Robicheau v. Prescott, 2021 NSSC 299

SUPREME COURT OF NOVA SCOTIA Citation: Robicheau v. Prescott , 2021 NSSC 299 Date: 20211020 Docket: Hfx No. 441481 Registry: Halifax Between: John Robicheau Plaintiff v. Thomas Prescott Defendant Decision – Admissibility of Treating Physician’s Narratives Judge: The Honourable Justice Peter P.

Rosinski Heard: October 18, 2021, in Halifax, Nova Scotia Counsel: Laura Neilan, for the Plaintiff Karen Bennett-Clayton and Sara Nicholson, for the Defendant By the Court: Introduction [ 1 ] The Plaintiff has requested that I issue an advance ruling pursuant to Civil Procedure Rule (“CPR”) 55.15 that concludes a series of 21 instances of treating physician’s narrative(s) (“TPN”) from Drs. D. A. Dill and D.P.

Segato are admissible. [ 2 ] The Defendant says these purported TPN’s are inadmissible, because they were created/ dated before the action was commenced and disclosed more than 30 days after the pleadings closed contrary to CPR 55.14 which reads: 55.14 Treating physician’s narrative

(1) 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.

(2) A narrative, or initial and supplementary narratives, must be delivered within the following times : (

a) no more than thirty days after the day pleadings close in an action, if the treatment occurs before the action is started ; (

b) within a reasonable time after treatment is provided during the course of an action and no later than the finish date; (

c) as directed by a judge in an application.

(3) A party who receives a narrative, initial narrative, or supplementary narrative expressing a finding may, within a reasonable time, file a rebuttal report that conforms with Rule 55.05 .

(4) A party may not obtain a discovery subpoena for, deliver interrogatories to, deliver written questions to, or obtain an order for discovery of a treating physician who provides a narrative rather than an expert's report. [My bolding added] [1] [ 3 ] Until late 2020, the jurisprudence from this Court suggested that opinions about causation and prognosis were not admissible,

if present in TPNs. Thereafter, more recent jurisprudence has cast doubt on the previous jurisprudence. Therefore, the present state of the law surrounding the admissibility of treating physician’s narratives is arguably uncertain. [2] [ 4 ] I conclude that the applicable legal principles are persuasively set out in in Ogilvie v. Windsor Elms Village for Continuing Care Society , 2019 NSSC 349 ; Brown v. NSAHO Ltd. Plan , 2020 NSSC 301 ; Kennedy v Smolenaars , 2021 NSSC 143 and Downey v Burroughs , 2021 NSSC 147 .

Background [ 5 ] I am the Justice scheduled to preside over this Judge and Jury trial scheduled to begin January 4, 2022. This proceeding has a long history. [ 6 ] On July 23, 2012, the parties herein were involved in a motor vehicle collision. [ 7 ] On July 21, 2015, the Plaintiff filed his Notice of Action; on November 17, 2015 , the Defendant filed his Notice of Defence. At that point the pleadings were closed .

The trial was originally scheduled to commence April 23, 2019. [ 8 ] In the Plaintiff’s solicitor’s affidavit, sworn September 29, 2021, she stated: “I prepared the original Joint Exhibit Book draft prior to the April 2019 trial. In discussions with Defence counsel, it was agreed that various opinions expressed by the treating physicians would be redacted because they expressed opinions on causation, diagnosis and prognosis, which were not permitted to be used pursuant to the case law at that time.… I was notified by Ms.

Bennett – Clayton on April 9, 2019 (14 days before the trial) that the Defendant wished to rely on a report of Dr. Yabsley as a treating physician’s narrative. I objected to the use of that narrative because it contained opinions on causation, which until recently, was not permissible opinion in a treating physician’s narrative, according to the case law.

The Plaintiff had agreed to redact opinions on causation that were helpful to his case, so I felt it was fair that the Defendant should also have to redact such opinions on causation.” (paras. 12-13) [ 9 ] The trial was re-scheduled to commence on January 4, 2021. It has since again (due to Covid 19) been re-scheduled to commence on January 4, 2022. [ 10 ] The 21 TPNs were “disclosed” to the Defendant in an Affidavit Disclosing Documents on April 11, 2016. They were identified as TPNs for use at trial on or about August 17, 2021.

