Supreme Court of Nova Scotia
Citation: Brown v. Nova Scotia Association of Health Organizations Long Term Disability Plan, 2020 NSSC 301
Date: Oct. 23rd, 2020
Docket: Hfx. No. 470272
Registry: Halifax
Between:
Melissa Jane Marie Brown
Plaintiff/Respondent
v.
Nova Scotia Association of Health Organizations Long Term Disability Plan
Defendant/Applicant
Library Heading
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Judge: |
The Honourable Chief Justice Deborah K. Smith |
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Heard: |
September 24th & October 14th, 2020, in Halifax, Nova Scotia |
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Written Decision: |
October 23rd, 2020 |
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Subject: |
Physicians’ Narratives. |
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Summary: |
Long term disability claim. At a Date Assignment Conference the judge set a date by which the Plaintiff would identify all treating physicians’ narratives that she intended to rely on at trial. The Plaintiff failed to comply with that direction but did identify the treating physicians’ narratives by the Finish Date. The Defendant objected to all physicians’ narratives on the basis that (1) the directions of the Date Assignment Conference judge had not been complied with and (2) none of the documents fulfilled the criteria for physicians’ narratives. |
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Issues: |
(1) Does a deadline imposed at a Date Assignment Conference supersede any deadlines contained in the Rules? (2) Is the Plaintiff precluded from relying on the proposed physicians’ narratives due to the fact that she failed to comply with the directions given at the time of the Date Assignment Conference? (3) In any event, is the Plaintiff able to rely on the documents as treating physicians’ narratives at trial? |
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Result: |
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 a target date or a goal that counsel will attempt to achieve. It is not aspirational. It is a deadline by which a party must act. In this case, the Plaintiff’s solicitor was under the mistaken belief that the Date Assignment Conference judge had set a target date for him to meet but that the ultimate deadline remained the Finish Date as set out in the Rules. In these circumstances, the court found that the Plaintiff should not be precluded from relying on physicians’ narratives solely because she missed the court’s deadline. The court went on to determine which of the proposed documents could be used by the Plaintiff as physicians’ narratives. The court held that a treating physician’s narrative is a narrative that was written for the predominant purpose of treating a patient. Some documents may have a dual purpose. Provided the document was prepared for the predominant purpose of medical treatment, it will be considered to be prepared during treatment. The court noted that there is nothing in Civil Procedure Rule 55.14 that limits the types of opinions that can be included in a treating physician’s narrative. As indicated, 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 is based, sufficient for that party to determine whether to retain an expert and prepare adequately for cross-examination of the physician. The court reviewed each document presented and ruled on whether the Plaintiff would be able to use it as a physician’s narrative at trial. |
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
Citation: Brown v. Nova Scotia Association of Health Organizations Long Term Disability Plan, 2020 NSSC 301
Date: Oct. 23rd, 2020
Docket: Hfx. No. 470272
Registry: Halifax
Between:
Melissa Jane Marie Brown
Plaintiff/Respondent
v.
Nova Scotia Association of Health Organizations Long Term Disability Plan
Defendant/Applicant
|
Judge: |
The Honourable Chief Justice Deborah K. Smith
|
|
Heard: |
September 24th & October 14th, 2020, in Halifax, Nova Scotia
|
|
Written Decision: |
October 23rd, 2020
|
|
Counsel: |
David G. Hutt/David A. W. Lasaga, for the Applicant/Defendant
Farhan Raouf, for the Respondent/Plaintiff
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By the Court:
BACKGROUND
[1] Melissa Brown has brought an action against the Nova Scotia Association of Health Organizations Long Term Disability Plan for disability benefits and other relief. Her Notice of Action was filed on November 10th, 2017. A Defence was filed on January 9th, 2018.
[2] On August 9th, 2018 the Plaintiff filed a request for a Date Assignment Conference. In the form filed in support of this request, Plaintiff’s counsel indicated that he intended to introduce “Narrative reports from treating physicians” at trial as well as “Opinion reports from experts”. In the witness chart prepared by the Plaintiff’s solicitor there was an indication that the Plaintiff’s family physician, Dr. Susan Haddad, would be presented as a treatment provider to give opinion evidence pursuant to Civil Procedure Rule 55.14 (6). There was no indication by the Plaintiff that additional physicians’ narratives would be relied on.
[3] On September 4th, 2018 counsel for the Defendant filed a Memorandum for the Date Assignment Conference judge. That Memorandum contained the following:
Opinion Evidence:
For any treating physicians called by the plaintiff to attest to treatment records containing opinion per Rule 55.14, the defendant requests directions requiring the plaintiff, by a reasonable date – certain:
• to identify each specific opinion upon which it intends to rely, and
• to identify the material facts upon which each such opinion is based,
sufficient for the defendant
• to determine whether to retain experts to assess the opinions, and
• to prepare adequately for cross-examination of the physicians.
