Strickey v. Strickey, 2014 NSSC 410

Supreme Court of Nova Scotia (FAMILY DIVISION) Citation: Strickey v. Strickey , 2014 NSSC 410 Date: 20141029 No. SFHMCA-087568 Registry: Halifax Between: Nadine Strickey Applicant v. Stephanie Strickey & Bryan Wood Respondent Library Heading Judge: The Honourable Justice Mona M. Lynch Heard: October 29, 2014 in Halifax, Nova Scotia Written Release: November 18, 2014 Subject: CPR 55.14 Treating Physician’s Narrative

Summary: Counsel sought to have a letter from a doctor admitted pursuant to CPR 55.14 as a Treating Physician’s Narrative. Issues: Is the letter admissible as a Treating Physician’s Narrative under CPR 55.14 Result: Letter not admissible as the opinions expressed were about parenting with recommendations as to custody and did not set out relevant facts observed, findings made during treatment of a party. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: Strickey v.

Strickey , 2014 NSSC 410 Date: 20141029 Docket: SFHMCA-087568 Registry: Halifax Between: Nadine Strickey Applicant v. Stephanie Strickey & Bryan Wood Respondent

Judge: The Honourable Justice Mona M. Lynch Heard: October 29, 2014, in Halifax, Nova Scotia Written Release: November 18, 2014 Counsel: Aileen K. McGinty for the Applicant, Nadine Strickey Bryen E. Mooney for the Respondent, Stephanie Strickey By the Court: (orally) [ 1 ] This is the Strickey matter and it is a matter that deals with the admissibility of a letter from a doctor who is the doctor for Nadine Strickey and the child, Devin. [ 2 ] When we were here last day, Ms. McGinty was looking to have the letter admitted as an expert report under Rule 55.04 and Ms.

Mooney objected to that in saying that it did not comply with the requirements in Rule 55.04. It was set down for a hearing today with Briefs to be filed to determine the admissibility of the letter under Rule 55.04. Ms. McGinty’s Brief indicated that she was no longer looking to have it admitted under

Section 55.04 but looking to have it admitted as a treating physician’s narrative under Rule 55.14. [ 3 ] As both counsel are aware, the reason that there are restrictions on this type of material is that it offers opinions and opinion evidence is generally not admissible. Lay opinion is, in some cases, admissible. For expert opinion there are certain parameters and our Rules provide what has to be in an expert report and in a treating physician’s narrative. [ 4 ] Ms. Mooney referred to the Russell v. Goswell , 2013 NSSC 383 case from Justice Duncan. Justice Duncan deals with the treating physician’s narrative.

He quotes at Paragraph 19 from Shaw v. J.D. Irving Limited , 2011 NSSC 487 , which Ms. Mooney has made reference to, where Justice Scaravelli says that Rule 55.14 distinguishes between an expert’s report and a treating physician’s narrative. The narrative is confined to “the relevant facts observed and findings made, by the physician during treatment”. No discovery or written questions are allowed. In that case, Justice Scaravelli found that the report was not admissible as to allow it, it would circumvent the Rules relating to expert opinion. [ 5 ] In Ms.

McGinty’s Brief she refers to a case by Justice Jollimore, M.(A.W.) v. B.(B.V.), 2014 NSSC 202 . It clearly states in that case, in Paragraph 13, that the report was admitted by consent. It is not a case where Justice Jollimore was trying to determine whether the report was admissible. It went in by agreement so I cannot take it as a precedent for admitting this type of report. [ 6 ] As Ms. Mooney pointed out, Justice Duncan finds in Russell at Paragraph 22 there are three questions that must be asked about each letter: 1. Does it set out the relevant facts observed? 2. Does it set out findings made? and 3.

Were the facts observed, and the findings arrived at, made during treatment?

I would add to Justice Duncan’s list that the narrative must be a report from a physician who treats a party because it says in Rule 55.14(1) that: “a party who wishes to present evidence from a physician who treats a party may, instead of filing an expert’s report, deliver to each other party the physician’s narrative, or initial and supplementary narratives, of the relevant facts observed, and the findings made, by the physician during treatment”. [ 7 ] Implicit in the Rule is that the narrative must be about the treatment of the party.