The significance of the late filing of the Plaintiff’s intention to rely upon the 21 TPN’s at trial [ 11 ] The Plaintiff argues they were not identified as TPNs before August 2021 because: until December 2020 the jurisprudence from this court uniformly appeared to suggest that they were not admissible, if the opinions sought to be relied upon were opinions about causation and prognosis; and thereafter the adjournment of the January 4, 2021, trial, reasonably led to this issue being of lower priority by the parties, and the Plaintiff in particular, for some time thereafter. [ 12 ] The Plaintiff rightly points out that, for bona fide reasons, neither party believed that 30-day notice after pleadings closed referenced in CPR 55.14(2)(

a) was applicable to the TPNs in issue. Thus, the Plaintiff’s responsibility for missing the 30-day notice period, at least until December 2020 should be of no consequence in this motion. I agree. [ 13 ] Nevertheless, thereafter the Plaintiff exclusively does bear responsibility for the late notice. [ 14 ] But again, some of the time interval between December 2020 and August 2021 is also fairly accounted for as “dead time”. [ 15 ] For example, if the Plaintiff had identified the TPNs 6 months before the September 29, 2021 finish date (e.g.

April 1, 2021), the Defendant would have had no reason to complain, since that satisfies the minimum time required for notice of intention (including copies thereof) to rely upon CPR 55.03 expert reports at trial - which Rule also requires rebuttal reports to be delivered within 3 months thereafter. [ 16 ] Arguably, of the overall delay (December 7, 2020 to August 16, 2021) of the Plaintiff’s notice of intention to rely upon the TPNs at trial, the relevant delay only became a concern after April 1, 2021. [ 17 ] Nevertheless, it is CPR 55.14(6) that plays a critical role in my analysis because I am considering timelines for TPNs.

It requires me to consider how much reasonable notice the Defendant requires to allow him to determine whether to retain an expert to assess the opinion and prepare adequately for cross-examination of the two physicians, Drs. Dill and Segato. [ 18 ] Let me next canvas the recent jurisprudence in greater detail. [ 19 ] The jurisprudence began to change in late 2019 - see for example Justice Keith’s careful analysis in Ogilvie v. Windsor Elms Village for Continuing Care Society , 2019 NSSC 349 (issued November 13, 2019). [ 20 ] That was followed by Chief Justice Deborah Smith’s decisions in Brown v. NSAHO Ltd.

Plan , 2020 NSSC 301 which was released on October 23, 2020, and Downey v Burroughs , 2021 NSSC 147 . Chief Justice Smith concluded a less restrictive

interpretation of CPR 55.14 was warranted than had been permitted in the earlier jurisprudence. [ 21 ] In Brown , she cited paragraph 62 from Justice Keith’s decision in Ogilvie :

[62] I would summarize and synthesize the Rules and related jurisprudence regarding a treating physician’s narrative as follows: 1. Rule 55.14 (physician’s narrative) and 55.15 (advance ruling on a physician’s narrative) should be strictly construed to prevent the use of Rule 55.14 as a means of contravening Rule 55.04. In particular, courts should be vigilant to prevent the introduction of expert opinion evidence under the guise of a treating physician’s narrative.

For example, a party receiving the physician’s narrative may reasonably expect clarity in terms of notice – both in terms of time (when the treating physician’s narrative is delivered) and content (ensuring that the treating physician’s observations and the actual opinions being relied upon are properly identified). These concerns reflect the requirement that a party receiving the treating physician’s narrative be afforded a reasonable opportunity to prepare for trial. 2.

At the same time, the treating physician’s narrative is an effort to balance concerns about notice and trial fairness with equally important concerns about access to justice and proportionality. If the requirements under Rule 51.14 are applied too rigidly, treating physicians may become reluctant to assist patients in advancing meritorious claims because the administrative burden and the costs associated with litigation are unduly onerous.

In the end, the Rule should be applied with a view to balancing the underlying demands of proportionality, access to justice, trial fairness and notice in terms of time and the clarity with which the treating physician’s observations and opinions are expressed . On this point, I reiterate that the decision in Russell directing that Rule 55.14 be strictly construed pre-dates (and therefore did not consider) the Supreme Court of Canada’s clarion call in Hryniak . 3. The requirement for proper notice and trial fairness engages considerations of time and content.

As to timing, the treating physician’s narrative (initial and supplementary) must be delivered at a reasonably early stage following receipt of the medical treatments. However, where treatment is ongoing, opinions must be delivered with reasonable dispatch. 4. As to content: a. Unlike an expert report under Rule 55.04 a treating physician’s narrative does not need to conform with any particular format or comply with pre-determined standards in terms of content; b. The treating physician’s narrative must obviously be relevant to a material fact; c.

The treating physician’s narrative must enable the opposing party to understand the relevant facts observed by the treating physician and to identify the findings or opinions flowing from those observations; 5. In terms of complying with Rule 55.14’s underlying purpose, Rule 55.15 confirms that the treating physician narrative must enable the opposing party to fairly prepare for cross-examination and, if necessary, engage an expert. 6. Whether the information contained in a proposed treating physician’s narrative is sufficient to permit the treating physician to testify is contextual and case-specific.

