the ruling, including whether Dr. Smith would be permitted to testify that it
    was possible that but for the abuse the first index offence would not have
    occurred. The trial judge confirmed that this evidence could be led on the
    basis that this was an opinion that was formed by Dr. Smith during the course
    of his assessment of and the therapy provided by him.

[34]

The
    trial judge then heard argument on whether Dr. Smiths reports could be filed
    in evidence. She permitted the reports to be filed in their entirety, referring
    to Dr. Smiths status as a participant expert.

[35]

The
    trial judge provided written reasons, dated October 5, 2016, which are largely
    consistent with her oral rulings. In her written reasons, however, she
    described the relevance of Dr. Smiths evidence to the issues in the trial
    somewhat more broadly, at paras. 7 and 8:

Whether [Mr. Imeson] has suffered psychological and/or
    emotional harm is a central issue in this civil action for damages for alleged
    sexual abuse. I consider the proposed evidence of Dr. Smith to be relevant to
    that issue and to the nature and extent of that harm, if any, as those are
    factors among those to be considered by the jury in assessing damages.

The fact that [Mr. Imeson] has
    sought and undergone counselling and therapy may also be considered by the jury
    as relevant to whether or not the sexual abuse alleged occurred.

[36]

In
    her written ruling, the trial judge also confirmed her decision to admit into
    evidence the reports under s. 35 of the
Evidence Act
, as she was
    satisfied that they represented an organized and accurate summary record of
    notes made by [Dr. Smith] during therapy sessions of the history taken from,
    observations made of, and counselling provided to, [Mr. Imeson] by Dr. Smith:
    at para. 20.

(d)

The Expert Evidence at Trial and Midtrial Instructions

[37]

Before
    Dr. Smith testified, the trial judge informed the jury that he was qualified to
    provide expert opinion with respect to certain issues. Dr. Smith testified
    that he had provided therapy to Mr. Imeson while he was in prison, in his
    capacity as a mental health clinician, and he described his qualifications.

[38]

The
    trial judge gave an instruction, after Dr. Smiths qualifications were
    presented and before he embarked on the substance of his evidence, in which she
    cautioned the jury that she had determined that Dr. Smiths evidence was
    admissible to provide certain opinions, and that any statements Mr. Imeson made
    to Dr. Smith while taking a history or in the course of therapy were not to be
    taken as proof that the contents of the statements were true, but only that
    they were made. (I refer to this as the hearsay caution.) She also directed
    that the jury be provided with copies of Dr. Smiths reports, which were marked
    together as a trial exhibit.

[39]

It
    is unnecessary for the purpose of this appeal to set out in detail the
    substantive evidence provided by Dr. Smith. It is sufficient to highlight three
    opinions that were elicited from him. Each was taken from the reports that
    were also filed in evidence.

[40]

First,
    at the invitation of Mr. Imesons counsel, Dr. Smith read out a passage in
    which he described the problems typical of survivors of childhood sexual abuse.

[41]

Second,
    Dr. Smith read out this excerpt from one of his reports:

Mr. Imesons experience of
    childhood abandonment and abuse have had a strong negative impact on: (a) his
    ability to regulate emotional responses that occur when he encounters situations
    that, in some way, recall aspects of abandonment or abuse, and (b) his ability
    to establish emotionally satisfying relationships with others.

[42]

Dr.
    Smith was asked to provide examples of the negative impacts on Mr. Imesons
    ability to regulate his emotions and to establish relationships with others
    that flowed from his abandonment and abuse. Dr. Smith referred to Mr. Imesons suicide
    attempt in response to the closing of the institutions rehabilitation unit. He
    mentioned Mr. Imesons difficult relationship with his mother, his interactions
    with Tony Doe, the development of his relationship with Father Horwath, and
    his relationship with his foster parents. He recounted that Mr. Imeson used
    violence in the group home to gain respect, and then became involved in a
    culture of drug abuse and impersonal promiscuous sex that, compared to what he
    had experienced in his past, bolstered his self-esteem.

[43]

Third,
    Dr. Smith was invited to read out the following opinion:

It is entirely possible that in
    his index offence Mr. Imeson awoke from a drug and alcohol fueled blackout to
    discover his victim performing fellatio on him and he re-experienced the sense
    of betrayal and rage that he felt toward his earlier abuser, and then acted
    with disinhibited, lethal violence.