[4] A Date Assignment Conference was held with Justice Heather Robertson on November 23rd, 2018. Mr. Raouf participated on behalf of the Plaintiff and Mr. Hutt participated on behalf of the Defendant. At the Date Assignment Conference, Justice Robertson set trial dates of June 1-4, 8-11 and 15-16, 2020 and set the Finish Date as April 3rd, 2020. The Date Assignment Conference memorandum indicated that the Plaintiff and the Defendant both anticipated having four expert witnesses. Under s. 5(c) of the Date Assignment Conference memorandum under the heading “Any treating physician’s narratives?” the following is written “Family Physician for Plaintiff”.
[5] Under s.9 of the said Memorandum is the following:
COMPLETION DATES FOR SPECIFIC TASKS:
Will follow Civil Procedure Rules
Family Physician narrative by April 30, 2019
Reply from defence re any objections by May 31, 2019
[6] In my view, there is some contradiction between the first line which indicates that the parties will follow the Civil Procedure Rules and the second line which indicates that “Family Physician narrative” [will be identified] by April 30th, 2019. I am satisfied, however, that the intention was that the Plaintiff’s physicians’ narratives would be identified for the Defendant by April 30th, 2019 and any objections to the physicians’ narratives would be given by the defence by May 31st, 2019. All other matters would follow the Civil Procedure Rules. The Date Assignment Conference Memorandum is silent as to whether the Plaintiff had to identify each specific opinion upon which she intended to rely, as well as the material facts upon which each such opinion is based, as requested by the Defendant.
[7] The Plaintiff’s solicitor did not forward any physicians’ narratives to the Defendant’s solicitor by the April 30th, 2019 deadline imposed by Justice Robertson. Rather, by letter dated March 18th, 2020 (over 10 months after the deadline set by the court) the Plaintiff’s solicitor provided the Defendant’s solicitor with over 130 pages of documents prepared by numerous physicians along with the advice that the Plaintiff intended to rely on some of these documents at trial as physicians’ narratives under Civil Procedure Rule 55.14.
[8] Counsel for the Defendant objected to the use of these documents as physicians’ narratives on the basis that they were identified by Plaintiff’s counsel outside of the deadline imposed by the court at the time of the Date Assignment Conference. The Defendant reserved the right to raise specific objections to the documents themselves in the event that it was unsuccessful on this preliminary issue.
[9] A hearing was then scheduled for May 6th, 2020 for a motion pursuant to CPR 55.15 (advance ruling on physicians’ narratives). That motion, as well as the trial, were subsequently adjourned by the court as a result of the COVID-19 global pandemic. In June 2020, the trial was rescheduled to commence December 7th, 2020.
[10] On July 6th, 2020 a telephone conference was held with counsel. The Defendant’s solicitor advised the court that there were 34 documents in dispute as physicians’ narratives totalling over one hundred pages. Mr. Hutt indicated that he objected to all of these documents being used as physicians' narratives due to the Plaintiff's failure to abide by Justice Robertson's direction. The court suggested (and counsel agreed) that it was prudent to hear a preliminary motion on whether the Plaintiff should be precluded from relying on physicians’ narratives as she had missed the deadline set at the Date Assignment Conference. If the Defendant was successful with this preliminary motion, the matter would end. If the Plaintiff was successful, a further motion would be heard to deal with the specific objections raised by the Defendant in relation to each particular document.
[11] I heard this preliminary motion on September 24th, 2020. I gave an oral “bottom line” decision the following day indicating that the Plaintiff was not precluded from relying on physicians’ narratives at trial due to the fact that she missed the deadline set at the Date Assignment Conference. In addition, I ordered that the Defendant could re-discover the Plaintiff on the proposed physicians’ narratives. Finally, I allowed the Defendant to file a rebuttal report to any of the physicians’ narratives as permitted by CPR 55.14 (3). I indicated that my written reasons would follow.
[12] On October 14th, 2020, I heard the second motion dealing with the Defendant’s specific objections to the narratives themselves.
[13] These are the reasons for my decision arising from the September 24th, 2020 hearing (the Preliminary Motion) as well as my conclusions arising from the October 14th, 2020 hearing (the Main Motion).
PRELIMINARY MOTION
[14] The Defendant argues that it has been prejudiced by the Plaintiff’s failure to meet the deadline set at the Date Assignment Conference to advise which physicians’ narratives she will be relying on at trial. In particular, the Defendant suggests that if the Plaintiff is permitted to rely on the proposed physicians’ narratives, it would be deprived of a fair opportunity to respond to this evidence. The Defendant noted that it asked for an early disclosure date for a reason. It wanted adequate time to file expert evidence in reply should it elect to do so. It says it lost this opportunity when the Plaintiff failed to abide by Justice Robertson’s direction.
[15] Further, the Defendant notes that it conducted a second discovery examination of the Plaintiff in February 2020. The proposed physicians’ narratives were not identified by the Plaintiff’s solicitor until the next month. Mr. Hutt submits that if Justice Robertson’s deadline had been met, he would have been able to focus on the proposed narratives during this second discovery examination of the Plaintiff.