A number of factors bear upon the analysis, including, without limitation: a. Whether the party presenting the treating physician’s narrative has identified the opinions being relied upon or simply delivered the treating physician’s file without reasonably clarifying the findings or opinions being relied [on] and the basis for that opinion (i.e. the observations which underpin those opinions); b. The volume of the information delivered. Is the opposing party simply given a mass of chart notes and left to identify the relevant opinions?

By contrast, is the information delivered manageable in terms of volume and easily understood when analysed against the allegations in dispute? c. The quality of the information delivered and, for example, whether it is sufficiently legible; d. The observations made during treatment and the extent to which they are:

i. Made by the treating physician directly; ii. Based on objective data or testing received by the physician; iii. Based on information received from the patient (self-reporting); iv. Based on information received from other professionals; e. The findings or opinions expressed by the treating physician and the extent to which they are: i. Directly attributable to the treating physician; ii. Derivative and mainly attributed to another person or medical professional; iii.

Provided for therapeutic purposes or, alternatively, predominantly for litigation (e.g. responding to questions posed by legal counsel or transparently focussed on a key legal issue such as causation); In the process of weighing any of these factors under a Rule 55.15 advance ruling, it should be borne in mind that the focus is on notice and trial fairness which, in turn, incorporates questions around time of delivery and content. 7.

The onus falls upon the person seeking to introduce the evidence in question to satisfy the Court that that the exception granted for physician narratives under Rule 55.14 applies (Rule 55.14(6)). There are three related risks that are borne by the party seeking to introduce a treating physician’s narrative: a. If there is an advance ruling under Rule 55.15, the evidence may be excluded although the Judge may provide directions that address any problems (Rule 55.15(2); b.

If there is no advance ruling and a party does not otherwise comply with the procedural requirements of Rule 55.15, the evidence will be excluded by the presiding Judge at trial - not because the evidence is necessarily inadmissible but because the procedural pre- requisites to present the evidence have not been met; c. In all cases and regardless of whether there has been an advance ruling, any challenges regarding admissibility will be determined by the presiding Judge at trial or hearing. Similarly, the weight given to an opinion will be determined by the presiding Judge or Jury.

A party may present opinion evidence that complies with the procedural requirements of either Rule 55.04 or Rule 55.14 that is ultimately deemed either inadmissible or given little weight. [My bolding added] [ 22 ] Chief Justice Smith continued in Brown : [51] Much is made by the comments in previous jurisprudence on the need for Rule 55.14 to be strictly construed so as to avoid the use of the Rule as a means of contravening Rule 55.04.

In my view, this means that the court has to be vigilant to ensure that this Rule is not used by a party to introduce a medical/legal report under the guise of a physician’s narrative. It does not mean that the Rule should be construed so strictly that it is virtually impossible for a party to use a physician’s narrative at trial.

[52] While I have reviewed and considered all of the cases that counsel have referred me to, I do not intend to review each of these cases here. Most of them are fact specific and, as noted by Keith J. in Ogilvie , supra, some of them were decided prior to Hryniak , supra. To the extent that some of these decisions suggest that certain types of opinions (such as opinions on causation or prognosis) are not properly part of a physician’s narrative, I respectfully decline to follow them. In my view, nothing in Rule 55.14 limits the types of opinions that can be included in a treating physician’s narrative.

The test is whether the proposed narrative was prepared for the predominant purpose of treatment. If so, opinions can be expressed, provided the court is satisfied that the other party received information about the opinion, and about the material facts upon which it was based, sufficient for that party to determine whether to retain an expert and prepare adequately for cross-examination of the physician. [My bolding added] [ 23 ] The Robicheau v Prescott trial was originally scheduled to start on April 23, 2019. The original finish date was February 1, 2019.

It was adjourned and re-scheduled to start on January 4, 2021. It was again adjourned and re-scheduled to start on January 4, 2022. Rule 4.16 (Date Assignment Conferences) references a Finish Date as being presumptively no less than 60 days before the first day of trial. The finish date is presently September 29, 2021. [ 24 ] On August 13, 2020, the Defendant filed a notice of motion regarding the admissibility of Dr. Yabsley’s report as a treating physician’s narrative (“TPN”).

Justice Ann Smith issued an oral decision on October 15, 2020, holding that the impugned sentence in the report was not admissible because it was an opinion on causation. [ 25 ] On November 2, 2020, Justice Ann Smith advised counsel of CJ Deborah Smith’s decision in Brown v. NSAHO Ltd Plan , 2020 NSSC 301 which was issued on October 23, 2020. Justice Ann Smith offered a re-hearing in light of the reasons in Brown , as no order had been taken out and she was not functus officio . [ 26 ] At a December 7, 2020, pre-trial conference, Justice Ann Smith held that Dr.

