Brake-Patten v. Gallant, 2012 NLCA 23

Date: 20120409 Docket: 10/11 Citation: Brake-Patten v. Gallant , 2012 NLCA 23 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : DEBBIE BRAKE-PATTEN APPELLANT AND : ABRAHAM GALLANT RESPONDENT Coram: Green C.J.N.L., White and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland & Labrador, Trial Division (General), 200301T4312 Appeal Heard: April 4 and April 11, 2011 Judgment Rendered: April 9, 2012 Reasons for Judgment by Hoegg J.A. Concurred in by Green C.J.N.L. and White J.A. Counsel for the Appellant: David Hurley Q.C. and Andrew A. Fitzgerald Counsel for the Respondent: Valerie A. Hynes and John Drover Hoegg J.A:

[1] This appeal concerns whether the appellant chiropractor, Dr. Debbie Brake-Patten, is liable for injuries the respondent Mr.Abraham Gallant suffered following chiropractic treatment he received from her. BACKGROUND [2] Shortly after 3 p.m. on Monday, December 10, 2001, Mr. Gallant attended on Dr. Brake-Patten at the Bay St. GeorgeChiropractic Clinic in Stephenville, NL, with a complaint of shoulder and neck pain he believed resulted from hanging outdoorChristmas lights. [3] To relieve Mr. Gallant’s discomfort, Dr.

Brake-Patten performed cervical manipulation, which is a high velocity lowamplitude thrust to a specific area of the cervical spine. Mr. Gallant experienced pain directly afterwards, for which Dr. Brake-Pattengave him an ice pack. Mr. Gallant had consulted with Dr. Brake-Patten on a sporadic basis for minor back and neck complaints in theprevious six or seven years. It was not unusual for him to have neck pain following chiropractic treatment. [4] Mr. Gallant went directly home after the consultation. He developed lightheadedness and a feeling that something was notright, and he was unable to eat supper.

His condition worsened, in that his hearing was muffled, he was dizzy and off-balance, and hestaggered when he walked. He sought medical attention around 9:30 that evening at the Sir Thomas Roddick Hospital in Stephenville. After assessment, he was advised to go home and rest and to return later in the week to have his ears syringed. Upon leaving the hospitalhe began to vomit. This continued until the following evening. His off-balance feeling, and the ringing and hearing reduction in his rightear persisted. [5] At the time of trial, Mr.

Gallant was still suffering profound hearing loss and tinnitus in his right ear which have beendiagnosed as permanent. Although improved, his balance remained compromised. He was disabled from his supervisory job at thenewsprint mill. [6] Mr. Gallant filed suit against Dr. Brake-Patten, alleging that she had failed to inform him of the risks of cervical manipulationwhich caused his injury and that she was liable to him for his ensuing damages. Mr. Gallant did not allege that Dr. Brake-Pattenmanipulated his cervical spine in a negligent manner.

Rather, his position was that the procedure itself, even when properly performed,is risky, and did in fact cause his injury. He maintains that if Dr. Brake-Patten had properly informed him of its risks, he would not havehad the cervical manipulation. The twelve-day trial concerned liability only. In addition to the testimony of the plaintiff and defendant,the court heard from the plaintiff’s wife and expert medical and chiropractic witnesses. [7] In his written judgment, Gallant v. Patten, 2010 NLTD 1, 292 Nfld. & P.E.I.R. 279, the trial judge found that Mr.

Gallant’sinjuries were caused by the cervical manipulation, and that Dr. Brake-Patten was negligent because she had not properly informed himof the risks of the procedure and that if she had, he would not have consented to it. ISSUES ON APPEAL [8] Dr. Brake-Patten appeals the trial judge’s finding that the cervical manipulation caused Mr. Gallant’s injury, and that hewould not have consented to the treatment had he been properly informed of its risks.

She also argues that the trial judge committedlegal errors by admitting biased evidence on the causation issue and by not providing reasons for this part of his decision. [9] Dr. Brake-Patten has not appealed the trial judge’s finding that she was negligent by failing to obtain Mr. Gallant’s informedconsent to her treatment. [10] A medical professional may be held liable in tort when that professional is negligent in his or her duty to provide theinformation necessary for the patient to give his or her informed consent to a medical procedure and the medical procedure actuallycaused the injury.

These cases are referred to as informed consent cases. [11] Every professional negligence case involves proving that the defendant has breached a duty of care owed to the plaintiff andthat the plaintiff has suffered damage which was caused by the defendant’s breach. In this case, Mr. Gallant’s causation burdeninvolved: 1) proving that Dr. Brake-Patten’s manipulation of his cervical spine was the mechanism which actually caused his injury; and2) proving that he would not have consented to the cervical manipulation if he had been properly informed of its risks. CAUSATION: Did the cervical manipulation cause Mr.

Gallant’s injury? The Law [12] Causation in law is an expression of the relationship that must be found to exist between the tortious act of the defendant andthe injury to the plaintiff in order to justify the defendant compensating the plaintiff. It is established when a plaintiff proves, on abalance of probabilities, that his or her injury was caused or contributed to by the defendant. (Snell v. Farrell, (SCC),[1990] 2 S.C.R. 311 at 326-327, and Cleary v.

Courtney, 2010 NLCA 46.) In most cases, a plaintiff proves causation by establishingthat “but for” the tortious conduct of the defendant, the plaintiff’s injury would not have occurred. (Snell; Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458; Resurfice v.

Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333; and Cleary.) [13] An exception arises when a defendant breaches a duty of care owed to a plaintiff and thereby exposes that plaintiff to anunreasonable risk of injury which the plaintiff has actually sustained, and it is impossible for the plaintiff to prove causation on the “butfor” test due to factors outside of his or her control but within the control of the defendant.

In these exceptional circumstances, the lawpermits a plaintiff to use the “material contribution” test to prove causation, for the reason that it would offend basic notions of fairnessand justice to deny liability. (Athey and Hanke.) [14] Determination of causation is “essentially a practical question of fact which can best be answered by ordinary common sense”.

( Snell at 328, citing Alphacell Ltd. v. Woodward , [1972] 2 All E.R. 475 at 490 .) The plaintiff always has the burden of proving the necessary causal connection between his or her injury and the defendant’s conduct. However, the law does not require that causation be established with certainty.

Causation is established if a plaintiff proves, on the evidence, that it is more likely than not that the defendant caused the plaintiff’s injury. ( Snell at 328 – 330.) [ 15 ] A trial court can take a robust and pragmatic approach to the evidence, and may draw inferences of causation even if positive or scientific proof of causation has not been adduced. ( Snell at 330; and Athey at paragraph 16 .) Whether an inference is or is not drawn is a matter for a trial judge to decide upon considering and weighing the evidence.

Where there is evidence supporting causation, and a defendant has not adduced contrary evidence, the defendant runs the risk of the court drawing an inference adverse to the defendant’s position. ( Snell , at 329-330.) A robust and pragmatic approach to the evidence is a way of considering the evidence. It is not to be confused with speculation and conjecture, which are concepts not based on evidence. Analysis [ 16 ] Dr. Brake-Patten argues that the trial judge erred in concluding that her manipulation of Mr. Gallant’s cervical spine caused his injury.

She says that the trial judge relied on speculation and conjecture in reaching his conclusion and also that he committed numerous factual errors and/or misdirected himself as to the evidence to support his conclusion. [ 17 ] To succeed in her appeal on this issue, Dr. Brake-Patten must demonstrate that the trial judge either misstated the law, or made palpable and overriding errors in his appreciation of the evidence or his application of the law to the facts supporting his finding that the manipulation of Mr. Gallant’s cervical spine caused his injury. [ 18 ] Dr.

Brake-Patten argues that the trial judge misapprehended the evidence respecting whether a viral-initiated hearing loss would have been conductive in nature. At paragraph 120 of his decision, the trial judge stated that Doctors Cron and Batten had opined that a viral-initiated hearing loss should have been a conductive hearing loss. [ 19 ] The uncontroverted expert evidence was that viral labyrinthitis causes sensorineural, not conductive, hearing loss. Therefore, the trial judge’s statement is incorrect. Mr.

Gallant concedes this mistake. [ 20 ] The appellant also argues that the trial judge’s statement at paragraph 110 that the expert evidence was that Mr. Gallant’s hearing loss should have manifested bilaterally if its cause were viral is factually wrong and unsupported by the evidence. I do not agree. Dr.

