Layes v. Bowes, 2021 NSCA 50

Nova Scotia Court of Appeal Citation: Layes v. Bowes , 2021 NSCA 50 Date: 20210610 Docket: CA 502908 Registry: Halifax Between: Kevin Joseph Layes and Carmen Marie Blinn Appellants and Dr. Matthew Bowes, Dr. Stephen Paul Sturmy, National Medical Services Inc., carrying on Business as NMS Labs, The Attorney General of Nova Scotia, representing Her Majesty the Queen, in Right of the Province of Nova Scotia Respondents Judges: Van den Eynden, Hamilton and Derrick JJ.A.

Appeal Heard: June 10, 2021, in Halifax, Nova Scotia Written Release June 22, 2021 Held: Leave to appeal granted with respect to one affiant and denied for the others. Appeal is dismissed, with costs, per reasons for judgment of the Court. Counsel: Derek B. Brett, for Appellants Agnes E. MacNeil, Q.C., and Neil J. Kuranyi, for the Respondents Dr. Bowes and Attorney General of Nova Scotia Colin J. Clarke, Q.C. and Stewart Hayne, for Respondent Dr. Sturmy Scott R.

Campbell and Sarah Walsh, for Respondent NMS Labs By the Court: [ 1 ] In response to the appellants’ argument that timeliness is important given the length of time since the 2014 death of John James Layes, Sr., the father of appellant Kevin Layes (“Mr. Layes”), we decided to give our decision orally. [ 2 ] This is an interlocutory appeal from the December 8, 2020 decision of Justice Ann E. Smith ( 2020 NSSC 345 ), given following a three-day hearing. The judge’s reasons dealt with two matters.

The first was the respondents’ motion to strike all or portions of affidavits filed by the appellants in support of their motion for an order to exhume (for the second time) the remains of Mr. Layes’ father to obtain “toxicological specimens for testing”. The second was the appellants’ request that they be allowed to amend their motion to exhume to include a second autopsy of the father’s body. [ 3 ] The judge struck paragraphs from all of the affidavits on numerous bases and struck three affidavits in their entirety. She held that all affiants except Kevin G.

Shanks, one of the proposed toxicology experts, could file an amended affidavit. She refused to allow Mr. Shanks to file any further affidavits having found his affidavit indicated he was not an independent expert and was biased “in favour of the [appellants] akin to that of an advocate” (98). [ 4 ] The appellants’, Kevin Layes and Carmen Blinn, motion to exhume was brought within their action against the respondents, commenced in July 2018. [ 5 ] In their underlying action the appellants allege the father was murdered by family members other than Mr.

Layes, through the administration of poison over several months, to enable them to collect several million dollars of life insurance proceeds on the father’s death. They claim the respondent, Dr. Sturmy, assisted in that process in exchange for financial compensation. They claim the respondent, Dr. Bowes, Chief Medical Examiner of the Province of Nova Scotia, in exchange for financial compensation to conceal the poisoning, committed torts of misfeasance in public office, negligence, deceit, fraud and/or negligent misrepresentation in performing the

first autopsy on the father’s remains; finding the father died of natural causes; providing information to Dr. Sturmy to allow Dr. Sturmyto alter the father’s medical records and instructing the respondent, National Medical Services Inc. (“NMS”), on the procedures to followin testing the father’s toxicological specimens, the contents of its reports and its retention of toxicological specimens. They claim NMScommitted torts of deceit, fraud and/or negligent misrepresentation in conspiring with Dr.

Bowes to use inappropriate testing proceduresand to deliberately issue false or inaccurate toxicological reports and in its communications with Mr. Layes regarding toxicologicalspecimens from his father in its custody. They claim the respondent, the Attorney General of Nova Scotia (“AGNS”) is responsible fortortious acts of Dr. Bowes and for failing to adequately supervise him. [6] The appellants seek to appeal the judge’s decision with respect to the affidavits of four people: Mr. Shanks, Robert Pineo andboth of the appellants. Their main focus is on Mr. Shanks.