Yabsley’s report in full was admissible as a treating physician’s narrative . [ 27 ] The December 11, 2020 , order of Justice Ann Smith reads in the recitals: “Whereas Dr. Reginald Yabsley prepared a medical report on July 23, 2013, after examining the Plaintiff John Robichau; and whereas Dr. Yabsley has since passed away; and upon motion of the Defendant, Thomas Prescott, seeking an order to have the report written by Dr.

Yabsley admitted into evidence as an expert report pursuant to Civil Procedure Rule 55.14, or alternatively, under the principled exception to hearsay ; And whereas the Plaintiff does not contest the motion save for one sentence in the report which states: ‘I don’t see that the accident has caused any change or alteration in what otherwise might have come to happen with regard to his neck – he does have pre-existing degenerative disease.’ … It is hereby ordered that: 1 - the report of Dr.

Yabsley will be admitted into evidence at trial as an expert report pursuant to Civil Procedure Rule 55.14; 2 - costs for the motion are payable in the cause.” [ 28 ] The order is clear – the report of Dr. Yabsley, and specifically his opinion about causation, was admissible pursuant to the provisions of CPR 55.14 . [ 29 ] The Defendant in his November 6, 2020, supplementary brief to Justice Ann Smith, and in support of his August 13, 2020, notice of motion, had argued that Dr. Yabsley’s report was a TPN. Significantly, he also argued in his brief: “On July 23, 2013, Dr.

Yabsley authored his report… [His] report and opinion are relevant to the issues raised in this proceeding;

whether the Plaintiff suffers from neck pain due to the accident… Moreover, the notice requirement under Rule 55.14 has been met. The Plaintiff disclosed Dr. Yabsley’s report to the Defendant in his affidavit Disclosing Documents in April 2016 shortly after the pleadings closed. Since then, the Plaintiff has provided Dr. Yabsley’s report to his retained experts to provide rebuttal opinions, which have been filed with the Court. The Plaintiff was able to fairly prepare for the trial and retain experts to rebut Dr. Yabsley’s opinion.… it is respectfully submitted that Dr.

Yabsley’s report meets the requirements as a treating physician’s narrative and should be entered into evidence without any redactions.” [3] [ 30 ] Although perhaps he could have, the Plaintiff reasonably did not contest the Defendant’s Yabsley report motion on the basis that the 30 days-after-pleadings notice requirement under Rule 55.14 had not been met.

In those circumstances, the Plaintiff had already retained experts to provide rebuttal opinions which had been filed with the court. [ 31 ] The present circumstances of this motion however are different. [4] [ 32 ] This matter is scheduled for trial by jury on January 4, 2022. [ 33 ] While pending the January 4, 2021 trial, in December 2020, Plaintiff’s counsel did agree to review its TPNs and identify/ ”deliver” them for the Defendant’s response.

With the adjournment of that trial shortly thereafter, to January 2022, Plaintiff’s counsel turned their attention to other matters and only advised the Defendant on or about August 17, 2021, that he intended to rely on the 21 chart notes of Drs. Dill and Segato (collectively) as TPNs at the January 4, 2022 trial (para. 17 of the October 4, 2021, affidavit of Karen Bennett-Clayton). [5] Are the 21 TPNs admissible? [ 34 ] The Defendant in his brief puts the issue as follows: “Whether the chart notes of Dr. Dill and Dr.

Stegato, dated before the action was commenced and disclosed more than 30 days after the pleadings closed [November 17,2015] are admissible into evidence as treating physician’s narrative under CPR 55.14?” [ 35 ] I must ask myself: Given that the 21 TPNs were late-delivered on or about August 17, 2021, per CPR 55.14(2)(a), are they precluded from being admissible? [ 36 ] The Defendant put his position as follows: “Chief Justice Smith [ in Brown ] held that if the strict deadlines are not met, the court must exclude the opinion evidence” [citing paragraphs 43 and 47]. [ 37 ] In paragraph 43 Chief Justice Smith stated: “ This ensures that an opposing party is aware, very early in the proceeding, of the opinions of the party’s treating physicians … strict deadlines are given for the delivery of physicians’ narratives… The burden is placed on the party seeking to introduce physician’s narratives to satisfy the court that the opposing party received sufficient information about the opinion and the material facts upon which it is based , to allow the opposing party to determine whether to retain an expert to assess the opinion and prepare adequately for cross-examination of the physician .