[16] Counsel for the Defendant refers me to the decisions in Conrad v. A.F.L. Manufacturing Limited, 2018 NSSC 52 and Corkum v. Sawatsky et al., (1993) 118 N.S.R. (2d) 137 (S.C.T.D.), varied on other grounds at 126 N.S.R. (2d) 317 (C.A.), and suggests that the Plaintiff has to establish exceptional circumstances in order to rely on the physicians’ narratives at this late date.
[17] Mr. Raouf acknowledges that the Plaintiff did not identify the opinions that she intends to rely on, or the material facts upon which the opinions were based, by the April 30th, 2019 deadline imposed by Justice Robertson. However, he submits that the Plaintiff has complied with the obligations placed upon her under the Civil Procedure Rules and Civil Procedure Rule 55.14 (2) in particular.
[18] Further, counsel for the Plaintiff notes that the Defendant has also breached timelines in this proceeding. He refers to the fact that two of the Defendant’s expert reports were filed roughly six months after the deadline imposed by the Rules. He indicates that if the Plaintiff’s proposed physicians’ narratives are excluded on the basis that she did not comply with Justice Robertson’s direction, he reserves the right to bring a motion to exclude the Defendant’s experts' reports on the same basis.
[19] During the hearing, it became clear that there is some confusion as to exactly how many documents the Plaintiff wishes to rely on as physicians’ narratives at trial. Counsel for the Plaintiff has now confirmed that he is only seeking to admit twelve documents as physicians’ narratives totalling thirty-two pages.
LAW AND ANALYSIS – PRELIMINARY MOTION
[20] The operative Rule for our consideration is Civil Procedure Rule 55 and Rule 55.14 in particular. Rule 55.14 (1) and (2) provide as follows:
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.
[emphasis added]
[21] Civil Procedure Rule 55.14 (2)(c) is not applicable in this case as we are dealing with an action rather than an application.
[22] Counsel for the Plaintiff points to the wording of this section and questions whether the court has the power to set a deadline for the filing of physician’s narratives in an action (as opposed to an application). He refers to CPR 55.03 (1) which provides:
55.03 Deadline for filing report
(1) A party to an action who wishes to offer an expert opinion, other than in rebuttal of an expert opinion offered by another party, must file the expert’s report no less than six months before the finish date, or by a deadline set by a judge.
[Emphasis added]
[23] Similar words are found in Rule 55.03 (2) which provides:
(2) A party to an action who receives an expert’s report stating an opinion the party contests, and who wishes to offer a rebuttal expert opinion, must file a rebuttal expert’s report no more than three months after the day the expert’s report is delivered to the party, or by a deadline set by a judge.
[Emphasis added]
[24] Similar words are not used in CPR 55.14 in relation to physicians’ narratives to be used in an action. Nevertheless, in my view, at a Date Assignment Conference, a judge has the power to set deadlines for the performance of certain functions, including the filing of physicians’ narratives in an action. I refer, in particular, to CPR 2.03 (1) which provides:
General judicial discretions
2.03 (1) A judge has the discretions, which are limited by these Rules only as provided in Rules 2.03(2) and (3), to do any of the following:
(a) give directions for the conduct of a proceeding before the trial or hearing;
……………….
(c) excuse compliance with a Rule, including to shorten or lengthen a period provided in a Rule and to dispense with notice to a party.
[25] Reference is also made to CPR 4.16 (6)(d) which provides:
Date Assignment Conference
………………
4.16 (6) The judge who is able to forecast trial readiness and estimate the length of a trial may give directions about the course of the proceeding and the conduct of the trial, and must do each of the following:
………………
(d) fix a completion date for any specific task, if the judge considers that a deadline is advisable to ensure readiness for trial.
………………
[26] The deadlines set by the Date Assignment Conference judge may be different than those set out in the Civil Procedure Rules.
[27] During the September 24th, 2020 hearing, the issue arose as to whether Justice Robertson’s deadline superseded the deadlines for the filing of physicians’ narratives under the Rules. Mr. Hutt takes the position that it did. Mr. Raouf says that the date set by Justice Robertson was a target date but that the actual deadline was the Finish Date as provided by Civil Procedure Rule 55.14 (2)(b).
[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.
[29] In this case, Mr. Raouf was under the mistaken belief that Justice Robertson set a target date for him to meet but the ultimate deadline remained the Finish Date. He missed Justice Robertson’s deadline but met what he viewed to be the ultimate deadline under Rule 55.14 (2)(b). In my view, in these circumstances, the Plaintiff should not be precluded from relying on her physicians’ narratives solely because she missed Justice Robertson’s deadline.
[30] The Rules clearly envision occasions when a physician’s narrative will not be received until the Finish Date (see CPR 55.14 (2)(b)). A party who receives a narrative may, within a reasonable time, file a rebuttal report that conforms with Rule 55.05 (see CPR 55.14 (3)). Mr. Hutt received the Plaintiff’s proposed physicians’ narratives prior to the Finish Date. He still has the ability to file a rebuttal report in response.
