SUPREME COURT OF Nova Scotia
Citation: LaMarche v. Campbell, 2022 NSSC 338
Date: 20221130
Docket: Hfx No. 498264
Registry: Halifax
Between:
Kimberly Eileen LaMarche and Jolene Tanner
Plaintiffs
and
Ashley M. Campbell
Defendant
DECISION
| Judge: |
The Honourable Justice Jamie Campbell |
| Heard: |
November 16, 2022, in Halifax, Nova Scotia |
| Counsel: |
Nicolle Snow, for the Plaintiffs Lisa Richards, for the Defendant |
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By the Court:
[1] This matter is scheduled for trial starting on January 4, 2023. That is less than 2 months from the date that these motions were heard, November 16, 2022. There are two motions. One, brought by the Defendant, Ashley Campbell, seeks the court’s leave to file two experts’ reports after the date on which they were due. The other motion, brought by one of the Plaintiffs, Kimberly LaMarche, seeks an advance ruling on the admissibility of opinions set out in 6 treating physician’s narratives. The two motions are not related, except by the Defendant’s position that if the experts’ reports are admitted, they will not object to the admission of the opinions in the treating physician’s narratives.
[2] The Defendant, Ashley Campbell, filed a motion on October 4, 2022, asking for the court’s permission to file two expert’s reports, well after the date on which the reports were due. They were due before April 4, 2022, 6 months before the Finish Date. That date was set at a Date Assignment Conference (DAC) held on October 1, 2021.
[3] There is no question that the reports sought to be filed are late. And quite a bit late at that. But counsel for Ms. Campbell argues that there are exceptional circumstances that would make it unjust to exclude those opinions. The issue on the motion is whether this is a case in which compliance with the time requirements set out in the Nova Scotia Civil Procedure Rules should be excused.
[4] There is no question that there would be some prejudice to the Defendant in excluding the opinions. That could be said in almost any case. Filing of the reports would be prejudicial to the Plaintiff, because there would not be enough time to file a rebuttal before the trial in January. There have been no reasons given to explain why the reports were not filed before April 4, 2022. The reports were known to the Defendant at that time and could have been filed but they were not. The fact that the other party failed to identify the opinions contained in the treating physician’s narratives by the date set at the DAC did not cause or contribute to the failure to file the experts’ reports. The circumstances of the case do not justify an extension of time for the filing of the experts’ report.
[5] The Plaintiff Kimberly LaMarche filed a motion seeking an advance ruling under Rule 55.15, on the admissibility of opinions contained in narratives produced by her treating physician Dr. Peter C.K. Lee. At the October 1, 2021 DAC the date set for the identification of opinions was April 4, 2022, which was the same date as set for the submission of expert’s reports. The opinions were not identified until August 29, 2022, with further elaboration on September 29, 2022.
[6] That was clearly beyond the April 4, 2022, date set at the DAC. But a different test applies for the determination of the admissibility of opinions contained in treating physician’s narratives. The failure to identify the opinions sought to be relied upon by the date set at the DAC does not mean that exceptional circumstances must be shown that would justify their admission. The party seeking to use the opinions must satisfy to the court that the opposing party received sufficient information within enough time to allow for proper preparation for trial. That test has been met.
Background
[7] The case itself involves a motor vehicle accident that took place on August 22, 2019. The two Plaintiffs, Kimberly LaMarche and Jolene Tanner sued Ms. Campbell in May 2020. Liability is not in issue. The trial, scheduled for this January, is about damages only. These motions relate to only one of the Plaintiffs, Ms. LaMarche.
[8] The parties have agreed that the rules that apply are those that were in place before the amendments in June 2022. The Date Assignment Conference was held on October 1, 2021. At that time, Justice Jamieson set the Finish Date as October 4, 2022. According to Rule 55.04 any expert’s reports were due by April 4, 2022. And by the same date the Plaintiff was to identify any treating physician’s narratives on which they would seek to rely.
[9] No expert’s report was filed on behalf of Ms. Campbell and no rebuttal was filed to the Plaintiff’s report. No reason has been given for why no expert’s report was filed on behalf of Ms. Campbell. And as of that due date, the Plaintiff had not identified the opinions contained in the treating physician’s narratives.
[10] The Defendant retained new legal counsel on August 12, 2022. That was about 5 months away from the trial and 4 months after any expert’s reports were due.
[11] When new counsel was retained, they reviewed the file. Five days later they contacted the Plaintiff’s counsel and noted that the Plaintiff, Ms. LaMarche, had not identified the opinions contained in the treating physician’s narratives upon which the Plaintiff intended to rely. Counsel for Ms. LaMarche responded and took responsibility for the oversight.