If this burden is not met, the court must exclude the opinion evidence (see Rule 55.14(6).” [ 38 ] However, as Justice Chipman noted in Stroh v Blakeney , 2020 NSSC 327 : 14 At para. 28 in Brown the following is stated: 28 In my view, when a judge sets a clear deadline at a Date Assignment Conference, that deadline supersedes any other relevant deadline contained in the Rules. The deadline set by the judge is not aspirational. It is not a target date or a goal for counsel to attempt to achieve. It is a deadline by which a party must act.

However, the effect of missing the deadline may vary depending upon the original deadline set out in the Rules. For example, a party who misses a judge's deadline in relation to physicians' narratives but who has the narratives delivered to the other side prior to the Finish Date is likely to be in a better position than a party who misses both the judge's deadline and the Finish Date. [emphasis added]

15 In the context of this motion I adopt a similar sentiment. That is to say, a party who misses a judge's deadline in relation to the filing of an expert report but who delivers the expert report prior to the FD is likely to be in a better position than a party who misses both the judge's deadline and the FD. 16 In Brown the Chief Justice ultimately permitted the plaintiff's preliminary motion to rely on the physicians narratives, even though she missed the DAC deadline. … 20 The Court has discretion to allow the admission of late-filed expert reports in the interest of justice ( see Nichols v.

McGillis , 2019 NSSC 85 (N.S. S.C.) ). Both parties referred the Court to Justice Brothers' decision in Nichols , the most recent and relevant statement of the law as it pertains to the late admission of an expert report in Nova Scotia. 21 In Nichols , Justice Brothers held at para. 33 that " exceptional circumstances" must be shown by a defaulting party in order to show that it is in the interest of justice to allow a late expert report.

There is no closed list of exceptional circumstances set forth in the case law. 22 In Nichols , at the DAC, the defendants indicated that they might engage a forensic accounting expert to produce a report. They ultimately chose not to produce a report from a forensic accounting expert.

Nevertheless, the plaintiff stated at the DAC that they intended to rely on the defence expert (as he was also the plaintiff's preferred expert) and so did not otherwise retain their own expert. 23 After a review of the existing jurisprudence on the issue, the Court found that there were three core considerations that must be met for a late report to be accepted: (

a) Probative Value: The plaintiff asserted that the report was necessary to the proper advancement of his claim. In assessing the probative value of the report, Justice Brothers found that although she could not make comments on the appropriateness of the underlying assumptions upon which the report was constructed, if those assumptions were accurate, the information contained in the report would be on-point and probative to the issues. (

b) Interest of Justice: In considering whether it was in the interest of justice to allow the report, the Court found that "while it may be a mistake to wait and see what, if any, report will be produced by the defendants in the face of having the burden to prove one's case, this [shared view on the proper expert and the plaintiff's satisfaction to rely on that expert] does, in this particular situation, create an exceptional circumstance". Justice Brothers also noted that where the plaintiff had properly filed four other expert reports in advance of the deadline, it showed diligence on their part.

As such, it was in the interest of justice to allow the report as to not prejudice the plaintiff's claim. (

c) Prejudicial Effect: The defendants argued that they would be prejudiced because they would be put to the greater expense to retain an expert in response and will spend extra time preparing for a cross-examination and preparing a rebuttal witness.

Justice Brothers found that where the defendants only raised adjournment, extra time required and costs as sources of prejudice, that costs could be dealt with easily, and that it was not clear if an adjournment would even be required as the defendants still had three months under the Rules to produce a rebuttal report (and the information in the plaintiff's late report had long since been disclosed to the defendants), and any need for an adjournment could be remedied by costs. [My bolding added] [ 39 ] Rule 55.14 (6) reads:

(6) A judge who presides at the trial of an action, or the hearing of an application, or who makes a determination under Rule 55.15 must exclude expert opinion evidence of a treating physician who provides a narrative instead of an expert’s report, unless the party offering the evidence satisfies the judge that the other party received information about the opinion, and about the material facts upon which it is based, sufficient for the party to determine whether to retain an expert to assess the opinion and prepare

adequately for cross-examination of the physician . [ 40 ] Chief Justice Smith in Brown went on to state: 95 The effect of the late delivery of a document involves an analysis of Rule 55.14(2) rather than Rule 55.15. 96 The physician's narrative exemption to the general rule that a party may not offer an expert opinion unless an expert's report is filed with the court (Rule 55.02) is designed to assist parties in advancing relevant evidence in a cost-efficient manner .

In many ways, it reflects the goals of proportionality referred to Hryniak , supra , even though the Rule was adopted a number of years prior to that case being decided. 97 Rule 55.14 is unique in the sense that it allows a party to introduce opinion evidence without following the requirements of Rule 55.04 and without giving the opposing party a chance to discover or submit interrogatories to a treating physician prior to trial. As indicated previously, it involves a set of checks and balances designed to ensure trial fairness.