They argue the judge erred in (1) finding he was not an independent expert,was biased and had assumed the role of an advocate, (2) striking his affidavit in its entirety and (3) prohibiting him from filing anyfurther affidavits. They also argue the judge erred in her treatment of relevance and hearsay in striking portions of Mr. Shanks’ affidavitand in striking all or portions of the affidavits of the non-expert affiants. [7] This is an interlocutory appeal, requiring the appellants to first obtain leave to appeal.

In order to obtain leave, the appellantsmust raise an arguable issue, one that could result in the appeal being allowed; Tri-County Regional School Board 3021386 Nova ScotiaLimited, 2021 NSCA 4, para. 14. [8] Judges must be correct in articulating and applying the law in their decisions to admit or reject evidence. A decision to rejectevidence involves more than the application of legal principles. It involves factual findings and the exercise of discretion. In those twocategories, an appellate court owes deference. We defer to a judge’s factual findings unless they reflect palpable and overriding error.

Wedefer to discretionary decisions unless they give rise to a patent injustice; R. v. Potter, 2020 NSCA 9, para. 438; R. v. Dim, 2017 NSCA80, para. 85; Annapolis County (Municipality) v. Heritage Wooden Shingles, 2016 NSCA 58, para. 67; Abbott and Haliburton Companyv. WBLI Chartered Accountants, 2013 NSCA 66, para. 20; Sable Mary Seismic Inc. v. Geophysical Services Inc., 2012 NSCA 33, para.116. [9] The judge was correct in her articulation of the law with respect to both Mr.

Shanks’ affidavit and those of the non-expertaffiants. [10] She reviewed Civil Procedure Rule 39 and relevant case law (Waverly (Village) v. Nova Scotia (Municipal Affairs), 1993NSSC 71, para. 20; Islam v. Maritime Muslim Academy, 2019 NSSC 53, para. 33; Atlantic Building Systems v. Barefoot, 2000 NSCA75, para. 19; R. v. Burns, (SCC), [1994] 1 S.C.R. 656, p. 667) dealing with proper and improper contents of affidavitsgenerally. [11] With respect specifically to the purported expert affidavits, the judge referred extensively to the authoritative case of WhiteBurgess Langille Inman v.

Abbott and Haliburton Co, 2015 SCC 23, which held that a proposed expert’s independence and impartialitygo to admissibility and not simply to weight and that there is a threshold admissibility requirement in relation to this duty: [50] In R. v. Abbey, 2009 ONCA 624 (OCA), the Court of Appeal outlined a two-step process for determining the admissibility ofexpert evidence: I suggest a two-step process for determining admissibility.

First, the party proffering the evidence must demonstrate the existence ofcertain preconditions to the admissibility of expert evidence… Second the trial judge must decide whether expert evidence that meetsthe preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to thetrial process that may flow from the admission of the expert evidence. (para. 76) [51] The Supreme Court of Canada in White Burgess followed the Abbey approach with minor variations: At the first step, the proponent of the evidence must establish the threshold requirements of admissibility . . .

Relevance at this thresholdstage refers to logical relevance . . . Evidence that does not meet these threshold requirements should be excluded.

Note that I wouldretain necessity as a threshold requirement. (para. 23) [52] Cromwell J. in White Burgess confirmed that a proposed expert’s independence and impartiality go to admissibility andnot simply to weight and there is a threshold admissibility requirement in relation to the expert’s duty to the court (para. 34). [53] Cromwell J. explained that the expert’s opinion must be impartial, independent and unbiased: … in the sense that it reflects an objective assessment of the question at hand.

It must be independent in the sense that it is the productof the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiasedin the sense that it does not unfairly favour one party’s position over another. The acid test is whether the expert’s opinion would notchange regardless of which party retained him or her: P. Michell and R. Mandhane, “The Uncertain Duty of the Expert Witness” (2005),42 Alta. L. Rev. 635, at pp. 638-9. These concepts of course, must be applied to the realities of adversary litigation.

Experts aregenerally retained, instructed and paid by one of the adversaries. These facts alone do not undermine the expert’s independence,impartiality and freedom from bias. (para. 32) [54] The requirement that an expert be fair, objective and non-partisan is a duty owed to the court. The appropriate threshold foradmissibility flows from this duty: White Burgess at para. 46.