[44]

When
    asked to explain this in lay terms, Dr. Smith said that Mr. Imeson, after
    having been sexually abused, had a sense of rage at his abuser and also onto
    himself. When he awoke and found it was happening again, it reawakened his
    sense of rage about having his boundaries betrayed and led to a release of
    aggression. There was a loss of conscious control over his behaviour and
    dissociation. Dr. Smith described how children who have experienced sexual
    abuse often talk about leaving their bodies while the abuse is taking place.

[45]

Dr.
    Smith was asked whether Mr. Imesons unconscious belief systems related back to
    his abuse as a child. At that point, the trial judge cautioned that Dr. Smith
    cannot speak to causation
per se
. All he can speak to is his observations
    and assessments. Counsel then asked another question seeking to relate Mr.
    Imesons distorted beliefs and attitudes to his childhood abuse.

[46]

Defence
    counsel objected that Mr. Imesons counsel had led evidence from Dr. Smith that
    was outside the scope of the trial judges admissibility ruling because it
    dealt with the abuse having
caused
certain results. After some
    discussion in the absence of the jury, including the trial judge asking whether
    defence counsel was moving for a mistrial (they declined), the trial judge
    noted that the way the questions were being asked was driving a conclusion
    that there [was] a causal connection in which Dr. Smith ha[d] become invested
    that [was] based upon an acceptance of the veracity of what he was told. She
    observed that the main purpose of the admission of Dr. Smiths evidence was to
    describe his assessment and treatment of Mr. Imeson, not to bootstrap Mr.
    Imesons testimony by saying he believes him.

[47]

When
    the jury returned, they were not instructed to disregard any part of Dr.
    Smiths evidence, nor did the trial judge provide a direction respecting the
    proper use of the evidence. Rather, she reminded the jury of her earlier
    hearsay caution. Dr. Smith did not answer the question to which objection had
    been taken.

[48]

In
    cross-examination, Dr. Smith confirmed that it was not his role to determine if
    the trauma happened, but only to treat what he was being told. He also
    confirmed that, in forming his opinions, he only had the information he was
    given by Mr. Imeson, and that he did not have records from his school, his
    group homes, Maryvale, his hospital records, or his Childrens Aid files. Nor
    did he speak with any of Mr. Imesons family members.

(e)

The Jury Charge

[49]

In
    the jury charge, the trial judge described Dr. Smith as an expert witness who
    was entitled to give opinion evidence. She repeated the hearsay caution and
    instructed the jury that what Mr. Imeson told Dr. Smith should be accepted  only
    to show the information upon which the mental health clinician based his
    opinion.

[50]

Later
    in her instructions, after she identified the question for the jury to
    determine as whether any of the sexual assaults alleged took place, the trial
    judge gave the following direction:

The plaintiff must prove, on the
    balance of probabilities, that it was Tony [Doe] and/or Father Horwath who
    sexually assaulted him. You heard his evidence about this issue. You also heard
    circumstantial evidence related to the opportunity each of Tony [Doe] and
    Father Horwath had or did not have to sexually assault the plaintiff. You also
    heard evidence about the plaintiffs behaviour while at Maryvale and following,
including the observations and opinions expressed by Dr.
    Smith
. [Emphasis added.]

[51]

In
    her review of the evidence, the trial judge did not refer to any evidence from
    Dr. Smith, or opinions that he had expressed, nor did she mention the evidence
    of Dr. Smith when she provided instructions about damages.

[52]

Objection
    was taken during the pre-charge conference to the trial judges instruction
    that the jury could consider Dr. Smiths observations and opinions in
    determining whether the sexual assaults had occurred. Defence counsel specifically
    objected to the inclusion of any reference to Dr. Smiths evidence in relation
    to whether or not the plaintiff had been sexually assaulted and argued that no
    mention should be made of Dr. Smiths evidence in relation to that question. This
    reference, however, was not removed, and no change was made to this part of the
    charge before it was delivered.

C.