Stewart’s report of September 15, 2008, reads: “Patients with inflammation-related sensorineural hearing loss complain of a slowly progressive hearing loss which is bilateral in about 80% of cases.” This evidence was confirmed by the doctor in his trial testimony, and is supportive of the trial judge’s statement that a viral-initiated hearing loss should have manifested bilaterally because the probabilities of hearing loss manifesting bilaterally favour this conclusion. Accordingly, the trial judge cannot be said to have erred in this respect. [ 21 ] Dr.

Brake-Patten also alleges that the trial judge misapprehended the extent to which people who suffer from viral labyrinthitis recover their hearing after treatment with steroidal medication. Counsel refers to the trial judge’s comments at paragraph 110 to the effect that if the cause of Mr. Gallant’s hearing loss were viral it should have been subsiding and responding to medication by the time he consulted with Dr.

Swannie on January 10, 2002. [ 22 ] The expert evidence established that of patients who suffer sudden sensorineural deafness, one third will recover, one third will regain usable hearing and one third will have no hearing recovery. This evidence supports the probability that Mr. Gallant’s hearing loss would be recovering had he been prescribed steroidal medication on a timely basis. It would still be possible that Mr. Gallant could have been in the group of one-third which does not recover at all, in which case he would not have been recovering at the time of Dr.

Swannie’s consult, but the probability is that he would have been recovering. Consequently, it was open to the trial judge to find it was more likely than not that Mr. Gallant’s hearing ought to have been improving by the time he consulted Dr. Swannie if Mr. Gallant had been prescribed steroidal medication. It was a factor that the trial judge was entitled to consider and rely on in his reasoning process. However, his finding that Mr. Gallant’s condition ought to have been responding to the prescribed medication by the time he consulted with Dr. Swannie cannot be supported by the evidence because Mr.

Gallant was not prescribed steroidal medication. Mr. Gallant was prescribed antibiotics, which the evidence establishes have no effect on recovery of viral labyrinthitis. Accordingly, although the trial judge’s characterization of the effect of evidence respecting the steroid medication was correct, he erred in his assessment of the effect of the antibiotic medication on Mr. Gallant’s situation. [ 23 ] Dr. Brake-Patten also argues that the trial judge did not give sufficient consideration to certain questions raised by Dr. King. Dr. King initially provided expert opinion that the cause of Mr.

Gallant’s injury was “not an ischematic event involving his vestibular apparatus” and that the chiropractic manipulation did not cause his illness. He supported this view on the bases that Mr. Gallant did not suffer acute pain at the time of the manipulations and that there was no radiographical evidence of vertebral dissection. Dr. King did not express an opinion that the cause was viral. Rather, he stated he believed Mr. Gallant had an idiopathic sudden sensory neural hearing loss, and suggested that a viral cause was equally as plausible an explanation for Mr. Gallant’s injury as a vascular cause. Dr.

King conceded in his second report and in his trial evidence that chiropractic manipulation could have caused Mr. Gallant’s injury. However, he continued to dispute the conclusiveness of the plaintiff’s vascular theory for the reason that there was no radiological evidence supporting it, and maintained that Mr. Gallant could not prove on a balance of probabilities that the cause of his injury was vascular. In addition to the lack of radiological proof that Mr. Gallant suffered a vascular event, Dr. King also expressed the opinion that the delay between Mr.

Gallant’s chiropractic treatment and the onset of his symptoms was too long to support Mr. Gallant’s causation theory. Dr. King asserted throughout that a virus could be equally causative of Mr. Gallant’s hearing loss, and that theory was Dr. Brake-Patten’s focus in the conduct of her defence. [ 24 ] Medical conditions which “just happen” are always caused by something. Although a cause may not be known, established or even suspected, there is a cause. The word “idiopathic”, as in idiopathic sensorineural hearing loss, simply means that the cause is unknown or undetermined.

Both cervical manipulation, known to cause vascular events, and a virus, also known to cause hearing damage, could be causative of Mr. Gallant’s hearing loss. It is for the court to determine, on the evidence available, if possible, the

probable cause of an injury. This does not mean that a legal decision must be 100% scientifically correct. If a court determines causation, it simply means that on the evidence presented, which was tested adversarially, the court was convinced on a balance of probabilities of the likely cause. [ 25 ] In this case the trial judge rejected Dr. King’s position that Mr. Gallant could not prove that he suffered a vascular event as a result of the chiropractic manipulation. On the evidence, it was open to him to do so. It is important to note that there is no evidence which supported the cause of Mr.

Gallant’s injury being viral to the exclusion of a vascular cause, although all experts agree that viruses are known to cause hearing damage. Neither is there any evidence that the cause of his injury was more likely viral than vascular. Mr. Gallant had no viral symptoms at the time of his injury. His lack of viral symptoms, although not conclusive proof that his loss was not caused by a virus, is relevant and supportive of his not having a virus at the time. Also supportive of Mr.

Gallant’s vascular theory is that the course of his hearing damage was not slow to progress, as is the case with viral-induced hearing loss. [ 26 ] Dr. King maintained that Mr. Gallant ought to have been able to prove by radiography that he suffered a vascular event. The evidence was that Mr. Gallant had his first MRI on September 12, 2002, some ten months after the date of injury. Doctors Batten, Stewart and Cron all testified that radiography at that time would not have shown evidence of a vascular event because the blood would have been re-absorbed during the long delay since the manipulation.

The same three expert witnesses said that given the hair-like diameter of the labyrinthine artery to which they say the clot from the dissection was thrown and which in their opinions caused the ischematic event leading to Mr. Gallant’s deafness and tinnitus, it was unlikely that radiological equipment would have detected anything even if radiographs had been taken shortly after the cervical manipulation. Even Dr. King conceded that MRI investigation would only possibly have disclosed Mr. Gallant’s dissection. Dr.

King testified that a more definitive investigative tool, Magnetic Imaging Angiography (MRA), which in his view Dr. Batten ought to have ordered for Mr. Gallant when he saw him in May 2002, could have provided radiological evidence. Aside from issues respecting the availability of MRA to Mr. Gallant, Dr. Batten was retained by Mr. Gallant’s disability insurer for the specific purpose of determining whether Mr. Gallant’s injuries prevented him from performing his supervisory job at the mill. Dr. Batten was not retained to determine the cause of Mr.

Gallant’s injury by proving it with angiography, which may or may not have provided any evidence of a vascular event. In any event, the availability of early radiographic evidence was outside of Mr. Gallant’s control. The fact that his physicians did not order radiological testing forthwith upon Mr. Gallant’s complaint of symptoms does not prevent him from making and/or succeeding in a claim that could possibly have been conclusively proved by those tests. [ 27 ] Dr. King also based his opinion on the length of the delay between the time of the cervical manipulation and the onset of Mr.

Gallant’s symptoms, reasoning that if Mr. Gallant was injured by the cervical manipulation, he would have suffered a stroke, with serious pain and other consequences, directly afterwards. Dr. King says that the two to three hour delay between the cervical manipulation and the onset of Mr. Gallant’s balance and hearing symptoms is too long a time lapse for the cervical manipulation to be causative. [ 28 ] Temporality was an issue at trial, and it figured significantly in the trial judge’s causation analysis (see paragraphs 120-124 and 131 of the decision). Drs.

Cron, Batten and Stewart explained that they did not regard the vascular event they say Mr. Gallant suffered as a full vertebral artery dissection or stroke. Both Dr. Cron and Dr. Batten, who are ENT specialists, would not characterize Mr. Gallant’s injury as a stroke because it did not involve the brain. Dr. Stewart, after hearing during the trial about the nature and severity of Mr. Gallant’s balance issues on the night of December 10, 2001, felt the injury was more serious than he initially believed. Accordingly, Dr. Stewart, a neurologist, felt that Mr.

Gallant’s serious balance problems which manifested in the hours following the chiropractic manipulation treatment demonstrated possible brain involvement. [ 29 ] The opinion evidence of Doctors Stewart, Batten and Cron was that Mr. Gallant’s symptoms, which developed within two or three hours of chiropractic treatment and escalated thereafter, manifested within a reasonable time for the type of injury he suffered. They each explained that Mr. Gallant did not suffer a full dissection of his vertebral artery.