[12] The parties began to exchange correspondence about the missed deadlines. There were some efforts made to reach a compromise that would allow for the filing of both the experts’ reports and the opinions set out in the treating physician’s narratives. But no agreement was reached.
[13] The Plaintiff filed an Independent Psychiatric Evaluation prepared by Dr. Parekh dated April 3, 2022. There was no issue with that. That report says that Ms. LaMarche suffered from long standing psychological issues and had stopped working in 2017 due to those issues. The report also says that Ms. LaMarche was receiving Long Term Disability benefits at the time of the incident that gave rise to this claim. Among the documents reviewed by Dr. Parekh were the report of Dr. Duncan Veasey and an Independent Psychiatric Evaluation by Dr. Edward Yuzda. Dr. Veasey’s report was prepared for a Section B insurer in 2017 and related to a claim from a 2017 motor vehicle accident. Dr. Yuzda’s report was prepared for the Plaintiff’s Long Term Disability insurer in February 2019. Both the reports were disclosed to Ms. Campbell’s counsel as part of this litigation. Ms. Campbell wants to be able to use those reports but as expert opinions it is too late to file them.
[14] Dr. Peter C.K. Lee is Ms. LaMarche’s family doctor. The records in question were provided to the Defendant on March 23, 2021, and September 21, 2021. The opinions to be relied upon were not identified at that time. As of May 27, 2020 Ms. LaMarche had started an action seeking damages for injuries that included soft tissue injury to her neck, back, shoulders, left arm, left knee, numbness and burning in the left arm, head impact, concussion and aggravation of existing emotional and mental health issues. She was discovered by the Defendant’s then legal counsel on July, 13, 2021. On August 29 and again on September 29, 2022, counsel for the Plaintiffs wrote to Ms. Campbell’s counsel identifying the treating physicians’ opinions upon which she proposed to rely. Counsel for the Defendant raised the issue of the lateness.
[15] Both parties have a “lateness problem”. The Defendant is late in seeking to file the reports of Dr. Veasey and Dr. Yuzda. And the Plaintiff was late in advising the Defendant about what opinions in the treating physicians’ narratives would be sought to be relied upon. They both have a lateness problem but a lateness problem involving the filing of an expert’s report is different from a lateness problem in the identification of an opinion in a treating physician’s narrative.
Law
[16] The timeline for the filing of an expert’s report set out in Rule 55.03(1) is mandatory. The report must be filed no less than 6 months before the Finish Date, or by the deadline set by a judge. There are good reasons for that. As Justice Jamieson noted in Aly v. Personal Care Holdings Ltd., 2022 NSSC 108, the Rule ensures predictability, avoids surprise or ambush, and ensures that scarce trial time is not lost due to the need for adjournments caused by late filing of expert’s reports. If timelines are not strictly adhered to and enforced by the courts, those benefits are lost.
[17] In the recent case of Croft v. Nemis, 2022 NSSC 211, Justice Gatchalian set out the test to be applied. The court must consider whether the report sought to be admitted will have probative value, whether there are exceptional circumstances to warrant its late filing, and the prejudicial effect on the other party of the late filing of the report.
[18] That test should be applied having regard to the importance of strict adherence to the timelines. It is not intended to be an easy test to meet. The late filing of an expert’s report can often lead to a request for the adjournment of a civil trial that has been scheduled well more than a year before. But there can be unusual circumstances that can give rise to an exception.
[19] The timeline for the filing of treating physician’s narratives is different. The treating physician’s narratives may be filed, as they were in this case, before the action was even commenced. When a date is set by a judge at a DAC, by which the party must identify any opinions contained in the narratives, that is not aspirational but a deadline to with which the parties should comply. There was then an obligation on the Plaintiff to identify the opinions sought to be relied upon by April 4, 2022, the date set by Justice Jamieson at a DAC. The Plaintiff did not comply with that deadline.
[20] In Ogilvie v. Windsor Elms Village for Continuing Care Society, 2019 NSSC 349, Justice Keith provided a full review of the caselaw relating to the treating physician’s narratives. In his summary he noted that Rule 55.14, dealing with narratives and Rule 55.15 dealing with advance ruling should be “strictly construed” to prevent the use of physician’s narratives as a way to contravene the rules of expert opinion. Those concerns reflected the requirement that a party receiving a physician’s narrative be afforded a reasonable opportunity to prepare for trial. The rules that apply to treating physician’s narratives are an effort to balance concerns of fairness and notice, in terms of time and clarity, with those of access to justice and proportionality. The treating physician’s narrative must be delivered at a reasonably early stage following receipt of the treatment and it must allow the other party to understand the relevant facts observed and identify the findings or opinions flowing from those observations.