ANalysis

[53]

A
    trial judges decision with respect to the admissibility of expert evidence is
    entitled to deference and reversible on appeal only if there is an error in
    principle or a material misapprehension of the evidence, or if the decision is
    unreasonable: see
R. v. Abbey
, 2009 ONCA 624, 97 O.R. (3d) 330, at
    para. 97, leave to appeal refused, [2010] S.C.C.A. No. 125;
R. v. Shafia
,
    2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 248, leave to appeal refused, [2017]
    S.C.C.A. No. 17.

[54]

As
    I will explain, I am of the view that the trial judge erred in admitting Dr.
    Smiths opinion evidence on the issue of liability (whether the sexual assaults
    occurred) and causation (whether Mr. Imeson suffered any harm as a result).

(1)

Dr. Smiths Role as a Participant Expert

(a)

Submissions

[55]

The
    appellant says that the trial judge erred by permitting Dr. Smith to provide
    expert opinion evidence as a participant expert. The appellant submits that, at
    most (and though unnecessary), Dr. Smith was properly qualified only to opine
    on Mr. Imesons mental health status at the time of his assessments and the
    appropriate course of treatment.

[56]

The
    respondent, for his part, submits that the trial judge properly identified Dr.
    Smith as a participant expert and properly set limits on his testimony in her
    ruling.

(b)

Discussion

[57]

As
    explained above, in her oral ruling on the
voir dire
, the trial judge recognized
    the limited role of a participant expert under
Westerhof
. She ruled
    that Dr. Smith was permitted to testify about his observations of, impressions
    formed regarding and treatment provided to the plaintiff
as
    set out in the reports prepared by him
without having to comply with
    Rule 53.03 but not anything beyond the reports (other than what therapy he
    would have recommended for Mr. Imeson). She also allowed the reports to be
    tendered into evidence.

[58]

As
    the trial judge recognized, great care was required to ensure that Dr. Smith
    did not provide any opinion evidence that exceeded the scope of proper opinions
    to be offered by a participant expert. Unfortunately, she permitted that to
    happen by admitting Dr. Smiths unredacted reports into evidence and permitting
    him to testify about anything that was contained in the reports.

[59]

In
    considering the proper scope of Dr. Smiths evidence as a participant expert,
    it is important to remember how participant experts differ from litigation experts.

[60]

In
    the civil litigation context, a litigation expert is subject to r. 53.03. This
    rule requires, among other things, an expert report that sets out the experts
    opinions, as well as an acknowledgment of the experts duty. Typically, an
    expert report provides a roadmap of the anticipated testimony and specific
    limits may be placed on certain areas of testimony:
Bruff-Murphy (Litigation
    guardian of) v. Gunawardena
, 2017 ONCA 502, 138 O.R. (3d) 584, at para.
    62, leave to appeal refused, [2017] S.C.C.A. No. 343. The experts report will
    provide the framework for discussion about the proper scope of the experts
    testimony.

[61]

In
    contrast, under
Westerhof
, participant experts may give opinion
    evidence without complying with r. 53.03. Typically, any opinions that are
    sought to be introduced are found in the clinicians clinical notes and
    records, or in reports prepared for the purpose of consultation and treatment.

[62]

In
Westerhof
, this court explained the proper role of a participant
    witness, at para. 60, as follows:

[A] witness with special skill, knowledge, training, or
    experience who has not been engaged by or on behalf of a party to the
    litigation may give opinion evidence for the truth of its contents without
    complying with rule 53.03 where:

·

the opinion to be given is based on the witness's observation of
    or participation in the events at issue; and

·

the witness formed the opinion to be given as part of the
    ordinary exercise of his or her skill, knowledge, training and experience while
    observing or participating in such events.

[63]

If
    participant experts proffer opinion evidence extending beyond these limits,
    they must comply with r. 53.03 with respect to the portion of their opinions
    extending beyond those limits:
Westerhof
, at para. 63. In acting as a
    gatekeeper, trial judges have the important task of ensuring that participant
    experts do not exceed their proper role or, if they do, that there is
    compliance with r. 53.03.

[64]

As
    indicated earlier, among other things, in his evidence Dr. Smith:

§

identified the problems typical of survivors of childhood sexual
    abuse;

§

testified about the negative impacts that Mr. Imesons
    experiences of childhood abandonment and abuse had on his ability to regulate
    emotional responses and his ability to establish emotionally satisfying
    relationships, and he provided examples; and

§

expressed the opinion that it was entirely possible that Mr.
    Imesons first murder occurred when he awoke from a blackout to discover his
    victim performing fellatio on him, and re-experiencing the sense of betrayal
    and rage he felt toward his earlier abuser, he acted with disinhibited lethal
    violence.