[55] If a witness is unable to or unwilling to fulfill this duty owed to the court, they do not qualify to perform the role of an expert and should be excluded: White Burgess at para. 46, quoting from Prof. Paciocco (as he then was) in “Taking a ‘Goudge’ out of Bluster and Blarney: an ‘Evidence-Based Approach’ to Expert Testimony” (2009), 13 Can. Crim. L.

R . 135, at p. 152 (para. 46). [56] Cromwell J. in White Burgess stated that the expert witness must, therefore, be aware of this primary duty to the court and be able and willing to carry it out (para. 46). [57] Cromwell J. observed that imposing this additional threshold requirement is not intended to, and should not result in, trials becoming longer or more complex.

He also observed that he would not go so far as to hold that the expert’s independence and impartiality should be presumed, absent challenge: My view is that absent such challenge, the expert’s attestation or testimony recognizing and accepting the duty will generally be sufficient to establish that this threshold is met. (para. 47) [58] Once the expert attests or testifies on oath to this effect, the burden is on the party opposing the admission of the evidence to show that there is a realistic concern that the expert’s evidence should not be received because the expert is unable and/or unwilling to comply with that duty.

If the opponent does so, the burden to establish on a balance of probabilities this aspect of the admissibility threshold remains on the party proposing to call the evidence: White Burgess at para. 48. [Emphasis added] [ 12 ] Having correctly articulated the law, the judge then carefully reviewed each of the impugned paragraphs and applied this law. [ 13 ] The judge dealt with Mr. Shanks’ affidavit from paragraphs 62 to 97 of her reasons.

She found paragraphs in his affidavit were speculative (11, 29, 30, 32); argumentative (14, 15, 25(b), (c)(iii), (f)(iv), (g), 27, 29, 32, 35); outside of his expertise (16, 25(c), (f)(iv), 35); oath-helping (23, 31); provided conclusions without a factual basis (25(b), (e), 27, 33); read like submissions or plea (27, 34) and were scandalous (25(g), 30, 34). [ 14 ] We grant leave to appeal with respect to the judge’s striking the entirety of Mr. Shanks’ affidavit and her prohibition against him filing any further affidavits, but find the judge made no error in striking Mr.

Shanks’ affidavit in its entirety or in exercising her discretion to bar him from acting as an expert. [ 15 ] None of the appellants’ arguments with respect to Mr. Shanks’ affidavit has merit. The judge’s treatment of Mr. Shanks’ affidavit on a paragraph by paragraph basis was completely appropriate. The onus was on the appellants, not the respondents, to show he was independent given there is nothing in his affidavit stating he is prepared to act independently. [ 16 ] Her finding that Mr. Shanks was not independent and that his bias was akin to advocacy is supported by the evidence. In his affidavit Mr.

Shanks refers to NMS’s authenticity document as “clearly false” and “falsely sworn,” describes the process followed by NMS as “simply unacceptable” and “simply wrong”, speculates that NMS “destroyed” specimens “on instruction from Dr. Bowes”, suggests that NMS and Dr.

Bowes are “concealing the truth”, and declares that the “uncontested evidence” aligns with the appellants’ version of events. [ 17 ] It is clear from White Burgess , para. 49, that a finding of lack of independence is not restricted to an expert having a financial, familial or professional involvement in the case but can be based on an expert assuming the role of an advocate and that this assessment is to be done at the first threshold step of the admissibility process: [49] This threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert’s evidence would be ruled inadmissible for failing to meet it.

The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court. For example, it is the nature and extent of the interest or connection with the litigation or a party thereto which matters, not the mere fact of the interest or connection; the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible.

In most cases, a mere employment relationship with the party calling the evidence will be insufficient to do so. On the other hand, a direct financial interest in the outcome of the litigation will be of more concern. The same can be said in the case of a very close familial relationship with one of the parties or situations in which the proposed expert will probably incur professional liability if his or her opinion is not accepted by the court.

Similarly, an expert who, in his or her proposed evidence or otherwise, assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court. I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence.

Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence. [Emphasis added] [ 18 ] The judge was not required to proceed to the second step of the admissibility process to consider the probative value of the contents of his affidavit, versus its prejudicial value, once she determined he was not independent and was acting as an advocate. [ 19 ] The judge had the authority to prevent Mr. Shanks from filing further affidavits under Rules 39 and 88.

Once she found he was not independent, a characteristic personal to him as an individual, no amount of editing or amendment of his affidavit could correct this problem. [ 20 ] The three non-expert affiants whose affidavits are challenged on this appeal are the two appellants and Mr. Pineo. [ 21 ] The appellants’ main argument with respect to Ms. Blinn’s affidavit is that the judge erred by striking the transcript of the meeting between the appellants and two employees of NMS that the appellants surreptitiously recorded.

They also argue the judge misapplied the law of hearsay because her reasons do not indicate she considered certain hearsay exemptions in reaching her decision, such as the principled exception of necessity and reliability, the exception for admissions contrary to interest, that the transcript was

relevant for more than the truth of its contents and admissible as statements made by employees and agents. [ 22 ] The exceptions to the hearsay rule were not argued before the judge. There is no evidence the two employees of NMS purportedly included in the transcript are not available to testify. The reliability of the transcript has not been established in the evidence. NMS’s counterclaim in the underlying action alleges the surreptitious taping of the meeting was illegal in Pennsylvania, where the meeting took place.

Therefore, as found by the judge, the legality of the transcript is a live issue in this litigation. [ 23 ] The appellants also argue the judge erred in her application of the law of relevance when she dealt with the affidavits of Mr. Layes, Ms. Blinn and Mr. Pineo. They say the paragraphs in those affidavits setting out the procedural history of the underlying action; their understanding of the circumstances of the father’s death; Mr.

Layes’ suspicions of foul play; their alleged recovery of a hair sample from the father and its testing by Laboratoire ChemTox (“ChemTox’) in Strasbourg, France and the background of Mr. Layes’ efforts to have his father’s body exhumed, are all relevant to the motion to exhume as they provide background and context. They say the judge misunderstood paragraph 17 of Mr. Layes’ affidavit. [ 24 ] We note that the reports of the testing done on the hair allegedly cut by the appellants from the father’s head after his death are attached to the affidavit of another expert, Dr.

Vincent Cirimele, Chief Executive Officer of ChemTox, and so will be available on the hearing of the motion. [ 25 ] As identified by the judge, when the exhumation motion is heard on its merits, the question of whether the first autopsy performed by Dr. Bowes was done negligently and whether the toxicological work done by NMS was mishandled will be the key matters in issue.

The appellants’ claims against the respondents in the underlying action for misfeasance in public office, deceit, fraud and/or negligent misrepresentation in the context of a cover-up by the respondents of the cause of death of the father for personal financial gain, will not be determined on this motion. The judge set out the correct law regarding relevance and properly explained why the portions struck were not relevant to the motion to exhume.

She also rightly identified the paragraphs containing inadmissible hearsay. [ 26 ] We deny leave to appeal with respect to the non-expert affidavits as the appellants have not raised an arguable issue. These affidavits were rife with extensive hearsay and irrelevant material that the judge appropriately struck. The appellants are simply asking this Court to retry the evidentiary issues below. [ 27 ] During oral argument, the appellants attempted to expand their grounds of appeal to attack the judge’s treatment of additional affidavits. Raising these issues at this late point is not appropriate.

That said, having reviewed the record and the judge’s decision we discern no error. [ 28 ] Nor is there any merit to the appellants’ argument that Dr. Sturmy and NMS have no standing. [ 29 ] The appeal is dismissed. [ 30 ] We order the appellants to pay costs forthwith, including disbursements, in the amount of $4,800.00 to each of NMS and Dr. Sturmy, and to Dr. Bowes and the AGNS, a total of $4,800.00 made payable to the Minister of Finance for the Province of Nova Scotia. Thus, the total costs payable by the appellants are $14,400.00. Van den Eynden J.A. Hamilton J.A. Derrick J.A.