Rather, he suffered a tearing of the intima (the inner layer of the vertebral artery) which threw a clot to the labyrinthine artery (which is about the size of the diameter of a hair) which in turn blocked the blood supply to the cochlea long enough to cause permanent hearing damage. These doctors explained that the dissection of the innermost of three layers of the vertebral artery would cause blood to seep out in such a manner as to cause the progression of symptoms as Mr. Gallant suffered them, and not as Dr. King suggested.

A full dissection of the vertebral artery, as opposed to a tear in the intima, may well have caused Mr. Gallant to suffer significant and immediate symptoms, but Mr. Gallant did not suffer a full dissection. [ 30 ] The record and decision indicate that the trial judge appreciated and considered the questions raised by Dr. King. But it was entirely open to him to accept the explanatory and well-reasoned evidence of Doctors Batten, Cron and Stewart, proffered separately, as answering Dr. King’s concerns about proof, especially given the absence of evidence supporting a viral cause.

The trial judge’s acceptance of the evidence of Doctors Batten, Cron and Stewart is neither speculation nor conjecture. [ 31 ] Dr. Brake-Patten also emphasises what she asserts is a change in Dr. Stewart’s opinion as to the nature of Mr. Gallant’s vascular event. She argues that Dr. Stewart’s evidence is at variance with that of Doctors Cron and Batten, and that Dr. Stewart changed his opinion during his cross-examination at trial from that expressed in his report. [ 32 ] I do not agree that Dr. Stewart resiled from his original opinion.

He did, however, expand upon it after learning additional information about the balance problems Mr. Gallant experienced on the evening of December 10, 2001. Dr. Stewart testified that the dissection of the intima may have also thrown a bit of clot to Mr. Gallant’s cerebellum which would explain his severe leaning to the right on his way into the hospital on December 10, 2001. Dr. Stewart’s evidence on this point was: The interesting thing is a dissection gives rise to a clot that often goes in a spray. You don’t just - - you know, you may not just get one clot. You can have a series of clots.

That’s why most – there is what we call classical brainstem syndromes. They are rare. They are typically patchy. So you get a little bit of an embolus going to one side, a little bit of an embolus going to the other side. And again, that’s, you know, potentially explained by, you know, if he threw a little clot to the right side of his cerebellum and a little clot to his ear maybe that’s what was going on. The fact that he was stumbling to the right is something that just can’t be overlooked. That’s the first time I’d heard of it.

[33] Dr. Brake-Patten argues that the evidence about Mr. Gallant’s balance problems came anecdotally from the plaintiff’s wifeduring the trial which was seven years post incident. The plaintiff testified that his balance problems began a couple of hours after histreatment, and the hospital record of the same date references Mr. Gallant’s dizziness and feeling off balance. Moreover, the reports ofDoctors Swannie, O’Shea, Batten, McComiskey, Cron, Stewart and King are replete with references to Mr. Gallant’s balance issues. Itwas the nature and degree of the balance problems, specifically that Mr.

Gallant was leaning heavily to the right and requiring his wife’sassistance to walk into the hospital on the night of December 10, 2001, which Dr. Stewart was either unaware of or did not fullyappreciate before trial, which informed his expanded opinion. [34] It is therefore not accurate to say that Dr. Stewart changed his opinion at trial by testifying that Mr. Gallant suffered a stroke inthe brain stem. Dr. Stewart was simply expanding on the same theory as he, Dr. Cron and Dr. Batten had held all along concerning theetiology of Mr.

Gallant’s hearing loss, that being that a clot thrown from the dissection of the intima of his vertebral artery into hislabyrinthine artery caused an ischemic event in the cochlea resulting in Mr. Gallant’s hearing damage. With the new information, Dr.Stewart was merely explaining that at the time of the dissection another bit of clot could have been thrown in a different direction whichcould explain Mr. Gallant’s balance issues. This is not a new causation theory, nor is Dr. Stewart’s evidence in this regard inconsistentwith that of Dr. Cron and Dr. Batten. It is an expansion of Dr.

Stewart’s original opinion based on information new to him, which hadlikely been obscured by the concentration of medical attention on the more serious issue of Mr. Gallant’s loss of hearing. [35] Trials involving complicated medical issues sometimes result in experts modifying or expanding their opinions at trial beyondthe four corners of their written reports. While the circumstances of each case must be evaluated so as to prevent prejudice to a partywho has relied on written reports in preparing for trial, (See Ross Estate v.

Hiscock, 2007 NLCA 2, 262 Nfld. & P.E.I.R. 343) in this casethere is no reason to disallow the evidence. Dr. Brake-Patten has not demonstrated that she has been prejudiced by this evidence. Thetrial judge had the discretion to admit it and it was properly before the court. In any event, the trial judge’s decision does not indicateundue or exclusive reliance on this aspect of Dr. Stewart’s testimony. Effect of identified errors [36] Dr. Brake-Patten has shown that the trial judge made two factual errors in the reasoning leading to his decision that Mr.Gallant’s injury was caused by the cervical manipulation.

However, for Dr. Brake-Patten to succeed in her appeal, she must demonstratethat these factual errors are palpable and overriding. In other words, were they so material to the trial judge’s conclusion on causationthat the finding cannot stand in their absence? [37] In my view, the preponderance of evidence demonstrates that the trial judge’s decision on causation is supportable despite theseerrors. Doctors Cron, Batten and Stewart testified that it was highly probable that Mr. Gallant’s injury was caused by the cervicalmanipulation. They explained the mechanism and progression of Mr. Gallant’s symptoms.

Their evidence is not novel, given that thechiropractic profession itself acknowledges the risk of vascular damage associated with cervical manipulation (see paragraphs 5, 19 and20 of the trial judge’s decision) and medical literature has long recognized risks of impaired vision, sudden sensorineural hearing loss,loss of balance and death as a result of cervical manipulation (see paragraph 48). On the evidence, it was open to the trial judge toaccept the evidence of Doctors Cron, Batten and Stewart as satisfactorily answering the questions raised by Dr.

King’s evidence and toeliminate a viral cause. [38] It is clear from the trial judgment that the trial judge’s decision on causation was heavily influenced by temporality, in that Mr.Gallant suffered symptoms of injury very soon after the cervical manipulation. This temporality factor, which enjoyed the support ofDoctors Cron, Batten and Stewart, was significant to the trial judge’s finding of causation, as shown from his reliance on the followingexcerpt from Sentilles v.

Inter-Caribbean Shipping Corp., 361 U.S. 107 at 109-110 (1959): The jury's power to draw the inference that the aggravation of petitioner's tubercular condition, evident so shortly after the accident, wasin fact caused by that accident, was not impaired by the failure of any medical witness to testify that it was in fact the cause. Neither canit be impaired by the lack of medical unanimity as to the respective likelihood of the potential causes of the aggravation, or by the factthat other potential causes of the aggravation existed and were not conclusively negated by the proofs.

The matter does not turn on theuse of a particular form of words by the physicians in giving their testimony. The members of the jury, not the medical witnesses, weresworn to make a legal determination of the question of causation. They were entitled to take all the circumstances, including the medicaltestimony into consideration. [39] Upon consideration of all of the evidence and the trial judge’s decision, it cannot be said that his two factual errors materiallyinfluenced his finding on causation. While they may be palpable in that they are obvious, they are not overriding.

As already explained,there was ample other evidence to support the trial judge’s finding that Mr. Gallant’s injury was caused by the cervical manipulation. [40] Accordingly, the trial judge did not err in finding that Dr. Brake-Patten’s cervical manipulation caused Mr. Gallant’s injury. CAUSATION: Would Mr. Gallant have consented to cervical manipulation if he had been properly informed of its risks? [41] The trial judge found that Mr. Gallant would have declined cervical manipulation if Dr. Brake-Batten had properly informedhim of its risks. Dr.

Brake-Patten challenges that finding, arguing that the trial judge made a palpable and overriding error in reachingthat conclusion. The Law [42] In Arndt v. Smith, (SCC), [1997] 2 S.C.R. 539, the Supreme Court of Canada set out the law governingdeterminations of whether a patient would have consented to treatment despite knowing its risks. At paragraphs 6 and 9 of Arndt, Cory J.discussed the tension between a purely objective test and a purely subjective test from the perspective of fairness to both parties, andultimately confirmed the use of the modified objective test as adopted by Laskin C.J. in Reibl v.