[65]

This
    opinion evidence from Dr. Smiths reports was repeated in his oral evidence.
    This evidence went to the issues of whether the sexual assaults occurred and
    whether Mr. Imeson suffered any harm as a result.

[66]

The
    difficulty in this case was that there was no expert report
per se
, nor were there any clinical notes or records
.
Dr. Smiths opinions had to be gleaned from the reports he had prepared based
    on the handwritten treatment notes he had destroyed. Mr. Imesons counsel also
    identified additional opinions that she proposed to elicit from Dr. Smith that
    were outside the scope of the reports.

[67]

During
    the
voir dire,
Mr. Imesons counsel provided a highlighted version of
    the reports, identifying the opinions he appeared to express. There was,
    however, no review of the specific opinions, or of the contents of the reports,
    during the admissibility
voir dire.


[68]

Instead,
    after ruling that Dr. Smith would be able to testify about his observations
    of, impressions formed regarding and treatment provided to the plaintiff as set
    out in the reports prepared by him, the trial judge permitted him to testify
    about anything that was contained in the reports, without exception.

[69]

The
    trial judges attention was firmly on ensuring that Dr. Smith did not offer any
    opinions beyond what was contained in his reports (apart from the one discrete
    issue about treatment). She did not focus on the opinions that were in the reports,
    and consider whether any or all of the contents of the reports exceeded the
    scope of proper opinions to be offered by a participant expert.

[70]

I
    am prepared to accept that it was appropriate for Dr. Smith in his role as a
    participant expert to provide evidence about Mr. Imesons mental condition, the
    treatment that he provided, Mr. Imesons response to treatment, and the therapy
    he would have recommended had Mr. Imeson not terminated treatment. As the trial
    judge recognized, such evidence goes to the question of whether Mr. Imeson
    suffered harm. However, the fact that Dr. Smith might properly have given evidence
    on those matters would not make his unredacted reports admissible, and allow
    him to testify about everything that was contained in his reports.

[71]

In
    the circumstances of this case, it was particularly important to consider the
    nature of the various opinions proffered by Dr. Smith in his reports and the
    purpose for which they were being led before permitting Dr. Smith to testify as
    a participant expert witness. As I have noted, Dr. Smith completed his reports (except
    for the one dated February 17, 2015) approximately a year after Mr. Imeson had
    discontinued his therapy. According to Dr. Smith, he made thematic connections
    in the reports, which were not present in his handwritten notes. At the time,
    he knew that Mr. Imeson had commenced litigation. In these circumstances, it is
    difficult to imagine why Mr. Imeson would have requested that Dr. Smith prepare
    the reports other than for the purpose of litigation. In my view, these
    circumstances blurred Dr. Smiths role.

[72]

Applying
Westerhof
in the circumstances of this case, Dr. Smiths opinion
    evidence included evidence falling outside the proper scope of evidence
    tendered by a participant expert.

[73]

As
Westerhof
instructs, an opinion offered by a participant expert must
    be given as part of the ordinary exercise of the witnesss skill, knowledge,
    training and experience. Here, any opinion offered by Dr. Smith that sought to
    draw a causal link between the alleged sexual assaults and Mr. Imesons later
    behaviour could not have been based on his skill, knowledge, training and
    experience while he was involved in Mr. Imesons treatment. Rather, Dr. Smith
    testified that, in his therapeutic role, he accepted Mr. Imesons statements
    that he had been abused as true, and he confirmed that it was not his role to
    determine if the trauma happened, but only to trust what he was being told.

[74]

Westerhof
also instructs that the opinion given by a participant expert must be based on
    the witnesss observation of or participation in the events at issue. Here, Dr.
    Smith testified as to the problems typical of survivors of childhood sexual
    abuse  evidence going to the issue of whether the assaults occurred. His
    evidence about survivors as a group was not based on his observation of, or
    treatment of, Mr. Imeson, and thus went beyond the proper scope of any opinion
    he could provide as a participant expert.