It goes without saying that the physician who treats a party cannot, under Rule 55.14, offer facts and findings made, or opinions, about other matters. Certainly just because the doctor treats a party does not mean that they can offer opinions on other subjects. [ 8 ] So here the treating physician’s narrative would not be admissible because the opinions offered are not about the treatment of the grandmother. However, I will consider the letter further. [ 9 ] The letter or report provided in this case contains four paragraphs.

Paragraph 2 states that the physician looked after the child since he was born and that he lived with the grandmother since his birth. I can take from that that the physician looked after the child since birth. It also states that the grandmother has ensured that the child attended all of his regularly scheduled appointments for Well Baby and vaccines. However, there are no facts put forward to show what knowledge the physician had as to who ensured the child attended. I am not sure what the physician means by that. Somebody else could have ensured that the grandmother attended.

She can say who attended but she cannot say who ensured that the child attended. [ 10 ] Paragraph 2 continues to say that the only caregiver to attend since the child was six months old was the grandmother, which has nothing to do with the treatment of the grandmother. It also says that she is proactive in ensuring that the child gets quick and appropriate medical attention for any health issues that arrive. There is no basis, again, for that knowledge as to whether it is the grandmother that is ensuring that or not.

I do not know the facts and they are not set out in the letter. [ 11 ] The grandmother is always compliant – there is no basis of that knowledge and it has nothing to do with the treatment of the

grandmother. [ 12 ] She attends appointments for the child, including at the Nova Scotia Hearing and Speech Clinic. Unless the physician attended these appointments, which is not stated, there is no personal knowledge of that. I cannot accept that. It has nothing to do with the treatment of the grandmother. [ 13 ] Paragraph 3 is totally about the grandmother’s knowledge and skills as a parent and not about the treatment of the grandmother. [ 14 ] Paragraph 4, which is acknowledged not to be admissible, provides the support of the physician for the grandmother receiving sole custody. [ 15 ] I find that, as Ms.

Mooney pointed out, that Paragraph 1 is the most telling. It states that the physician is writing at the request of the grandmother and her legal counsel, as she is applying for sole custody of the child. It has nothing to do with treatment. I find it is not a treating physician’s narrative as it has nothing to do with the treatment of the grandmother and that is implicit in Rule 55.14. It is not a narrative of the relevant facts observed and the findings made by a physician during treatment of the grandmother. It is an opinion about parenting and has nothing to do with the treatment.

To be admissible there would need to be relevant facts observed and findings made by the physician during treatment of the grandmother. If, for example, it said that the grandmother was in good health to care for a child of this age, that would be something observed during treatment. [ 16 ] I find that to admit this letter as a treating physician’s narrative would circumvent the expert report rules in Rule 55.04. There are facts in it, as Ms. McGinty has pointed out, facts such as who took the child to appointments could be admissible as an affidavit.

It would not need to be an expert report but it would be an affidavit, the same as anybody else’s, and it would not be a treating physician’s narrative or an expert report. [ 17 ] In

summary, the report is not admissible because: 1. The physician narrative is not about the treatment of a party, as the child is not a party. It is about treatment of the child. 2. It is not a narrative of the relevant facts observed and findings made by the physician during treatment of a party. 3. The facts, such as the grandmother taking the child to appointments would be admissible in an affidavit from a physician as it would be from anyone else who noted that or from the business records of the physician. 4.

Since it is not a treating physician’s narrative, it would have to be admissible under the expert report Rule but I am not sure that the physician would be qualified as an expert in the area for which the opinion is offered. For example, the letter opines that if the child was removed from the grandmother it would be psychologically traumatic, and it provides opinion on the quality of care that the child would receive from the mother. There is no evidence provided as to the doctor’s qualifications to give those opinion.

I find that the report is not admissible, either as an expert report or as a treating physician’s narrative. [ 18 ] Ms. Mooney is requesting costs and the basic rule with regard to costs is that the successful party is entitled to the costs of the proceeding. Ms. Mooney has pointed out that the Civil Procedure Rules’ range of costs for a case such as this is between $250.00 and $500.00. The filing instructions, as Ms. McGinty has pointed out, were not followed in that I had directed Ms. McGinty to file two weeks prior; Ms. Mooney one week prior to the adjourned date.

While there is some costs to be awarded, I agree that perhaps if the Brief had been filed as directed, there may have been an agreement or a withdrawal. So I will award costs at the low end which is $250.00. Lynch, J.