Hughes, (SCC), [1980]2 S.C.R. 880. [43] The modified objective test favours a high standard of disclosure which recognizes a patient’s right to be given the information

necessary to make informed choices from his or her treatment providers. The test and its rationale were described by Cory J. at paragraph 16 of Arndt : The Reibl test has had the desired effect of ensuring that patients have all the requisite information to make an informed decision regarding the medical procedure they are contemplating. Members of the medical and legal professions are familiar with its requirements. It strikes a reasonable balance, which cannot be obtained through either a purely objective or a purely subjective approach.

A purely subjective test could serve as an incitement for a disappointed patient to bring an action. The plaintiff will invariably state with all the confidence of hindsight and with all the enthusiasm of one contemplating an award of damages that consent would never have been given if the disclosure required by an idiosyncratic belief had been made. This would create an unfairness that cannot be accepted. It would bring inequitable and unnecessary pressure to bear upon the overburdened medical profession.

On the other hand, a purely objective test which would set the standard by a reasonable person without the reasonable fears, concerns and circumstances of the particular plaintiff would unduly favour the medical profession. [ 44 ] Dr. Brake-Patten relies on the Alberta decisions Olsen v. Campbell Jones , 2009 ABQB 371 , 11 Alta. L.R. (5th) 203, and Dickson v. Pinder , 2010 ABQB 269 to support her position on this ground of appeal. [ 45 ] In Olsen , the court found that the plaintiff, Mr. Olsen, had provided his informed consent to treatment by the defendant chiropractor. Mr.

Olsen was a knowledgeable and veteran patient of several different chiropractors, and had executed an Informed Consent form, which he said in his testimony he had read and understood. Additionally, the court questioned the reliability of much of Mr. Olsen’s evidence, especially in relation to his evidence concerning the symptoms he alleged were caused by the chiropractor given that he suffered similar symptoms from the pre-existing condition he had prior to the impugned treatment and also afterwards due to a subsequent injury. [ 46 ] In Dickson , the plaintiff suffered a stroke after chiropractic treatment.

The court found that the defendant chiropractor had advised Ms. Dickson of the risk of stroke, but had failed to discharge his duty to inform her of reasonable alternative therapies. The court found that even if the defendant had emphasized the risks of stroke to Ms. Dickson and discussed with her alternatives to chiropractic treatment, she would have consented to his treatment. The evidence showed that Ms. Dickson had already investigated other sources of pain relief and that she was very determined to get chiropractic treatment.

The fact that she had knowingly assumed an increased risk of stroke by continuing to smoke also influenced the court. In short, the court found that because Ms. Dickson was an experienced patient used to deciding treatment options who demonstrated a cavalier attitude to risk, she would likely have had the chiropractic treatment regardless of the defendant’s failure to properly inform her. Analysis [ 47 ] The facts of the Olson and Dickson cases are distinguishable from Mr. Gallant’s case. Unlike the plaintiffs in those cases, Mr.

Gallant was not a perennial chiropractic patient who had signed a written consent to treatment. He did not have a chronic neck condition, nor was he in dire need of immediate relief. He chose to seek this treatment. He was not losing time from work as a result of his condition. At the time of injury, he was 46 years old. He was physically active and enjoyed outdoor activities. His supervisory job at the mill required physical agility and he was pursuing further training to enhance his work opportunities.

He and his wife had invested in a personal care home business for which he did the maintenance, which also required him to be physically able. As well, other treatment options without serious risks were available and not discussed with Mr. Gallant, and could possibly have helped him with his sore neck. The trial judge considered what the reasonable patient in Mr. Gallant’s position would have done and reasoned that because Mr.

Gallant’s work and lifestyle were dependant on his ability to perform physical work, and because he was not in a desperate condition determined to acquire immediate relief for his symptoms, he would have elected to forego the cervical manipulation had he been properly informed of its risks despite the fact that his previous experiences with Dr. Brake-Patten were positive. [ 48 ] The trial judge correctly stated the law applicable to this issue, and he made no error in applying it to the facts. Dr.

Brake- Patten has not demonstrated that the trial judge made factual errors or erred in his appreciation of the evidence on this point. The record discloses that there was sufficient evidence on which the trial judge could rely to conclude that Mr. Gallant would not have consented to cervical manipulation had he been properly advised of its risks. Accordingly, the trial judge’s finding in this regard is not in error. EXPERT OPINION EVIDENCE: Did the Trial Judge Err by Admitting and Relying on Dr. Stewart’s evidence? Background [ 49 ] Dr. Brake-Patten argues that Dr.

Bradley Stewart’s evidence is biased and that the trial judge erred by admitting and relying on it. [ 50 ] Dr. Stewart is a neurologist. He was proffered by Mr. Gallant to provide neurological opinion on the relationship between Mr. Gallant’s hearing loss and the manipulation of his cervical spine. Dr.

Stewart’s expert evidence was to include “the diagnosis and treatment of disease or trauma involving the central, peripheral and autonomical nervous systems including their coverings, blood vessels and effector tissue such as muscles and also including opinion evidence on strokes and vertebral artery dissections.” (See paragraph 83 of the trial decision.) [ 51 ] Dr. Brake-Patten objected to Dr. Stewart’s proposed evidence. Her objection is described at paragraphs 84 and 85 of the trial judgment: [84] Without any challenge to Dr.

Stewart’s academic or clinical credentials, the defence sought disqualification on the basis of bias. The bias issue was based on the allegation that Dr. Stewart had made critical comments about the chiropractic profession in his second report in which he suggested, among other things, that the chiropractic community was in denial with regard to the risk of serious injury to patients arising from manipulation therapy of the neck. Dr. Stewart attributed this state of affairs to what he believed was inadequate training of chiropractors in neurology.

He was also critical of the quality of research by the chiropractic community with regard to the potential adverse consequences from cervical manipulation.

[85] The defence specifically directed the Court’s attention to a book published in 2000 entitled “Spin Doctors: The ChiropracticIndustry Under Examination”, (The Dundurn Group: Toronto, 2002), the foreword of which was authored by Dr. Stewart. The forewordcontained criticism by Dr. Stewart of the chiropractic profession similar to those discussed in his rebuttal to Dr. King’s second report. These comments made by the trial judge were in relation to the following specific comments Dr.

Stewart made in the foreword to SpinDoctors: The Chiropractic Industry Under Examination: “[m]uch like the tobacco industry of the 1960’s, the chiropractic communityappears to feel that if they continue to deny virtually all complications arising from their treatment the public will not listen to thewarnings of all medical doctors” and “[t]here is a straw that breaks the camel’s back – perhaps this book will be it”. [52] A voir dire was held. In considering admissibility, the trial judge directed himself to the principles established by the SupremeCourt of Canada in R. v.

Mohan, (SCC), [1994] 2 S.C.R. 9, and R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600. Hedetermined that Dr. Stewart’s evidence concerning vascular events associated with injury was both relevant and beyond the ordinaryknowledge of the court and therefore it was necessary to his consideration of causation: [92] Applying the criteria to Dr. Stewart, the Court is satisfied that the evidence of Dr. Stewart is clearly relevant given theneurological perspective on the question of causation given by Dr.

King in an area where the risks to the vertebral artery frommanipulation of the cervical spine are documented but are alleged to be rare in their occurrence. [93] Dr. Stewart’s evidence is also relevant and necessary in assisting the Court with regard to the fact finding process. Dr. Stewarthas demonstrated that he has academic and clinical knowledge as a neurologist to give opinion evidence regarding strokes resulting frominjury to the vertebral artery. … [53] The trial judge determined that critical commentary found in Dr.

Stewart’s second report did not “detract from the value of theanalysis and commentary made from a medical view-point in response to Dr. King’s opinion.” The trial judge ultimately admitted Dr.Stewart’s reports and permitted him to testify, although he excised “three strident and inappropriate” comments from Dr. Stewart’ssecond report: [97] Notwithstanding Dr. Stewart’s criticism of the chiropractic community and the issues surrounding the manner of his retention,the Court has determined that he was able to give useful testimony with regard to the probabilities surrounding whether Mr.

Gallant’ssymptoms occurred as the result of a vascular event or a viral condition. The criteria outlined in Mohan [have] been met for the purposeof consideration of his testimony. In reaching this conclusion, I have considered the core material of both of Dr. Stewart’s reports as wellas his trial testimony, both on direct and cross-examination. I am satisfied that Dr. Stewart was sufficiently neutral and objective inexplaining and defending his opinion that the admissibility of his evidence is justified. [54] It is clear from the decision that the trial judge assessed Dr.