[75]

I
    conclude that, despite the trial judges recognition that the role of a
    participant expert is restricted, she permitted Dr. Smith to exceed his proper
    role by allowing him to testify about anything contained in his reports, and in
    admitting the reports into evidence, without first carefully examining what
    opinions were included in the reports, and the purpose for which it was
    proposed that the jury consider such opinions.

[76]

In
    light of my disposition of this first issue, strictly speaking there is no need
    to consider the trial judges admissibility analysis under
Mohan
as it
    relates to Dr. Smiths opinion evidence going to the issues of liability and
    causation. However, given that I would send this matter back for a retrial, it
    may be helpful to discuss the appellants
Mohan/White Burgess
arguments as they relate to that evidence. I note that
Westerhof,
at
    para. 63,

recognizes that the court may permit a treating clinician
    who complies with r. 53.03 to provide evidence extending beyond the bounds
    permitted for opinion evidence of a participant expert, subject to the courts
    exercise of its gatekeeping role.

[77]

There
    is also the matter of Dr. Smiths evidence about Mr. Imesons mental condition,
    the treatment that he provided, Mr. Imesons response to treatment, and
    recommended future treatment. As I have said, I accept that it was appropriate
    for Dr. Smith to provide evidence on those points in his capacity as a
    participant expert. On appeal, the appellant did not take serious issue with
    the admission of that evidence, although he suggested it may have been
    unnecessary. As I would send this matter back for a re-trial, I prefer to leave
    the question of the admissibility of that evidence under
Mohan/White
    Burgess
for the trial judge on the re-trial, if the respondent seeks to
    have Dr. Smiths evidence admitted on that point.

(2)

The
Mohan/White Burgess
Framework

(a)

Submissions

[78]

The
    appellant says that Dr. Smiths evidence failed to meet the threshold
    requirements to be admissible under
Mohan.
In particular, the
    appellant argues that Dr. Smiths expert evidence failed to meet the threshold
    requirements of necessity and the need for a properly qualified expert. The
    case turned on the respondents credibility, and the appellant argues that if
    the oath-helping evidence of Dr. Smith had been excluded, the jury would
    never have concluded that the respondent was sexually assaulted by Tony Doe.

[79]

The
    respondent asserts that, applying
Mohan/White Burgess
, there is no
    basis to interfere with the trial judges decision to admit Dr. Smiths opinion
    evidence, including his reports. This decision was an exercise of discretion,
    entitled to deference, and free of any error in principle. The respondent
    asserts that Dr. Smiths opinion evidence was relevant, necessary, and properly
    admitted at trial on the question of whether the sexual assaults occurred, as
    well as on causation and damages. He also contends that the trial judge
    appropriately addressed the oath-helping potential of such evidence by
    providing the hearsay caution and setting limits on Dr. Smiths testimony.

(b)

Discussion

[80]

There
    are two steps in assessing the admissibility of expert evidence under the
Mohan/White
    Burgess
framework:
White Burgess,
at paras. 23-24
.


[81]

The
    first step in determining admissibility is for the court to assess whether the
    proposed expert evidence meets the threshold requirements that the evidence is
    (i) logically relevant; (ii) necessary to assist the trier of fact; (iii) not
    subject to any other exclusionary rule; and (iv) proffered by a properly
    qualified expert who is willing and able to provide evidence that is impartial,
    independent, and unbiased: see
White Burgess
, at paras. 23, 53;
Mohan
,
    pp. 20-25.
[2]

[82]

If
    the proponent of the evidence establishes the threshold for admissibility, the second
    discretionary gatekeeping step is for the trial judge to determine whether the potential
    benefits of admitting the evidence outweigh its potential risks to the trial
    process:
White Burgess
, at para. 24.

[83]

The
    trial judge was correct that participant expert witnesses are subject to the
Mohan
/
White
    Burgess
test for the admissibility of expert evidence:
Westerhof
,
    at para. 64. In my view, on a proper application of the
Mohan/White Burgess
framework, Dr. Smiths opinion evidence going to the issues of liability
    and causation should have been excluded.