[31] While I do not condone the Plaintiff’s failure to follow Justice Robertson’s direction, in the circumstances of this case, I am not satisfied that the Plaintiff should lose the opportunity to use these documents as physicians’ narratives solely because she failed to identify them to Mr. Hutt within the timeline provided by the court. As indicated, she did identify them to the Plaintiff’s solicitor by the Finish Date. I am satisfied that Mr. Hutt still has time to retain an expert to file a rebuttal report if he wishes to do so. If he does not have time, I will give him time to do so. Accordingly, the Defendant’s preliminary motion relating to the physicians’ narratives is denied.
[32] As indicated previously, counsel for the Defendant relied on the decisions in Conrad v. A.F.L. Manufacturing Limited, supra, and Corkum v. Sawatsky et al., supra, in support of its position. It is notable that the Conrad case dealt with the filing of an expert’s report more than 16 months after the deadline set by the court and, importantly, 16 months after the deadline set out in the Civil Procedure Rules for filing experts’ reports. Similarly, Corkum involved an expert’s report that was filed after the deadline in the Rules and only 19 days prior to trial.
[33] In this proceeding, the Plaintiff has missed the deadline set by Justice Robertson but has identified her physicians’ narratives by the deadline set out in Civil Procedure Rule 55.14 (2). In my view, this distinguishes both the Conrad and Corkum decisions.
[34] Further, in this case, most of the documents that the Plaintiff wishes to rely on as physicians’ narratives were disclosed to the Defendant prior to the commencement of the litigation. I am not suggesting that disclosure equals notice of an intention to use these documents as physicians’ narratives. It does not. The reality, however, is that the Defendant is familiar with most of these documents as they were delivered to the Defendant before the lawsuit even began. Some have already been considered by the Defendant’s experts. That is very different from the situations in Conrad and Corkum where the reports had not previously been disclosed to the opposing parties.
[35] The Defendant should not be prejudiced by the Plaintiff’s failure to follow Justice Robertson’s directions. Had the Plaintiff identified her physicians’ narratives to the Defendant’s solicitor by the April 30th, 2019 deadline imposed by the court, Mr. Hutt could have focused on these documents at the Plaintiff’s discovery examination in February, 2020. I have therefore given him a further opportunity to discover the Plaintiff on the proposed physicians’ narratives should he wish to do so.
[36] During the preliminary motion, the question arose as to whether the Plaintiff was obliged to identify in each physician’s narrative the specific opinions that she intends to rely on as well as the material facts upon which each such opinion is based. In other words, is it sufficient for the Plaintiff to simply provide the Defendant with copies of each proposed physician’s narrative or must she go further and highlight each opinion she intends to rely on in each document as well as the material facts upon which each opinion is based.
[37] The rules relating to treating physicians’ narratives are designed to relax the rules relating to expert opinion evidence while, at the same time, ensure trial fairness. Civil Procedure Rule 55.14 is designed so that a party is not ambushed by physicians' narratives close to trial. Accordingly, it is important that a party who wishes to rely on physicians’ narratives identify them as such for the opposing party. It is not sufficient for a party to serve an Affidavit Disclosing Documents or a large volume of materials on another party and leave it to that other party to speculate or guess as to which documents will be relied on as physicians’ narratives. Counsel must clearly identify for the other party which particular documents they intend to rely on at trial as physicians’ narratives.
[38] Whether there is an obligation to further identify the specific opinions and material facts upon which the opinions are based will depend on the circumstances of each case. In my view, there is not an absolute obligation on a party to identify each specific opinion as well as the facts upon which the opinion was based in every document that is identified as a physician’s narrative. However, Civil Procedure Rule 55.14 (6) places the burden on the party who wishes to use a document as a physician’s narrative to satisfy the court that the other party received information about the opinion and 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. If the documents that are sent to an opposing party and identified as physicians’ narratives are not clear in this regard, that party runs the risk of the court excluding the opinion evidence of the treating physician at the time of trial.
[39] As I made clear to counsel at the hearing, this preliminary ruling relates solely to the Plaintiff’s failure to meet Justice Robertson’s deadline. Questions as to whether the Plaintiff provided the materials to the Defendant in accordance with CPR 55.14 (2) are dealt with on the Main Motion.
MAIN MOTION
[40] Counsel for the Plaintiff has clearly identified the twelve documents that his client wishes to use as physicians' narratives. The Defendant objects to all twelve documents arguing that none of them comply with Rule 55.14.
[41] Rule 55 deals generally with expert opinion evidence. Rule 55.14 describes a distinct exceptional category of opinion evidence. The drafters of the Rule recognized that a Rule 55.04 report can be time consuming and expensive and that a busy treating physician (such as a family doctor) may not be prepared to draft such a report. As a result, parties could be denied the opportunity to advance relevant opinion evidence from the doctors who are actually treating them. Rule 55.14 was designed to deal with this issue. It allows treating physicians to offer opinions developed during medical treatment without the burden, cost, delay and formality associated with a Rule 55.04 report. It was 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).