Stewart’s evidence in his overall consideration of the evidence, andthat he relied on it, although by no means exclusively, to support his conclusion that Dr. Brake-Patten’s manipulation of Mr. Gallant’scervical spine caused his injury. The Appeal [55] Dr. Brake-Patten asserts that Dr. Stewart’s criticism of the chiropractic profession and his avowed desire to eradicatechiropractic neck manipulations shows that he is neither independent nor objective, and that he is effectively an advocate for Mr.Gallant.

She maintains the doctor’s views constitute a bias against the chiropractic profession so as to render his evidence inadmissible. Alternatively, she maintains that if Dr. Stewart’s evidence is admissible, it is, for the same reasons, unreliable and therefore worthy oflittle or no weight. Issue [56] It is clear that Dr. Stewart does not approve of chiropractic neck manipulation and that he is disparaging of what he says is thechiropractic profession’s response to warnings about complications arising from the procedure.

The issue, however, is whether his openand unapologetic position affects his neurological opinion evidence such that it ought not to be admitted, or alternatively, if admitted,relied upon. Standard of Review [57] To succeed in her argument that the trial judge erred in admitting Dr. Stewart’s evidence, Dr. Brake-Patten must demonstratethat the trial judge made a legal error by misstating, misinterpreting or misapplying the law in admitting Dr. Stewart’s evidence. Tosucceed in her argument that the trial judge ought not to have relied on Dr. Stewart’s evidence, Dr.

Brake-Patten must establish that thetrial judge made a palpable and overriding error in his appreciation of Dr. Stewart’s evidence. (Housen v. Nikolaisen, 2002 SCC 33,[2002] 2 S.C.R. 235.) The Law [58] The receipt of evidence by trial courts is governed by rules and principles which have developed over time for the purpose ofincreasing the likelihood that the evidence received is relevant and accurate. Relevant and accurate evidence is what trial courts need intheir pursuit of truth, which is their ultimate objective (R. v. Nikolovski, (SCC), [1996] 3 S.C.R. 1197 at paragraph 13and R. v.

Levogiannis, (SCC), [1993] 4 S.C.R. 475 at 483).[1] [59] Generally speaking, opinion evidence is not admissible because it usurps the role of the fact-finding court. Expert evidence,sophisticated though it may be, is opinion evidence. However, the law recognizes that courts must sometimes decide issues which

require specialized knowledge not within the common understanding of judges and juries, so it permits the reception of expert evidenceto assist courts with these decisions. This rationale was explained in Mohan, and succinctly put by MacDonald J. in Fellowes, McNeil v.Kansa General International Insurance Co. (1998), (ON SC), 40 O.R. (3d) 456 (Ont. Gen. Div.), an oft-quoted casewhich addresses the role of an expert in civil trials: Experts must not be permitted to become advocates.

To do so would change or tamper with the essence of the role of the expert, whichwas developed to assist the court in matters which require a special knowledge or expertise beyond the knowledge of the court... … anexpert's report "cannot be advocacy dressed up as expert opinion." … [60] In civil cases, the starting point for deciding whether expert opinion evidence is admissible is rule 46.07 of the Rules of theSupreme Court, 1986. Subject to the overriding discretion of the trial judge, the rule provides for notice of the proposed expert evidenceto an opposite party as a condition of admissibility.

It does not address, of course, the substantive principles relating to admissibility. [61] Admissibility of expert opinion evidence is governed by the criteria set out by the Supreme Court of Canada in Mohan. Thefour criteria are: 1) the expert must be properly qualified; 2) the proffered evidence must be relevant; 3) the proffered evidence must be necessary to assist the trier of fact; and 4) there must be no rule excluding the proffered evidence. [62] The reliability of Dr. Stewart’s evidence is central to Dr. Brake-Patten’s appeal arguments respecting both admissibility andreliance.

Reliability of proffered expert evidence is addressed in Mohan under the relevance criterion. Sopinka J., speaking for theCourt, determined that reliability of evidence ought to be considered in relation to its probative value, and admitted or excludedaccordingly: Relevance is a threshold requirement for the admission of expert evidence as with all other evidence. Relevance is a matter to bedecided by a judge as [a] question of law. Although prima facie admissible if so related to a fact in issue that it tends to establish it, thatdoes not end the inquiry.

This merely determines the logical relevance of the evidence. Other considerations enter into the decision as toadmissibility. This further inquiry may be described as a cost benefit analysis, that is "whether its value is worth what it costs." SeeMcCormick on Evidence (3rd ed. 1984), at p. 544. Cost in this context is not used in its traditional economic sense but rather in terms ofits impact on the trial process.

Evidence that is otherwise logically relevant may be excluded on this basis, if its probative value isoverborne by its prejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value or if it ismisleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability. While frequentlyconsidered as an aspect of legal relevance, the exclusion of logically relevant evidence on these grounds is more properly regarded as ageneral exclusionary rule (see Morris v. The Queen, (SCC), [1983] 2 S.C.R. 190).

Whether it is treated as an aspect ofrelevance or an exclusionary rule, the effect is the same. The reliability versus effect factor has special significance in assessing theadmissibility of expert evidence. (Emphasis added.) [63] In J.-L.J., the Supreme Court concluded that parties should be afforded the opportunity to put forward the most completeevidentiary record consistent with the rules of evidence.

However, Binnie J. emphasized that a trial court should take its role ofgatekeeper seriously: … The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on thebasis that all of the frailties could go at the end of the day to weight rather than admissibility.

A trial court’s gatekeeper function is especially important in criminal cases where juries are involved, for prejudice resulting from theadmission of unreliable evidence in a jury trial is more difficult to remedy than in civil or judge-alone cases. [64] Reliability of proffered expert evidence was considered as an admissibility criterion in R. v. Melaragni (1992), (ON SC), 73 C.C.C. (3d) 348 (Ont. Gen.

Div.), where the court applied a threshold test of reliability to novel scientific knowledgeand techniques, and made determinations based on balancing the assessed value and reliability of the proffered evidence with itsprejudicial effect. [65] In R. v. Abbey, 2009 ONCA 624, 246 C.C.C. (3d) 301 the Court considered whether expert sociological evidence on the tattooculture of urban street gangs was admissible in a jury trial.

Doherty J.A., writing for the Court, distinguished threshold reliability fromultimate reliability, at paragraph 142 of the judgment: In performing the “gatekeeper” function, a trial judge of necessity engages in an evaluation that shares some of the features with theevaluation ultimately performed by the jury if the evidence is admitted. The trial judge is, however, charged only with the responsibilityto decide whether the evidence is sufficiently reliable to merit its consideration by the jury.

The integrity of the trial process requiresthat the trial judge not overstep this function and encroach onto the jury’s territory. In assessing threshold reliability, I think trial judgesshould be concerned with factors that are fundamental to the reliability of the opinion offered and responsive to the specific dangersposed by expert opinion evidence. Trial judges, in assessing threshold reliability, should not be concerned with those factors which,while relevant to the ultimate reliability of the evidence, are common with those relevant to the evaluation of evidence provided bywitnesses other than experts.

For example, I would not think that inconsistencies in an expert’s testimony, save perhaps in extreme cases,would ever justify keeping the expert’s opinion from the jury. Juries are perfectly able to consider the impact of inconsistencies on thereliability of a witness’s testimony.

(Emphasis added.) [ 66 ] The Abbey Court ultimately determined that the expert evidence was admissible because it met the test for threshold reliability, and that its ultimate reliability, including the reliability of the information used by the expert to inform his opinion evidence, was properly a matter of weight for the fact-finding jury. [ 67 ] The criteria for admissibility of expert evidence as set out in Mohan have been held to apply to civil cases.

As principles of law, these criteria are equally applicable to civil and criminal cases. [ 68 ] An allegation of bias on the part of an expert witness can potentially engage both threshold and ultimate reliability considerations. [ 69 ] In McNamara Construction Co. v. Newfoundland Transshipment Ltd., 2000 CarswellNfld 402 (SCTD) , a breach of contract case related to the construction of a crude oil shipping terminal, the defendant argued that an expert’s report demonstrated that she was not objective and independent.