[84]

The
    first problem, as I see it, is that the admissibility criteria were not applied
    to the specific opinions it was proposed that Dr. Smith would provide. As
    Doherty J.A. explained in
Abbey
, the first step in determining
    admissibility of an experts opinion evidence is to identify the substance and
    scope of an experts opinion. He cautioned, at para. 62, that this first step
    is essential:

The admissibility inquiry is not conducted in a vacuum. Before
    deciding admissibility, a trial judge must determine the nature and scope of
    the proposed expert evidence. In doing so, the trial judge sets not only the
    boundaries of the proposed expert evidence but also, if necessary, the language
    in which the expert's opinion may be proffered so as to minimize any potential
    harm to the trial process.
A cautious delineation of
    the scope of the proposed expert evidence and strict adherence to those
    boundaries, if the evidence is admitted, are essential.
[Emphasis
    added.]

[85]

In
    this case, the trial judge did not consider the specific opinions to be proffered
    by Dr. Smith, other than the four opinions that were not contained in his
    reports. The
Mohan/White Burgess
analysis ought to have been applied
    with the particular opinions in mind, as well as their intended use.

[86]

Turning to the specific threshold criteria, I
    agree with the respondent that Dr. Smiths evidence was not necessary to the
    central liability question  whether the sexual assaults occurred. That issue
    depended on an assessment of credibility. There was no need for expert evidence
    to help the jury decide whether Mr. Imeson was credible. Indeed, as I have
    explained, Dr. Smiths observations related to whether the assaults occurred,
    and the connections he drew between Mr. Imesons conduct and the sexual abuse,
    were not premised on Dr. Smiths expertise. Rather, he readily acknowledged
    that his role was not to determine whether the abuse actually occurred, and
    that, in his therapeutic role, he was willing to accept what Mr. Imeson told
    him as the truth.

[87]

The respondent contends that Dr. Smiths opinion
    linking Mr. Imesons subsequent conduct to his sexual abuse was essential
    evidence for the jury to consider in determining whether the abuse he testified
    about had occurred. His counsel points to
R. v. Llorenz
(2000)
, 145 C.C.C. (3d) 535 (Ont. C.A.),
    leave to appeal abandoned, [2000] S.C.C.A. No. 335
, where this
    court accepted, at para. 35, that in some cases, expert evidence may be
    admitted to show that certain behaviours, symptoms, or psychological conditions
    could be consistent with sexual abuse.

[88]

In my view, it cannot be said that Dr. Smiths
    evidence linking Mr. Imesons subsequent conduct to the alleged sexual abuse was
    essential to assist the jury since Dr. Smith was not even qualified to give
    such evidence. While he had the qualifications of a mental health clinician
    (the expertise that was accepted by the trial judge), his qualifications were
    not considered in connection with the opinions sought to be elicited from him. Dr.
    Smith was permitted to give opinion evidence related to the issue of whether
    the alleged abuse occurred, even though none of Dr. Smiths qualifications
    demonstrated expertise in sexual abuse.

[89]

Dr. Smith estimated that between 25% and 30% of
    the inmates he saw had suffered from childhood sexual abuse. However, the fact
    that Dr. Smith understood that many of his patients had suffered from childhood
    sexual abuse does not, of course, make him an expert in the field. While Dr.
    Smith had expertise in treating prisoners with trauma, he did not have particular
    expertise in childhood sexual abuse. Accordingly, Dr. Smith was  to offer an opinion about the problems typical of survivors of
    sexual abuse, or as to the relationship between the alleged sexual assaults and
    Mr. Imesons subsequent difficulties, including the commission of the first
    murder.

[90]

In conclusion, I agree with the respondent that
    Dr. Smiths opinion evidence that was tendered on the issues of liability and
    causation did not meet the threshold criteria to be admissible as expert
    evidence, as the evidence was not necessary and Dr. Smith did not have the required
    expertise. As that decides the threshold question, I need not deal with other aspects
    of the threshold criteria. In particular, I note that the question of Dr.
    Smiths impartiality in relation to the opinions he offered was not argued on
    appeal and I will not therefore address that issue.

[91]

While unnecessary to go further, I would also
    comment briefly on the trial judges gatekeeping role under the second part of the
Mohan/White Burgess
framework.

[92]

Under the second part of the
Mohan/White Burgess
framework, the trial judge must assess the benefits of admitting the evidence
    against its potential risks. The cost-benefit analysis to be undertaken as part
    of the trial judges role is a specific application of the courts general
    residual discretion to exclude evidence whose prejudicial effect is greater
    than its probative value:
Bruff-Murphy
, at para. 65.