[21] Ogilvie has been followed in Brown v. Nova Scotia Association of Health Organizations Long Term Disability Plan, 2020 NSSC 301, Kennedy v. Smolenaars, 2021 NSSC 143, and Downey v. Burroughs, 2021 NSSC 147.
[22] Treating physician’s narratives are, in the words of Chief Justice Smith, in Brown, “designed to relax the rules relating to expert opinion evidence while, at the same time, ensure trial fairness” (para. 37). In Brown a date was set, at a DAC, by a judge, for the identification of opinions contained in a treating physician’s narrative. The plaintiff in that case did not comply with the deadline but complied with the obligation under Rule 55.14(2), by providing the material before the Finish Date. In discussing the effect of missing the deadline set at the DAC the Chief Justice noted that a party who misses a judge’s deadline in relation to treating physician’s narratives but who has the narratives delivered to the other side before 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” (para. 28).
[23] In that case, as here, the documents were provided to the Defendant before the commencement of the litigation and the opinions sought to be relied upon were identified before the Finish Date, October 4, 2022.
[24] The Chief Justice noted that the burden is on the party who seeks to introduce treating physician’s narratives to satisfy the court that the opposing party has received enough information about the opinion and the material facts upon which it is based to allow that party to decide whether to obtain an expert to assess the opinion and prepare for cross-examination.
[25] In Downey Chief Justice Smith set out the framework for determining whether a document qualifies as a treating physician’s narrative. There are three steps. The author must have been a treating physician. The narrative must have been prepared for the predominant purpose of treating the patient. The proposed narrative must set out the relevant facts observed, and the findings made by the physician during treatment.
[26] If the document is a treating physician’s narrative the issue is whether it meets the requirements set out in Rule 55.14(6). The narrative opinions must be clearly identified to allow the other party to know what opinions will be relied upon at trial and the information provided and the material facts upon which the opinion is based are sufficient. As Chief Justice Smith summarized in Downey, the question is “does it allow the party to prepare adequately for trial” (para. 41).
[27] The filing of an expert’s report is dealt with by strictly enforced rules. The failure to adhere to the deadlines for filing can be justified only in exceptional circumstances having regard to the prejudicial effect on the other party and the probative value of the opinion evidence. The rules governing the filing of treating physician’s narratives are less strict. The issue is one of trial fairness and whether the other party has been given an adequate and fair opportunity to assess the opinion, determine whether an expert should be retained to assess the opinion and to enable counsel to prepare to cross-examine the physician.
Expert Opinion
[28] The Defendant wants to be able to file two expert’s reports that were provided by the Plaintiff, Kimberly LaMarche.
Probative Value
[29] If the report is of limited probative value, the reason for granting an exception to the timeline set out in the Rule is significantly weakened. What are proposed here are an existing report created by Dr. Veasey for the section B insurer in relation to an unrelated collision that happened in February 2017 and an Independent Psychiatric Evaluation by Dr. Edward Yuzda prepared for Ms. LaMarche’s LTD insurer in February 2019. The incident that gave rise to this claim happened in August 2019. Both reports predate that. There would be no opinions on diagnosis, prognosis, or causation as it relates to this claim.
[30] It cannot be said that the reports would have no probative value. While Dr. Veasey’s and Yuzda’s reports predate the 2019 accident, one of the issues at trial will be the impact of the 2019 collision of the Plaintiff’s psychiatric condition. Her medical and psychiatric condition after the 2017 accident could be relevant to that.
[31] The reports of Dr. Veasey and Dr. Yuzda may have probative value. In that sense their admission would assist the Defendant.
Prejudicial Effect
[32] The prejudicial effect of the filing of the reports of Dr. Veasey and Dr. Yuzda is not overwhelming.
[33] The trial is scheduled to start in less than 2 months. If the reports were to be admitted the Plaintiff would not be able to respond by way of rebuttal in time for the trial. The Plaintiff would not have known that those reports were going to be filed as expert opinions. There is some prejudice.
[34] But the Plaintiff obviously knew about the reports and their contents. They disclosed them after all. They were referenced specifically in the report prepared by Dr. Parekh and filed on April 3, 2022.
[35] There is then probative value for the Defendant and some modest prejudice to the Plaintiff. When assessing the late filing of expert’s reports that balancing of prejudice and probative value is not determinative. The issue of exceptional circumstances must be considered.