In the course of his analysis, Orsborn J., as he was then, remarked at paragraph 4: [4] … I do believe that when reporting as an expert, the expert and the report, if it's to be of assistance, do require a demonstration of a measure of objectivity and independence, and that is an objectivity and independence which flows from being true to the particular discipline involved . … (Emphasis added.) [ 70 ] Justice Orsborn went on to find that the expert report contained pejorative language, legal analyses and legal conclusions in favour of the plaintiff.

He ultimately concluded the report was inadmissible due to its partiality to the plaintiff, saying it was not a report of assistance to the court within the proper and limited sphere of expert, technical and scientific assistance. [ 71 ] An expert’s report was also ruled inadmissible in Day v. Karagianis , 2005 NLTD 21 . There, the plaintiff had sought to introduce a medico-legal report which the trial judge found:

a) lacked independence and objectivity;

b) contained pejorative and judgmental language;

c) made legal

interpretations and conclusions;

d) was an instrument of advocacy and argument on behalf of the Plaintiff; and

e) failed to confine itself to the appropriate area of expertise. Although the court ruled the report inadmissible, the expert was permitted to give viva voce evidence subject to guidelines set by the court. [ 72 ] The result in Day – that the reports were inadmissible but the expert was permitted to testify – is an illustration of a court purging inappropriate material from an expert’s evidence so as to enable otherwise valuable evidence to be put before the court.

The result of this ruling enabled the party proffering the expert to be heard, provided the expert confined her evidence to assisting the court with matters within her area of expertise. [ 73 ] In Corner Brook Pulp & Paper Ltd. v. Geocon , 2000 CarswellNfld 412 (SCTD) , the court ruled an expert’s report inadmissible on the basis that it contained legal analyses and conclusions and pejorative language, and that it did not provide necessary evidence on matters that were beyond the ken of the court.

The objecting party had argued that the expert’s report ought not to be admitted on grounds of partiality, one example of which was that the proffered expert had been a former president of the defendant company at a time relevant to the litigation. On that specific issue, Orsborn J. was not persuaded that independence of an expert was a necessary pre- condition to the reception of his or her opinion evidence.

He held that where the expert is otherwise properly qualified, the evidence of a partial expert is admissible and that type of partiality is a factor which would influence assessment of the reliability of the evidence, which is an issue going to weight. (See Geocon at paras. 13 and 14.) [ 74 ] In Loblaws Inc. v. United Dominion Industries Ltd ., 2007 NLTD 45 , the defendant sought to introduce an expert report and testimony from a welder which related to the construction of a collapsed roof.

The court admitted the expert evidence, but ultimately gave it little weight because the witness’ general approach was “to assign legal responsibility for the defects away from the defendant” causing the court to find the expert lacked the objectivity required of expert witnesses. [ 75 ] In Perry v. St. John's Transport Commission , 2010 NLTD(G) 154, the court considered the admissibility and reliability of an expert report and viva voce evidence from a family doctor who testified on behalf of his injured patient.

After reviewing the law, Dunn J. admitted the doctor’s expert report and opinion evidence, but ultimately accorded it little weight because the witness lacked “the level of objectivity and independence [which] the plaintiff, his patient, required of him.” [ 76 ] In The Performance Factory Inc. v. Atlantic Insurance Company Limited , 2010 NLTD 40 (presently under appeal to this Court but not on this issue), the defendant proffered expert evidence on the cause of a fire.

The court admitted the evidence but gave it little weight, finding that the expert, who was retained several years after the fire, had set out to support the defendant’s theory of arson which was demonstrated by the lack of supporting physical evidence for the expert’s opinion and his dismissive attitude to other causation theories. [ 77 ] In National Justice Compania Naviera SA v. Prudential Assurance Co. , [1993] 2 Lloyd’s Rep. 68 (Eng.

Q.B.) , an English civil case commonly referred to as “ Ikarian Reefer ,” after the name of the vessel involved, Cresswell J. listed seven duties and responsibilities of testifying experts. This list was endorsed by the English Court of Appeal ([1995] 1 Lloyd’s L.R. 455) with one small qualification immaterial to this matter. Ikarian Reefer figures prominently in Canadian jurisprudence concerning testifying experts, and was cited in all of the above-referenced cases. Items 1 and 2 from Justice Cresswell’s list are relevant: 1.

Expert evidence presented to the court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation. 2. An expert should provide independent assistance to the court by objective unbiased opinion in relation to matters within his or her expertise. An expert witness should never assume a role of advocate.

[78] There is no suggestion in Ikarian Reefer that the duties and responsibilities listed are meant to be used as admissibility criteria,or that the expert evidence which was received in that case ought not to have been admitted. [79] Dr. Brake-Patten relies on Kern v. Forest, 2010 BCSC 938 to support her position. In Kern, Dr. Stewart testified as an expertwitness for the plaintiff. The Kern court admitted Dr.

Stewart’s evidence, but chose not to rely on it, saying it was unhelpful because thedoctor was glib and flippant while testifying, his opinions of chiropractic treatment “demonstrated a pre-disposition to be critical of careby chiropractors” and he “crossed the line separating an expert witness from an advocate”. There is no suggestion in Kern thatadmissibility of Dr. Stewart’s evidence was a concern. Although the Kern court chose not to rely on Dr.

Stewart’s evidence, the decisiondoes not explain how the doctor’s views on chiropractic affected the reliability of his expert neurological opinion. [80] The appellant also relies on Eastern Power Ltd. v. Ontario Electricity Financial Corp., (ON SC), [2008]O.J. No. 3722 (ONSC), Alfano (Trustee of) v. Piersanti (ON SC), [2009] O.J. No. 1224 (ONSC) and Bank ofMontreal v. Citak, (2001) (QC CQ), 104 A.C.W.S. (3d) 110 (ONSC) to support her position respecting Dr. Stewart’sevidence. [81] In Eastern Power, the central issue was the calculation of power rates in a breach of contract case.

The plaintiff proffered aconsultant in the areas of energy and public utility regulation to opine on the rate calculations made by the defendants. Bellamy J.specifically adopted the list of duties and responsibilities of expert witnesses from Ikarian Reefer, admitted the expert evidence andassessed it for its weight in the context of the whole of the evidence.

She found that some of the expert’s evidence was quite helpful, butin the final analysis, she could not accept his opinions on the rate calculations because: 1) it was evident during the expert’s testimonythat he had a deep distrust of public utilities; 2) the expert came to conclusions which were either without foundation or erroneous; and 3)when deficiencies in the expert’s calculations were revealed through cross-examination, he would only reluctantly and after extensivecross-examination concede the errors.

Justice Bellamy concluded that the expert was far too influenced by the exigencies of litigationand that he had become an advocate for his client. There is no suggestion in Eastern Power that the expert evidence was inadmissible. [82] In Alfano, the court disqualified a proposed expert witness because he was an advocate for the party proffering him.

The courtfound that the witness had not independently verified key foundational facts in his reports, and that he had based his analysis on thedefence position, all of which was obvious from a series of emails between him and the defendant. [83] In Bank of Montreal, the defendant proffered an expert to give opinion evidence on receivership matters. In a pre-trialapplication, his evidence was challenged for its lack of neutrality and objectivity.

The court ruled his evidence inadmissible, saying thatalthough sincere, the proffered witness was not an expert in receivership matters (which the witness had admitted), and that the basis forhis evidence was unverified financial information provided by the client. The court also noted the proffered witness’ candid admissionthat he always took the position of advocate for his client, and that his fee was dependant on the outcome of the matter. [84] John D. MacIsaac, Q.C. underscores the importance of objectivity and independence in expert evidence in his

article entitled“The Role of the Expert in the Courtroom: Objective Expert or Team Member?” (2001) 9 C.L.R. (3d) 84, at page 4, and suggests thatthese issues affect the weight a fact-finding body gives to the expert’s evidence: To be the neutral observer who assists the court in interpreting complicated factual matters, an expert witness must retain an air ofobjectivity and a semblance of independence from the hiring party. Objectivity can be attained if the lawyer hiring the expert understandsthat the expert owes a degree of neutrality to the court.

The lawyer who refrains from drawing his or her own expert into the role of the"hired gun" will be rewarded in the long run because the court will be more inclined to give greater weight to expert testimony nottainted by advocacy. In the case of Huerto v.