[42] Rule 55.14 is not intended to allow a party to obtain a medical/legal report without complying with Rule 55.04. Rather, it ensures that documents prepared by a treating physician during treatment can come before the court provided that the requirements of Rule 55.14 are met.
[43] Certain safeguards were built into the Rule to avoid unfairness and misuse. First, there are strict timelines for delivery of physicians’ narratives (see CPR 55.14 (2)). For example, for treatment that occurs before an action is started, physicians’ narratives must be delivered no more than thirty days after the day the pleadings close. This ensures that an opposing party is aware, very early in the proceeding, of the opinions of a party’s treating physicians.
[44] Further, care was taken to help ensure that the opinions that are expressed in a physician’s narrative are objective. An expert who provides a Rule 55.04 report is required to confirm that she is providing an objective opinion for the assistance of the court and is applying independent judgment (see Rule 55.04 (1)(a) and (b)). A similar requirement does not exist in relation to physicians’ narratives. This is due to the fact that Rule 55.14 only allows opinions generated during treatment to be contained in a physician’s narrative (see Rule 55.14 (1)). It is presumed that opinions given during treatment are likely to be objective and reliable.
[45] A treating physicians’ narrative is a document prepared by a treating physician during treatment. What does it mean to say that the narrative must be prepared during treatment? Too broad an interpretation would allow a medical/legal report to be considered part of treatment. This proposition was rejected by our court in Shaw v. J.D. Irving Ltd., 2011 NSSC 487. Too narrow an interpretation would, in my view, unnecessarily restrict the use of physicians’ narratives. As noted by Keith, J. in Ogilvie, supra, the use of physicians’ narratives is an access to justice issue.
[46] In my view, a narrative written during treatment is one written for the predominant purpose of treating the patient. Some documents may have a dual purpose. Provided the document was prepared for the predominant purpose of medical treatment, it will be considered to be prepared during treatment.
[47] Rule 55.14 contains a set of checks and balances designed to ensure trial fairness. A treating physician does not have to comply with the onerous requirements of Rule 55.04. In addition, a treating physician who has prepared a narrative is not subject to a discovery subpoena, interrogatories or written questions (see Rule 55.14 (4)). On the other hand, as indicated previously, strict deadlines are given for the delivery of physicians’ narratives. In addition, the burden is placed on the party seeking to introduce physicians’ 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)).
[48] Finally, a party who elects to use physicians’ narratives is restricted in the evidence that they can call from that physician at trial. In particular, the party may not advance evidence from the physician about a fact, finding or treatment not summarized in a narrative or covered in an expert’s report (see CPR 55.14 (5)).
[49] In this case, the burden is on the Plaintiff to satisfy me that the provisions of CPR 55.14 have been met.
[50] Counsel have referred me to a variety of decisions dealing with physicians' narratives. Mr. Hutt has referred me to Russell v. Goswell, 2013 NSSC 383; Bruce v. Munroe, 2016 NSSC 341 and Halliday v. Cape Breton District Health Authority, 2017 NSSC 201. Mr. Raouf has referred me to Shaw v. J.D. Irving Ltd., supra; Warnell v. Cumby, 2016 NSSC 356 and Wareham v. Ross, 2010 NSSC 141. Both counsel have referred me to Ogilvie v. Windsor Elms Village for Continuing Care Society, supra. In this latter case, Justice Keith reviewed the jurisprudence in this province on the issue of physicians' narratives noting that a number of the early cases were decided prior to the seminal Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7. After a detailed review of the Nova Scotia cases on physicians' narratives, Justice Keith concluded at ¶62:
[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 despatch.
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.
[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.
[53] Of course, at trial, it is open to an opposing party to argue that an opinion is outside of a physician’s area of expertise or that the opinion is inadmissible for some other reason. That is a matter that goes to the admissibility of the document at trial. In my view, it is not relevant at this stage where the court is simply determining whether the document qualifies as a treating physician’s narrative.
[54] I turn now to each document that the Plaintiff wishes to rely on as a treating physician’s narrative. For the benefit of the reader, I have attached the documents in question to this decision. Certain identifying information has been redacted from these documents by the court.
#1 Attending Physician's Report and Application for Sick Leave Benefits completed by Dr. Susan Haddad on April 27th, 2012
[55] This document appears to be a form submitted to the Plaintiff's employer in support of an application for sick leave benefits. It contains a series of typed questions that have been answered by the Plaintiff's family doctor.
[56] The Defendant submits that this form is not a proper physician's narrative as it was not completed "as part of therapy". Rather, it was completed for the purpose of the Plaintiff's employment. In addition, the Defendant suggests that this doctor does not set out any observations of fact underlying her opinions.
[57] The Plaintiff submits, inter alia, that a treating physician's narrative does not need to conform to any particular format or comply with pre-determined standards in terms of content (see Ogilvie v. Windsor Elms Village for Continuing Care Society, supra, at ¶62 (4)(a)). She notes that Justice Keith appears to have approved a similar type form in Ogilvie, supra.