One of these balances is the strict requirement that physicians' narratives must be delivered no more than 30 days after the date the pleadings close if treatment occurs before the action is started. In this case, the Plaintiff did not meet this strict deadline. 98 The court should be reluctant to ignore these checks and balances without good reason. The rules of court are developed for a reason. They help to ensure the just, speedy and inexpensive determination of a proceeding (see CPR 1.01).

If the Rules are ignored these goals are less likely to be accomplished. 99 Parties must comply with Rule 55.14(2) if they want to use physicians' narratives at trial particularly when I have not been given any reason for the Plaintiff's failure to comply with this Rule.

While there may be exceptional circumstances that would warrant the court allowing the use of a document as a physician's narrative even though the timelines in this Rule have not been met, I am unable to conclude that such circumstances exist here 100 The Plaintiff is not able to rely on this document as a physician's narrative at trial. … CONCLUSION 104 It is important to remember that this is an advance ruling under Rule 55.15.

The purpose of the motion is to determine whether a proposed physician's narrative contains sufficient information to permit a treating physician to testify to an opinion stated in a narrative without delivering an expert's report. At this stage, I am not concerned with issues such as hearsay, which will be dealt with at trial. 105 As I have indicated previously, I do not accept the suggestion that certain types of opinions, such as opinions on prognosis, are not permissible in a physician's narrative . There are no such limitations in Rule 55.14.

If a treating physician opines outside her area of expertise, that can be dealt with at trial. 106 Finally, I do not accept the Defendant's submission that if observations of fact cannot be discerned separately from a patient's self reporting, a record is not admissible as a treating physician's narrative . Civil Procedure Rule 55.14 contains no such limitation. A proposed narrative must contain the material facts upon which an opinion was based .

The Rule does not speak of objective facts or facts garnered from sources other than the patient. [My bolding added] [ 41 ] As Chief Justice Smith pointed out, in “exceptional circumstances” a court may allow as admissible late - delivered TPN’s per CPR 55.14(6).

[ 42 ] On the other hand, in her later decision in Downey , 2021 NSSC 147 , she stated: 22 It is important to note that Rule 55.14(4) does not allow for discovery of, or the delivery of interrogatories or written questions to, a treating physician who provides a narrative . Contrast this with Rule 55.11, which allows for discovery on consent and for written questions to be put to a Rule 55.04 expert. In my view, it would be unfair to a party if they received a medical/legal report from the opposing party and were unable to question the author of the report in any manner prior to the trial.

All of this suggests that treating physicians' narratives do not include medical/legal reports . 23 Rule 55.14 was intended to allow a party to rely on a narrative provided by a treating physician of the relevant facts observed, and the findings made by the physician during treatment. It was not intended to include medical/legal reports. … 52 Under Rule 55.15 a judge can make an advance ruling on whether a physician's narrative contains sufficient information to permit a treating physician to testify to an opinion stated in the narrative without delivering an expert's report.

Similarly, Rule 55.14 (6) states that a judge must exclude expert opinion evidence of a treating physician who provides a narrative instead of an expert's report, unless the party offering the evidence satisfies the judge that the other party received information about the opinion , and about the material facts upon which it is based sufficient for the party to determine whether to retain an expert to assess the opinion and prepare adequately for cross-examination of the physician.

In my view, the sentence that has been complained of contains fact — not opinion. … 56 There are a few preliminary observations to be made. First, the qualifications of a physician to express an opinion are to be dealt with at trial, not in an advance ruling under Rule 55.15 (see Rule 55.15(4)). Rule 55.15 is not to be used to obtain an advance ruling on the admissibility of an expert's opinion. As a result, I will not comment on whether Dr.

Douglas is qualified to express this opinion. 57 Further, when considering whether the Defendant received sufficient information about the opinion to decide whether to retain an expert and prepare for cross-examination, the court should not view the statement or sentence in question in isolation. Rather, the court should take an holistic approach and consider the physician's entire report or reports. 58 Finally, it must be remembered that a treating physician's narrative is not intended or expected to be as detailed and comprehensive as an expert's report under Rule 55.04(1).

That rule requires an expert to include in his or her report everything that the expert regards as relevant to the expressed opinion and everything that could reasonably lead to a different conclusion (Rule 55.04(1)(c)). That same requirement does not exist for a treating physician's narrative. The rules relating to opinion evidence are relaxed for treating physician's narratives. The physician's narrative exception is designed to allow treating physicians to offer opinions developed during medical treatment without the burden, cost, delay and formality associated with a Rule 55.04 report.