[93]

In this case,
the admission of Dr.
    Smiths opinion evidence carried a number of risks to the trial process.

[94]

One such risk was that the jury might conclude
    that Dr. Smiths testimony of what he was told by Mr. Imeson was proof of the
    truth of Mr. Imesons narrative. The trial judge addressed this risk with the
    hearsay caution.

[95]

The admission of Dr. Smiths opinion evidence
    presented other risks to the trial process.

[96]

First, there was the danger that Dr. Smiths
    evidence would usurp the jurys function of deciding credibility. As noted by
    the Supreme Court in
R. v. Marquard
, [1993] 4
    S.C.R. 223, at para. 49, credibility is a notoriously difficult problem, and
    the experts opinion may be all too readily accepted by a frustrated jury as a
    convenient basis upon which to resolve its difficulties.

[97]

Second, the jury had before it, in Dr. Smiths
    unedited and unredacted reports, a great deal of material that was irrelevant
    to issues in the proceedings, but that contained tremendous oath-helping
    potential. For example, Dr. Smith
once referred to an incident where Mr.
    Imeson admitted to having taken another inmates medication. Mr. Imesons explanation,
    according to Dr. Smiths report, was that he came forward with the information
    because he had committed himself to honesty.

[98]

To her credit, the trial judge acknowledged that the oath-helping
    concern was genuine, but determined that it could be addressed through her
    mid-trial jury instruction and in her final instructions. She did not, however,
    weigh all the risks I have identified
against the possible
    benefits of admitting the evidence, or consider how the risks might be
    mitigated other than through the hearsay caution. In my view, the hearsay
    caution was insufficient to address the various risks present in this case,
    including the very real risk of oath-helping.

[99]

As this court noted in
Llorenz
, oath-helping evidence should not be admitted simply because it is
    led for another purpose. A court must still weigh the probative value of the
    evidence against its prejudicial effect: In cases which turn on the question
    of which one of two witnesses is telling the truth, there is the danger that a
    jury may attach significant weight to the oath-helping aspect of the evidence
    of an expert, even if instructed to do otherwise:
Llorenz
, at para. 32.

[100]

In conclusion, Dr. Smiths opinion evidence going to the issues of
    liability and causation not only
exceeded the scope of proper opinions
    to be offered by a participant expert,
but also failed to
    satisfy the
Mohan/White Burgess
test for
    admissibility.

(3)

Effect of the Trial Judges Error

[101]

The final issue concerns
    the effect of the trial judges error in admitting Dr. Smiths evidence on the
    issues of whether the assaults occurred and whether Mr. Imeson suffered any
    harm as a result.

[102]

The appellant
    contends that the admission of Dr. Smiths opinion evidence on those issues was
    a fatal error that would require a new trial. The respondent does not really
    argue to the contrary.

[103]

The respondents
    success at trial was dependent on the jurys having accepted that Mr. Imeson had
    been sexually abused by Tony Doe and that the abuse caused him harm. Dr.
    Smiths evidence ought not to have been admitted on those issues; however, the
    jury was specifically instructed to consider his evidence together with all of
    the other evidence in determining whether the sexual assaults occurred. The
    only proper disposition, in my view, is to allow the appeal and to direct a new
    trial.

D.

Disposition

[104]

For these
    reasons, I would allow the appeal and direct a new trial involving only the
    parties to this appeal.

[105]

I would order the
    respondent to pay costs of the appeal in the sum of $50,000, inclusive of
    disbursements and applicable taxes, the amount agreed between the parties. I
    would reserve the costs in the court below to the judge hearing the re-trial.

Released: November 7, 2018

K. van Rensburg
    J.A.

I agree Gloria
    Epstein J.A.

I agree David Brown
    J.A.





[1]

I note that one report, dated February 17, 2015, was prepared
    a year earlier while Mr. Imesons therapy with Dr. Smith was still ongoing.
    That report does not contain any of the opinions related to liability or
    causation that are at issue on this appeal.



[2]
In the case of an opinion based on novel or contested science or science used
    for a novel purpose, which is not the case here, there is an additional
    requirement: the proponent must establish the reliability of the underlying
    science for that purpose:
White Burgess
, at para. 23.