[58] As to the suggestion that this document does not provide the doctor's observations of fact underlying her opinions, the Plaintiff submits that Rule 55.14 should not be applied strictly and that principles of fairness, equity, proportionality and a litigation "culture shift" should be kept in mind as per Hryniak, supra.
[59] The Plaintiff says that Dr. Haddad has been her family doctor since 2012. She says that this doctor prepared her narratives during the course of treatment for therapeutic purposes. She submits that the findings and observations that formed the basis of the doctor's opinions are sufficiently listed in the proposed narrative.
CONCLUSION
[60] This form appears to have been completed by the Plaintiff’s family doctor to support the Plaintiff’s claim for sick leave benefits. In my view, its predominant purpose was not for treating the Plaintiff.
[61] I appreciate that in Ogilvie, supra, Justice Keith allowed a document identified as an “Attending Physician’s Report” to be used as a physician’s narrative. It is unclear from that decision exactly what that document entailed. As indicated, the document before me appears to have been prepared to support a claim for sick leave benefits. These types of forms can lack the objectivity that the Court seeks in an expert’s report or physician’s narrative.
[62] In addition, this document is bereft of any facts which underlie the doctor's opinions. Dr. Haddad provides many opinions in this document, but the reader has no idea of the material facts or basis upon which her opinions are based.
[63] This document cannot be used by the Plaintiff as a physician's narrative at trial.
#2 Attending Physician's Report and Application for Sick Leave Benefits for NSGEU and Excluded Employees Form completed by Dr. Susan Haddad on May 24th, 2012
[64] This document is similar to #1 above.
[65] The Defendant submits that this form was completed for a purpose other than medical treatment. Again, it submits that the doctor has offered opinions which are unsupported by facts or observations. Finally, it submits that Dr. Haddad rendered an opinion on an impairment that is outside her "purview" as a treating physician.
[66] The Plaintiff has provided a general response to the Defendant's objections but has not given its position in relation to each particular document. The Plaintiff's responses to the Defendant's objections appear to be the same as set out in ¶¶ 57-59 above.
CONCLUSION
[67] This form also appears to have been completed by Dr. Haddad to support the Plaintiff’s claim for sick leave benefits. In my view, its predominant purpose was not for treating the Plaintiff.
[68] Again, this document is bereft of any facts which underlie the doctor's opinions. This insufficiency makes it impossible for the Defendant to determine whether to retain an expert to assess the opinions and prepare adequately for cross-examination of Dr. Haddad.
[69] This document cannot be used by the Plaintiff as a physician's narrative at trial.
#3 Health Association Nova Scotia Long Term Disability Attending Physician’s Statement completed by Dr. Susan Haddad on July 4th, 2012
[70] This is a form provided by the Defendant to their insureds for completion by the insured’s attending physician.
[71] The Defendant’s objections are similar to the objections made in relation to documents #1 and #2 above. The Defendant also notes that on the form the doctor has twice written the words “see attached consult notes” in response to particular questions, but the consult notes are not attached.
[72] The Defendant says that on page 5 of this form the doctor comments on prognosis and disability answering questions regarding the anticipated duration of restrictions and future return to work which, it submits, are inadmissible.
[73] The Plaintiff’s responses are as set out in ¶¶ 57-59 above.
CONCLUSION
[74] This form appears to be completed by the Plaintiff’s family doctor for the purpose of allowing the Plaintiff to obtain disability benefits. In my view, its predominant purpose was not for treating the Plaintiff.
[75] Further, while a number of opinions are expressed by Dr. Haddad in this document, the basis upon which she formed her opinions is not at all clear.
[76] This document cannot be used by the Plaintiff as a physician’s narrative at trial.
#4 Attending Physician’s Report and Application for Sick Leave Benefits for NSGEU and Excluded Employees completed by Dr. Susan Haddad on July 5th, 2012.
[77] This document is similar to #1 and #2 above. The Defendant’s objections are the same that were made in relation to those documents as is the Plaintiff’s response.
CONCLUSION
[78] In my view, this form was not prepared for the predominant purpose of treating the Plaintiff.
[79] In addition, this document contains opinions on the Plaintiff’s condition but does not disclose the material facts upon which the opinions were based.
[80] This document cannot be used by the Plaintiff as a physician’s narrative at trial.
#5 Attending Physician’s Report and Application for Sick Leave Benefits for NSGEU and Excluded Employees completed by Dr. Susan Haddad on August 2nd, 2012
[81] This document is similar to #1, 2 & 4 above. The Defendant’s objections are the same as those that were made in relation to those documents as is the Plaintiff’s response.
CONCLUSION
[82] This form appears to have been completed by the Plaintiff’s family doctor to support the Plaintiff’s claim for sick leave benefits. In my view, its predominant purpose was not for treating the Plaintiff.
[83] Again, Dr. Haddad gives certain opinions when completing this form but she does not set out the material facts upon which her opinions are based sufficient for the Defendant to determine whether to retain an expert to assess the opinions or prepare adequately for cross-examination of Dr. Haddad.
[84] The Plaintiff cannot use this document as a physician’s narrative at trial.