It is designed to help ensure access to justice (see the comments of Keith, J. in Ogilvie v. Windsor Elms Village for Continuing Care Society , 2019 NSSC 349 ). 59 At the same time, however, trial fairness must be maintained. It must be remembered that a treating physician who has prepared a narrative is not subject to a discovery subpoena, interrogatories, written questions or an order for discovery (Rule 55.14(4)). As a result, the first opportunity that opposing counsel will have to question the expert about his or her opinion is at the trial itself.

It is for this reason that the party who wishes to rely on a treating physician's narrative must satisfy the court that the other side has received sufficient information about the opinion to determine whether to retain an expert and prepare adequately for cross- examination. [My bolding added] Conclusion [ 43 ] I conclude there are exceptional circumstances here.

[ 44 ] Counsel for the Plaintiff reasonably concluded that until December 2020 ( Brown ), the jurisprudence strongly suggested that the 21 TPNs herein were not admissible on substantive grounds (see para. 17 of Laura Neilan’s affidavit). [ 45 ] All the TPNs in dispute were disclosed to the Defendant on April 11, 2016, in an Affidavit Disclosing Documents. [ 46 ] I am satisfied that both parties reasonably believed that the jurisprudence prevailing strongly suggested that 21 TPNs at issue herein would not be admissible until December 2020, after Justice Ann Smith’s decision, when they became aware of the wholesale change in the jurisprudence. [ 47 ] This jurisprudential change imbued both parties with knowledge that the TPNs previously thought to be inadmissible were likely now admissible, and required them to act accordingly. [ 48 ] The January 4, 2021, trial-date was quickly approaching.

Moreover, the onus to establish the preconditions for the admissibility of the TPNs was on the Plaintiff. [ 49 ] Ms. Neilan stated in her affidavit: “In a phone call with Justice Smith on December 7, 2020, the issue was raised that the Plaintiff had agreed to redact opinions on causation prior to the decision in Brown , but that the law had since changed. The parties agreed that the rules in Brown applied and would govern the use of treating physician narratives going forward . I recall this discussion and my notes reflect this agreement.

I have ordered a recording of the phone call which I do not yet have possession of. Justice Smith directed me to identify all treating physician’s narrative with Brown in mind. Shortly after this phone call, the trial scheduled for January 2021 was adjourned by consent of both parties due to rising Covid cases and the promise of the vaccine in the next year. Thereafter, I did not identify treating physician’s narratives as I knew it was likely that the trial judge would no longer be Justice Smith …. On August 16, 2021, I wrote to Ms.

Bennett-Clayton identifying each narrative on which the Plaintiffs sought to rely … On August 26, 2021, Ms. Bennett-Clayton wrote back to advise that the Defendant objected to all narratives sought to be relied upon by the Plaintiff, citing the fact that the Plaintiff had not identified these narratives within 30 days after the close of pleadings.” [My bolding added] [ 50 ] Ms. Bennett-Clayton in her affidavit stated: [6] “On or about December 7, 2020, I attended a pre-hearing teleconference with Mr. Neilan and, my associate Sara Nicholson and the Hon. Justice Ann Smith.

I have reviewed my handwritten notes from the prehearing conference. Multiple issues were discussed including the motion with respect to the admissibility of Dr. Yabsley’s report, the proposed jury questions as well as the potential impact of the Covid 19 pandemic on the trial. … We also discussed the applicability of Brown to the chart notes that the Plaintiff intended to rely on as treating physician’s narratives at trial. Ms.

Neilan advised that she would review the chart notes that the Plaintiff intended to rely on in light of the recent Brown decision . ” [My bolding added] [ 51 ] In the circumstances of this case, earlier communications between counsels and those as late as on or about August 17, 2021, collectively alerted both to reconsider the requirement in CPR 55.14(6) whether the Defendant has been given sufficient notice that he can be considered to have “received information about the opinion, and about the material facts upon it which it is based, sufficient for the [Defendant] to determine whether to retain an expert to assess the opinion and prepare adequately for cross-examination of the physician”. [ 52 ] The Plaintiff’s late specific confirmation of his intended reliance at trial upon the 21 TPNs has not been argued as creating an insurmountable unfairness in relation to the Defendant’s ability to sufficiently respond at trial. [ 53 ] The Defendant objected solely on the basis of a failure to adhere to the timeline in CPR 55.14(2)(a). [7] [ 54 ] Plaintiff’s counsel states in her Reply brief: “The Plaintiff identified the relevant TPN’s well before the Finish Date.

The Defendant is entitled to seek a rebuttal opinion pursuant to Rule 55.14(3). Rule 55.03(2) says that a rebuttal expert report may be filed within three (3) months of receiving that opinion. The TPN’s were specifically identified on August 16, 2021. The Defendant still has time to obtain a rebuttal opinion if he wishes to do so (the rebuttal report would be due on November 16, 2021, or such other deadline as imposed by Your Lordship). The Plaintiff will, of course, not object to the report on the basis that the Finish Date has passed.