College of Physicians & Surgeons (Saskatchewan) Smith J., in quoting from the disciplinecommittee, agreed that weight should be given to the expert witness's testimony "because of his qualifications and experience but lessthan might have been given if it were not for the bias that he brought to the proceedings." . . . [85] The importance of objectivity in an expert’s evidence was also addressed by Thomas S. Woods in his

article “Impartial Expertor "Hired Gun"? Recent Developments at Home and Abroad”, (Mar. 2002) 60 Advocate (Van.) 205-209. At page 205, Mr. Woodsreviews the reason why experts are permitted to give opinion evidence, and then cautions that partiality is likely to affect the weight suchevidence is given: ...While not conclusive, evidence of a history on the expert's part of alignment with particular interests in litigation will generally affectcredibility and weight in a negative way.

The opinion of an expert who is too eager to please, too keen to produce a report that is helpful,will almost always unravel on the stand... (Emphasis added.) Analysis Admissibility [86] When expert evidence is challenged on the basis that it is biased or partial, it is important to identify the nature of the allegedbias or partiality. Legal advocacy, containing legal analyses and argument, legal

interpretations and conclusions, which masquerades asexpert evidence is distinctly different from expert evidence which is alleged to be biased or partial on the basis of the expert witnesshaving a connection to a party or an issue in the case. [87] The law reviewed in paragraphs 58 to 85 above indicates that when there is an allegation that a witness is biased or partialbecause the witness has a connection with a party or a matter in issue, the courts have treated the issue as one which goes to weight ratherthan admissibility. ( See Loblaws, Perry, The Performance Factory, Ikarian Reefer, Eastern Power.) In the cases where allegedlybiased or partial expert evidence was not admitted, the rationale for its exclusion rested primarily on findings that the evidence was legaladvocacy, in that it contained legal analyses and drew legal conclusions in support of the party which retained the expert. (See

McNamara , Geocon , Bank of Montreal .) In Geocon , although the expert evidence was not admitted, the court specifically stated that the proposed expert’s close connection with one of the parties would not render the expert’s evidence inadmissible. It is not the role of an expert witness to argue, interpret or opine on questions of law. Legal advocacy disguised as expert evidence is, in principle, not admissible evidence, because it does not meet the admissibility criteria set out in Mohan ; specifically, it is not necessary to assist the court.

In principle, therefore, it is properly exigible from proffered expert evidence. [ 88 ] On a practical level however, there will be cases where the expression of an opinion by an expert may, depending on the subject matter, inevitably have to stray into the area of legal commentary. The fact that an expert’s report may incidentally do so, should not necessarily so taint the report as to render it inadmissible in totality.

It is only where the approach taken is so comprehensive and blatant that the court concludes that the reliability or utility of the opinion as a whole is seriously compromised - ie. so tainted as a whole as not to have a modicum of objectivity – that the report as a whole should be rejected as inadmissible. In other cases, the court should consider redacting offending portions and admitting the rest.

In still other cases where the offending passages are minor or incidental, the report could be admitted with the issue being dealt with as one of weight. [ 89 ] When a challenge to expert evidence is based on the expert witness having a connection to a party or an issue in the case or a possible predetermined position on the case, the essence of the challenge is that the evidence is not reliable because the expert has tailored his evidence to suit the position of the particular party or the expert’s personal views.

This kind of reliability is not an admissibility issue; it is not a threshold consideration of the kind identified in Abbey , or a gatekeeper issue as described in J.-L.J. Nor is it an issue which requires a cost-benefit analysis or a probity versus prejudice assessment of the kind Sopinka J. describes in Mohan .

Rather, it is an ultimate reliability issue, the determination of which calls for an overall assessment of the evidence, carried out in the usual way a court assesses evidence, and involving a review of consistencies and inconsistencies, determinations of credibility and judging whether the evidence helps to establish points in issue and whether it makes sense. [ 90 ] The assessment of ultimate reliability cannot take place at the admissibility stage.

To attempt to decide the ultimate reliability of expert evidence at the admissibility stage would be akin to making a final decision before knowing all of the facts. [ 91 ] Although expert evidence is initially tendered in the form of a written report, an expert’s viva voce testimony given in chief explains the support for the opinion contained in the report by describing how the tenets of the expert’s discipline, applied to the facts of the case, enable him or her to reach his or her conclusion. Much more information respecting these and other issues is usually revealed in cross-examination.

A court needs to hear the whole of this evidence from the expert in order to fairly evaluate its reliability. [ 92 ] Moreover, the ultimate reliability of the expert evidence cannot be fully and fairly determined if it is considered in isolation from the other trial evidence. It is only when the court considers and measures the impugned evidence in relation to the other trial evidence that its pertinence to the points in issue can be decided and its overall worth to the court can be ascertained and appreciated.

This contextual approach to determining the ultimate reliability of the evidence is the fairest way to evaluate it and the best way to get the truth of the issues before the court. [ 93 ] In

summary, in civil cases, if expert evidence meets the Mohan criteria for admissibility, it is admissible. Bias or partiality in expert evidence which is based on the expert having a connection with a party or issue or a possible pre-disposition or approach in the case is a reliability issue which is best determined when the whole of the expert evidence is considered in the context of all of the trial evidence. As such, the issue is one of weight and not admissibility. [ 94 ] In this case, there was no challenge to Dr. Stewart’s qualifications as an expert witness. The trial judge determined that Dr.

Stewart’s evidence was relevant and necessary, and there was no exclusionary rule prohibiting its admission. Thus, the doctor’s evidence met the Mohan criteria for admissibility. The nature of the challenge to Dr. Stewart’s evidence was based on his alleged personal biased views on chiropractic neck manipulations, the inference being that his expert neurological evidence was tailored to accord with his personal biased views. The effect of such an allegation on Dr.

Stewart’s evidence could not be determined unless and until the evidence was assessed in its entirety and within the context of all of the other trial evidence. This required Dr. Stewart’s evidence to be admitted. Accordingly, the trial judge did not err in admitting Dr. Stewart’s evidence. Reliability [ 95 ] Dr. Brake-Patten argues that the trial judge ought not to have relied on Dr. Stewart’s evidence, presumably because it was not reliable.

In order to succeed in this argument, the appellant has the heavy burden of having to show that the trial judge made a palpable and overriding error in his appreciation of Dr. Stewart’s evidence. [ 96 ] Dr. Brake-Patten does not identify any aspects of Dr. Stewart’s neurological evidence that are tainted by his bias or that are otherwise wrong, nor does she identify any way in which the doctor’s neurological opinion is unscientific or untrue to the discipline of neurology. She simply asserts that Dr.

Stewart’s evidence in unreliable because he is opposed to chiropractic neck manipulation. [ 97 ] A trial judge can choose not to rely on evidence for any number of reasons. Usually when a trial judge chooses not to rely on evidence, difficulties with the evidence itself have been identified. For instance, the impugned evidence has been shown to have no factual support or to be in conflict with other more reliable evidence, or to be untrue to the principles of the particular discipline involved.

Sometimes the impugned evidence is shown to be illogical or plainly wrong, or that the expert is inappropriately intransigent and argumentative in the face of being shown the error of his or her ways. Such deficiencies relate to the quality or content of the evidence itself. [ 98 ] Expert evidence cannot be dismissed out of hand on grounds that the proffered expert holds certain views, or because he or she has made statements in the past which touch on the issues before the court. These sorts of allegations do not go to the quality and content of the expert’s evidence.

Rather, they concentrate on the expert witness personally. It is, however, the weight to be given to the “expert evidence [as] the independent product of the expert uninfluenced as to form or content by the exigencies of litigation” which is the issue ( Ikarian Reefer (Q.B.) at 81). [ 99 ] A testifying expert can be adverse to a procedure which he or she believes to be unsafe in any circumstance, as long as he or she

provides professional or scientific support for his or her opinion that the procedure caused the injury in the circumstance before the court. An expert can hold an intransigent personal view about the legitimacy of a certain procedure, medical or otherwise, and still give an objective opinion provided that he or she supports his or her specific opinion by objectively considering the facts in the case and by properly applying the science of his discipline to those facts.

The evidence of expert witnesses who hold particular or strong points of view at odds with the views of an adverse party is not automatically unreliable simply because the expert holds strong views (provided they have some rational basis) on one side or the other on an issue in the case, particularly if the issue is a matter of public or scientific controversy.

The qualities of neutrality and objectivity in expert evidence flow from a neutral evaluation of the presenting problem and an objective application of the expert’s discipline to it, explained in Ikarian Reefer (Q.B.) at page 81 as “objective unbiased opinion in relation to matters within his or her expertise”.