# 6 Clinical Note which appears to be a reproduction of a letter from Dr. Susan Haddad to Manulife Financial dated July 22nd, 2013
[85] As indicated in the title above, this chart note appears to be a reproduction of a letter that the Plaintiff’s family doctor wrote to Manulife Financial. I am advised that Manulife Financial administers the Defendant’s Long-Term Disability Plan.
[86] The Defendant submits that this document was not prepared for a “therapeutic purpose”. It suggests that this letter contains a summary of the Plaintiff’s self-reporting to her family doctor and contains no discernable observations made by Dr. Haddad herself.
[87] The Plaintiff’s responses are as set out in ¶¶ 57-59 above.
CONCLUSION
[88] This form appears to have been completed by the Plaintiff’s family doctor to assist the Plaintiff in her claim for disability benefits. In my view, its predominant purpose was not for treating the Plaintiff.
[89] The Plaintiff is not able to rely on this document as a physician’s narrative at trial.
# 7 Ambulatory Care Clinic letter from Dr. Anita Mountain to Dr. Susan Haddad dictated January 13th, 2015
[90] This document is dated prior to the date litigation commenced. The Defendant submits that it cannot be used by the Plaintiff as a physician’s narrative as it was not delivered to the Defendant within the timelines set out in Civil Procedure Rule 55.14 (2)(a).
[91] Further, the Defendant suggests that much of this document is based on the Plaintiff’s self-reporting and is “prognosis and speculation” which, it submits, is not permissible in a physician’s narrative.
[92] Mr. Raouf acknowledges that this document was not delivered to the Defendant within the timelines set out in CPR 55.14 (2)(a). No reason has been given for this failure. However, he notes that this document was provided to the Defendant prior to the Finish Date. He submits that the Defendant has had plenty of time to respond to this document and that it has not been prejudiced in any way by its late delivery.
CONCLUSION
[93] Both parties agree that the pleadings in this action closed on January 9th, 2018. Under the Rules, this document should have been delivered to the Defendant no more than thirty days after this date. A period of days in a Rule does not include (a) the day the period begins; (b) a Saturday and Sunday in the period; (c) a weekday the office of the prothonotary at Halifax is closed and (d) the day on which a thing is required … to be done (CPR 94.02). This means that this document should have been delivered to the Defendant by February 22nd, 2018 (the office of the prothonotary in Halifax having been closed on February 19th, 2018 due to a civic holiday).
[94] The Defendant says that it received this document with the Plaintiff’s Affidavit Disclosing Documents which was forwarded to the Defendant on April 12th, 2018. This means that the Plaintiff delivered this document to the Defendant seven weeks late.
[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 Hryniac, 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. 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, particularly when I have not been given any reason for the Plaintiff’s failure to comply with this Rule.
[100] The Plaintiff is not able to rely on this document as a physician’s narrative at trial.
# 8 Ambulatory Care Clinic Letter from Dr. Anita Mountain to Dr. Susan Haddad dictated June 9th, 2015
[101] The Defendant’s solicitor has advised the court that his client objects to the first two paragraphs of this document but does not object to the final two paragraphs.
[102] In relation to the first two paragraphs, the Defendant submits that Dr. Mountain has not provided any facts to support her statement that the Plaintiff has a history of persistent postconcussion symptoms following an injury in 2012. A similar comment is made in relation to Dr. Mountain’s conclusion that the Plaintiff “is continuing to do approximately the same”. It further submits that this statement appears to be based on the Plaintiff’s self-report. It suggests that if observations of fact cannot be discerned separately from self-reporting, the record is not admissible as a treating physician’s narrative. It goes on to suggest that this document contains hearsay and that it includes a prognosis for recovery which, it submits, is inadmissible.
[103] The Plaintiff’s responses are as set out in ¶¶ 57-59 above.
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.
[107] Of course, if a physician relies solely on what she is told by her patient, and the information provided by the patient is not borne out at trial, that will be reflected in the weight that is given to the treating physician’s opinion. In my view, however, it does not prevent the Plaintiff from using the document as a treating physician’s narrative.
[108] I turn now to the two paragraphs that are objected to by the Defendant.
[109] I am unable to determine from Dr. Mountain’s June 9th, 2015 report the material facts that she relied upon in order to reach the opinion that the Plaintiff suffered from persistent postconcussion symptoms or that, in June 2015, Ms. Brown was “continuing to do approximately the same”. It must be remembered that as per Rule 55.14 (4), the Defendant will not be able to obtain a discovery subpoena or deliver interrogatories or written questions to this physician. The first time that Mr. Hutt will be able to question Dr. Mountain will be at trial. It is for this reason that the physician’s narrative must set out the facts that the physician relied upon when rendering her opinion.
[110] I am not satisfied that Mr. Hutt will be able to adequately prepare for cross-examination of Dr. Mountain on these two statements. Accordingly, pursuant to Rule 55.15 (2)(b) the second sentence of the first paragraph and the first sentence of the second paragraph of this report shall be redacted.