There is no prejudice to the Defendant in the circumstances.” [ 55 ] The Defendant’s concern about the late delivery of these TPNs can be remedied by him having sufficient notice to retain a

rebuttal expert and prepare adequately for cross-examination at trial. [ 56 ] The Plaintiff has stated he will not object to what would otherwise be late filing of a rebuttal opinion. I am prepared to consider the Defendant’s suggestions as to how late a deadline he requires in order to respond with a rebuttal report, and direct that he advise the court in this respect in writing by no later than one week after the release of this decision. [8] [ 57 ] In these exceptional circumstances, I am satisfied that the Plaintiff should have the benefit of CPR 55.14(6). [9]

Summary of decision [ 58 ] I rule the TPNs admissible at trial. I will wait to hear from the Defendant regarding whether he intends to file a rebuttal report, and the timing thereof. [ 59 ] I direct that if they are unable to agree in relation to this motion, the parties file brief written submissions on costs by two weeks after the release of this decision.

Rosinski, J. [1] Notably, although CPR 55.14 allows for the introduction of “expert” evidence via TPNs, (for pre-commencement of the action TPNs if “delivered” within 30 days of close of pleadings; thereafter within a reasonable time after treatment is provided and by no later than the finish date) including the possible filing of CPR 55.05 rebuttal expert reports (“within a reasonable time”), those timelines are independent of and stand in contrast to those in relation to the more fulsome “expert” reports contemplated by CPR 55.03, which requires initial filings no later than six months before the finish date or a deadline set by a judge, and for rebuttal reports no more than three months after the day an initial expert’s report is delivered, or by a deadline set by a judge. [2] The court does respond from time to time by introducing amendments to the Rules to address such concerns. [3] As to the chronology see the affidavit of Sara D.

Nicholson sworn August 13, 2020. In Robichau v Prescott , 2020 NSSC 295 , Justice Ann Smith stated in her October 15, 2020 decision reasons regarding the admissibility of Dr. Edvin Koshi’s reports: “… I note that the Plaintiff was successful on another motion brought by the Defendant to have a report authored by Dr. Reginald Yabsley admitted as a physician’s narrative ( Rule 55.14). I gave an oral decision on that motion on October 15, 2020 . The report was found to constitute a physician’s narrative. I directed that one paragraph where Dr.

Yabsley opined on causation was to be deleted because it was outside the scope of a physician’s narrative .” As stated elsewhere, on December 7, 2020, as a result of the reasons in the Brown decision, Justice Smith reversed her position. [4] While I recognize that Dr.

Yabsley’s report is more fulsome than the “chart notes” in issue presently, as CJ Smith points out in Downey at paras. 22-23 : “[TPNs] do not include medical/legal reports”. [5] The trial readiness conference hearing is scheduled for October 29, 2021. [6] I have also accessed the December 7, 2020, court log referenced by counsel, as exhibited to the affidavit of Kim Whitman. [8] I have also considered the potential prejudice to the Plaintiff if the TPNs are ruled inadmissible and likewise appreciate that courts should be reluctant to excuse non-compliance with the Rules, particularly where the other party may consequently suffer serious prejudice. [9] The Plaintiff also argued that the court could consider excusing the failure to comply with CPR 55.14(2)(

a) pursuant to CPR 2.02 and 2.03. In doing so he also relies upon the admonition of Justice Goodfellow in Noseworthy v Murphy [1999] NSJ. No 79 that: “Civil procedure rules are our tools, not our Masters. The opinions expressed by a plaintiff’s primary treatment providers, contemporaneously during treatment, before litigation has even been contemplated, are arguably the most valuable, objective and trustworthy opinions that exist in a personal injury case.

The jury should not be deprived of reviewing these opinions because of a short delay on the part of the plaintiff’s counsel in disclosing those opinions to defence counsel. To do so would not do justice between the parties”. Obviously, each case must be judged on its merits, and in accordance with the present Civil Procedure Rules. I note the distinction between CPR 55.14(2) (

a) which mandates a delivery time period of no less than 30 days after the pleadings close by a party , and which allows a court to consider resort to CPR 2.03(3), whereas Rule 55.14(6) mandates that a judge must exclude expert opinion evidence of a treating physician, “ unless the party offering the evidence satisfies the judge that the other party received information about the opinion, and about the material facts upon which it is based, sufficient for the party to determine whether to retain an expert to assess the opinion and prepare adequately for cross-examination of the physician ”.

Although 55.14(6) cannot be overridden by CPR 2, the exclusion of evidence thereunder can be obviated if the party in breach satisfies the court that there is no substantial unfairness arising therefrom.