Exceptional Circumstances
[36] Exceptional circumstances could encompass a broad range of situations that leave parties in the uncomfortable position of having to file a report after the mandatory filing deadline. If that range of situations is broad enough it means that the mandatory filing deadline is not mandatory and hardly a deadline at all. And if the balancing of prejudice and probative value decided the matter there would be no need to mention exceptional circumstances.
[37] Justice Jamieson in Aly cited with approval Justice Ann Smith’s comments in Conrad v. A.F.L. Manufacturing Limited, 2018 NSSC 52 (para. 42). In that case Justice Smith said that exceptional circumstances could be where facts come into the knowledge of a party which could not, with reasonable diligence have been learned in time to be included in an expert’s report. Another example might be when the plaintiff in a personal injury claim has a significant change in their health so that new expert evidence is required to properly put the state of the plaintiff’s health before the judge. As Justice Jamieson noted, the examples put forward by Justice Smith are not a closed list. But as Justice Jamieson says, “exceptional circumstances are just that, exceptional” (para. 43). The circumstances are out of the control of the party or unforeseen despite reasonable diligence.
[38] It is conceivable that an oversight rises to the level of exceptional circumstances provided something out of the ordinary caused the oversight.
[39] The Defendant in this case has not put forward any reason at all why the deadline for filing of an export report was missed. There is no information from pervious counsel to indicate whether this was a strategic decision not to file expert’s reports or an oversight. The Defendant has noted the discussions that took place after the retainer of new counsel but none of that provides an explanation for the late filing of the experts’ reports.
[40] There are no circumstances after the filing deadline of April 4, 2022, that would qualify as exceptional to justify late filing of the reports. The parties were involved in negotiations about the issue, but those discussions did not change the fact, the significance, or the consequences of the filing of reports after the date set for their filing.
[41] Had some explanation been provided for the late filing of the reports, it might have been sufficient having regard to the weighing of probative value and prejudicial effect. But allowing the late filing of the reports in the face of the total absence of any explanation whatsoever for the failure to file them by the date set at the DAC would mean disregarding the application of the Rule.
Treating Physician’s Narratives
[42] The Plaintiff, Kimberly LaMarche, wants to file opinions set out in 6 treating physician’s narratives.
[43] The Defendant has argued that if she is to be held strictly to the requirement for the timely filing of the experts’ reports, the Plaintiff should have the same standard applied as it relates to the identification of the treating physician’s narratives. That information was provided after the date set at the DAC.
[44] As Justice Keith noted in Kennedy, there are significant differences between the pre-trial procedural requirements that apply to treating physician’s narratives and those that apply to other forms of expert opinion evidence. The rules around treating physician’s narratives are significantly relaxed. The degree to which they are relaxed must be balanced against concerns for trial fairness.
[45] The Statement of Claim was filed on May 27, 2020. The nature of the claims was straining, tearing and trauma to the muscles, ligaments, and tendons in the Plaintiff’s neck, back, shoulders, left arm, and left knee, numbness and burning in the left arm, head impact, a concussion, and the aggravation of existing emotional and mental health issues. The claim was for general damages including lost and/or diminished earning capacity.
[46] The notes provided by the treating physician Dr. Lee make observations about what Ms. LaMarche claimed. The narratives address the issues set out in the claim.
[47] In this case, the treating physicians’ narratives were provided to the Defendant on March 23, 2021 and September 1, 2021. There is no issue with the filing of the documents themselves. A discovery examination was conducted of Ms. LaMarche on July 13, 2021. That discovery examination allowed for the scope of her injuries to be addressed. No further injuries have been raised. There would be no surprise about what she has claimed and no surprise about what the physicians were saying in their narratives.
[48] The treating physicians’ narratives are typed and legible. There are 6 of them in total. All were in the possession of the Defendant since September 1, 2021. This was not a situation in which one would have to go through volumes of handwritten notes to pick out the opinions or to discern what facts the opinions might have been based upon. This was not a document dump.
[49] The Defendant was aware of the nature of the claim and had the treating physicians’ narratives for over a year. Being aware of the nature of the claim, the opinions set out in the narratives that relate to those claims are not difficulty to identify. The failure of the part of the Plaintiff to formally identify those opinions by the date set in the DAC, but before the Finish Date, did not compromise the ability of the Defendant to prepare for trial.
Conclusion and Costs
[50] The Defendant’s motion to file two experts’ reports is not granted.
[51] The Plaintiff’s motion on the admissibility of opinions set out in the 6 treating physician’s narratives is granted.
[52] The Plaintiff, Kimberly LaMarche, was successful on both motions. Costs of $500 on each of the two motions are granted to the Plaintiff. The total costs awarded is $1,000.
Campbell, J.