Neutrality and objectivity in the context of expert evidence do not mean that the witnesses themselves have to be neutral people or that they cannot hold personal opinions about matters relating to the litigation. [ 100 ] This is not to say that a witness’ personal views cannot improperly inform his expert opinion so as to make his or her evidence biased; it is entirely possible that this could be so.

In such cases, though, the bias would usually be demonstrated during the examination of the expert witness, and especially during cross examination, when inconsistencies, contradictions, errors, intransigent positions in the face of obvious difficulty and other problems affecting the quality and content of the evidence have been revealed. This is when the witness could well “unravel on the stand” as Thomas Woods put it in his

article referred to in paragraph 85 above. This is also what happened in both Eastern Power and Bank of Montreal where full examination of the expert witness revealed problems with the quality and content of the expert evidence causing the trial judges to decide they could not rely on it.

Even when an expert has not unraveled on the stand, or the evidence has not been shown to be defective, the expert evidence may still be rejected by a trial judge because he or she favours other, more convincing expert evidence, or is simply unconvinced by it. [ 101 ] A party challenging an expert witness’ evidence on the basis of a connection with a party or an issue is generally expected to do more than simply assert that the expert witness’ past statements or personal opinions make his or her evidence unreliable.

The challenging party ought to be able to show how the expert evidence has been improperly affected by matters extraneous to the litigation, in this case bias, and if such improper effect is shown, also that the trial judge failed to appreciate and account for it in making his or her decision. [ 102 ] The appellant’s objection to Dr. Stewart’s evidence rests on the allegation of bias arising from his personal connection to a live issue in the case. The trial judge considered Dr. Stewart’s reports, heard his examination-in-chief, and heard his cross-examination by competent counsel.

He evaluated the doctor’s evidence on the basis of how the doctor interpreted the facts and circumstances of Mr. Gallant’s injury and applied his discipline of neurological medicine to it. The trial judge considered Dr. Stewart’s evidence in the context of all of the trial evidence, including Dr. King’s neurological evidence and the expert evidence given by two ENT physicians. The trial judge was well aware of Dr. Stewart’s personal views of chiropractic neck manipulation when conducting his overall assessment of the evidence, and he addressed this issue in his reasons. Dr.

Brake-Patten has made no suggestion that the doctor’s evidence was untrue to the tenets of his discipline of neurology, or that the assumptions for his opinion or his opinion itself were wrong. [ 103 ] Dr. Brake-Patten does not argue that the trial judge misapprehended Dr. Stewart’s evidence. Moreover, Dr. Stewart’s evidence did not materially differ from the evidence of Doctors Cron and Batten, whose evidence the trial judge found reliable. The trial judge ultimately found Dr. Stewart’s evidence reliable for the reasons he stated. [ 104 ] The fact that the court in Kern did not find Dr.

Stewart’s evidence reliable, in the context of that case, does not mean that Dr. Stewart’s evidence must always be so regarded. It is clear from the trial judge’s analysis in the instant case, that he carefully considered Dr. Stewart’s evidence against his known, strongly-held opinions on the dangers of chiropractic manipulation and nevertheless found his evidence to be of value and worthy of reliance. This he was entitled to do. [ 105 ] In the result, Dr. Brake-Patten has not demonstrated any palpable and overriding error in the trial judge’s appreciation of Dr. Stewart’s evidence.

Accordingly, this ground of appeal fails. REASONS: Did the trial judge err in not providing sufficient reasons for his decision that cervical manipulation caused Mr. Gallant’s injury? [ 106 ] Dr. Brake-Patten argues that the trial judge erred by failing to explain how the evidence permitted Mr. Gallant to satisfy the causation test set out in Snell . She says that the trial judge’s reasons for decision found at paragraph 133 are insufficient in that they do not address questions raised by Dr. Swannie’s report or Dr.

King’s evidence, nor do they explain why the evidence of Doctors Cron, Batten and Stewart was accepted. Consequently, she says she does not know why she lost and that her ability to seek meaningful appellate review is compromised. [ 107 ] Paragraph 133 of the trial decision reads: Notwithstanding questions raised by Dr. Swannie’s report and Dr. King’s report and testimony as to whether the proper diagnosis was idiopathic in nature, the opinions of Doctors Cron, Batten and Stewart have enabled Mr.

Gallant to meet the causation test set out in Snell that a vascular event resulted from the cervical manipulation. [ 108 ] Mr. Gallant’s position is that the trial judge’s careful and well-reasoned assessments of the evidence are found at various points in his judgment, and that they properly informed and explained his conclusions. Mr. Gallant further submits that if there are any deficiencies in the trial judge’s decision, they do not preclude meaningful review, of which the appellant has availed by virtue of this appeal.

The Law [ 109 ] The proper functioning of the judiciary within our constitutional framework requires judges to provide rational justifications for

their decisions. Decisions devoid of reasons undermine respect for the law and for our system of government. (R. v. Sheppard 2002SCC 26, [2002] 1 S.C.R. 869.) In Sheppard, the Supreme Court of Canada explained in detail why parties must not be left in the dark asto why matters of legal importance to them were decided as they were. The case provides an itemized list of principles to guide appellatereview on the ground of deficient reasons for decision. [110] In several subsequent cases, the high court expanded on the duty to give reasons and what constitutes their sufficiency. (See: R.v.

Braich, 2002 SCC 27, [2002] 1 S.C.R. 903; R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621; R. v. Dinardo, 2008 SCC 24, [2008] 1S.C.R. 788; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245; R. v. H.S.B., 2008 SCC 52, [2008] 3 S.C.R. 32; and R. v. R.E.M., 2008 SCC51, [2008] 3 S.C.R. 3.) The most recent and comprehensive treatment of these issues is found in R.E.M.

At paragraph 11 of that case,Chief Justice McLachlin summarized the three main purposes of reasons: (1) reasons tell the parties why the decision was made, proving that the court heard and considered the evidence and has not takenaccount of extraneous matters; (2) reasons provide public accountability so that justice is seen to be done; and (3) reasons permit effective appellate review.

She further noted that reasons help ensure fair and accurate decision-making by focusing the judge’s attention on the salient issues, andthat reasons help to develop the law in accordance with the principle of stare decisis (paragraph 12). [111] At paragraph 35 of R.E.M., the Chief Justice summarized the test for sufficiency of reasons:

(1) Appellate courts are to take a functional, substantive approach to sufficiency of reasons, reading them as a whole, in the context ofthe evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard,at paras. 46 and 50; Morrissey, at p. 524).

(2) The basis for the trial judge's verdict must be "intelligible", or capable of being made out. In other words, a logical connectionbetween the verdict and the basis for the verdict must be apparent. A detailed description of the judge's process in arriving at the verdictis unnecessary.

(3) In determining whether the logical connection between the verdict and the basis for the verdict is established, one looks to theevidence, the submissions of counsel and the history of the trial to determine the "live" issues as they emerged during the trial. [112] The Supreme Court of Canada has applied these principles, which were developed in the context of criminal law, to civil cases.

In this regard, there is no principled reason to differentiate between civil and criminal cases given the effort and resources, both privateand public, expended on civil cases and their importance to the parties involved. (See Hill v. Hamilton Wentworth (RegionalMunicipality) Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129; and F.H. v. McDougall, 2008 SCC 53 , 2008 S.C.R.53, [2008] 3 S.C.R. 41.) [113] Hill is a civil case wherein the plaintiff alleged negligent investigation and malicious prosecution against the defendant policeforce. Mr.

Hill lost at trial, and appealed to the Court of Appeal and then to the Supreme Court of Canada on several grounds, of whichone was that the trial judge’s reasons for decision were inadequate. The Supreme Court of Canada dismissed Mr. Hill’s appeal on thebasis that he was unable to establish negligence, but the court also decided that the trial judge’s reasons were sufficient.

In her reasoningon that issue, Chief Justice McLachlin relied on Sheppard, and stated the following: [100] The question is whether the reasons are sufficient to allow for meaningful appellate review and whether the parties’ “functionalneed to know” why the trial judge’s decision has been made has been met. The test is a functional one: R. v. Sheppard, [2002] 1 S.C.R.869, 2002 SCC 26, at para. 55. [101] In determining the adequacy of reasons, the reasons should be considered in the context of the record before the court.

Where therecord discloses all that is required to be known to permit appellate review, less detailed rea

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