[111] I am satisfied that the remainder of the report contains sufficient information to allow Dr. Mountain to testify to her report without delivering an expert’s report. The remainder of the report can be used by the Plaintiff as a treating physician’s narrative. Any objections relating to admissibility will be dealt with at trial.
#9 Ambulatory Care Clinic Letter from Dr. Anita Mountain to Dr. Susan Haddad dictated April 4th, 2017
[112] The Defendant objects that this document contains hearsay and self-reporting and that opining on the Plaintiff’s functional capacity and ability to return to her occupation is “not in Dr. Mountain’s purview as a treating physician”. The Defendant suggests that this opinion is inadmissible under Rule 55.14 and requires a proper Rule 55.04 report. It also submits that this report contains “inadmissible speculation on prognosis and future treatment”.
[113] The Defendant has not objected to the statement in the first paragraph that the Plaintiff has a history of persistent postconcussion symptoms (objected to in the last report) presumably due to the fact that, in this report, Dr. Mountain listed the facts that she relied upon to support this conclusion (persistent headache, fatigue and “posttraumatic of [or?] visual changes”).
[114] The Plaintiff’s position is as set out in ¶¶ 57-59 above.
[115] In my view, this document is a prime example of a treating physician’s narrative. It is written from one treating physician to another. The narrative contains sufficient information to permit Dr. Mountain to testify to her opinions contained in the narrative without delivering an expert’s report.
[116] As I have indicated previously, issues of hearsay and the doctor’s reliance on the Plaintiff’s self-reporting can be dealt with at trial. I do not accept the suggestion that Rule 55.14 restricts the types of medical opinions that can be expressed in a treating physicians’ narrative. The issue, at this stage of the proceeding, is whether the Plaintiff has satisfied me that the Defendant received information about the opinion, as well as the material facts upon which the opinions are 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 at trial. In my view, she has.
[117] This report can be used by the Plaintiff as a treating physician’s narrative. Any objections relating to admissibility will be dealt with at trial.
#10 Letter from Dr. Anita Mountain to Karen Campbell of Manulife Financial dated June 28th, 2017
[118] This is a letter written from Dr. Mountain to the administrator of the Defendant’s Long Term Disability Plan supporting the Plaintiff’s claim for disability benefits.
[119] The Defendant objects, inter alia, to the fact that Dr. Mountain opines on issues of impairment, disability and prognosis which, it submits, are well outside the realm of Dr. Mountain’s presumed expertise or of a Rule 55.14 treating physician’s narrative. It points out that Dr. Mountain had not seen the Plaintiff for a number of months prior to writing this letter and further suggests that this physician has not provided any personal observations supporting her opinions.
[120] The Plaintiff’s responses are as set out in ¶¶ 57-59 above.
[121] In my view, the predominant purpose of this document was not for treating the Plaintiff. It was to support her claim for disability benefits.
[122] This document cannot be used by the Plaintiff as a physician’s narrative at trial.
# 11 Chart Note of Dr. Susan Haddad dated May 9th, 2018
[123] This is a short chart note prepared by the Plaintiff’s family physician. It contains some conclusions such as “still having concussion symptoms” and “has been unable to rtw”.
[124] The Defendant submits that this chart note is not a treating physician’s narrative.
[125] The Plaintiff’s position is as set out in ¶¶ 57-59 above.
CONCLUSION
[126] This chart note does not contain sufficient information to permit Dr. Haddad to testify to any opinions contained therein without delivering an expert’s report. The Plaintiff has not satisfied me that the Defendant has received sufficient information about the opinions, and the material facts upon which they were based, for the Defendant to retain an expert to assess the opinions and prepare adequately for cross-examination of Dr. Haddad at trial.
[127] This document cannot be used by the Plaintiff as a physician’s narrative at trial.
#12 Canada Revenue Agency Disability Tax Credit Questionnaire and Disability Tax Credit Certificate signed by Dr. Haddad on October 9th, 2019
[128] This is a letter/questionnaire from the Canada Revenue Agency to Dr. Haddad in support of the Plaintiff’s claim for a disability tax credit. Attached to it is a disability tax credit certificate which has also been signed by Dr. Haddad.
[129] The Defendant submits that this is not a therapeutic record and does not meet the requirements of Rule 55.14. In addition, it suggests that Dr. Haddad has not connected her opinions with her own observations.
[130] The position of the Plaintiff is as set out in ¶¶ 57-59 above.
CONCLUSION
[131] This form was completed by the Plaintiff’s family physician to support the Plaintiff’s claim for a disability tax credit. In my opinion, its predominant purpose was not for treating the Plaintiff.
[132] The Plaintiff is not able to rely on this document as a physician’s narrative at trial.
COSTS
[133] Success has been divided on these motions. I am hopeful that counsel will be able to reach an agreement on costs. If not, the Applicant shall file and serve its costs submissions by November 9th, 2020. The Respondent’s reply shall be filed and served by November 16th, 2020. Any reply (if any) by the Applicant shall be filed and served by November 23rd, 2020.
[134] An Order will issue accordingly.
Deborah K. Smith
Chief Justice