October 17th, 2016
The line between opinion evidence and fact evidence when given by a physician is sometimes blurred. Today reasons for judgement were released by the BC Supreme Court, Vancouver Registry, discussing this and outlining the parameters of factual vs opinion evidence from treating physicians.
In today’s case (Cambie Surgeries Corporation v. British Columbia) the Defendant sought clarity about the scope of evidence from physicians. In discussing these boundaries Mr. Justice Steeves provided the following reasons:
 The treatment of that evidence is well established and has been usefully surveyed by Justice Metzger in a previous judgment (Seaman v. Crook, 2003 BCSC 464):
 The cases Ares v. Venner, supra; Sandu and Brink, Olynyk v. Yeo, supra; Butler v. Latter,  B.C.J. No. 2358 (B.C.S.C.), McTavish v. MacGillivray, supra; Coulter and Ball et al., 2002 BCSC 1740 (CanLII); and s. 42(2) which provides:
In proceedings in which direct oral evidence of a fact would be admissible, a statement of a fact in a document is admissible as evidence of the fact if…
when taken together, stand for the following:
(1) That the observations by the doctor are facts and admissible as such without further proof thereof.
(2) That the treatments prescribed by the doctor are facts and admissible as such without further proof thereof.
(3) That the statements made by the patient are admissible for the fact that they were made but not for their truth.
(4) That the diagnoses made by the doctor are admissible for the fact that they were made but not for their truth.
(5) That the diagnoses made by a person to whom the doctor had referred the patient are admissible for the fact that they were made but not for their truth.
(6) That any statement by the patient or any third party that is not within the observation of the doctor or person who has a duty to record such observations in the ordinary course of business is not admissible for any purpose and will be ignored by the trier of fact. It is not necessary to expunge the statements from the clinical records as this is a judge alone trial.
 Therefore any, and I emphasize the word “any”, opinions contained in the clinical records are not admissible for their truth. The opinions are admissible only for the fact that they were made at the time.
 Without having met the requirements of Rule 40A, the oral testimony of the doctor interpreting his clinical records does not change the nature of the evidence contained in those clinical records. The clinical records remain evidence of the fact that he made those notes, made that diagnosis, and prescribed a certain treatment.
 The opinions contained in the clinical records do not constitute independent stand-alone expert opinions. If they did, what would be the purpose of Rule 40A? It is the expert’s opinion that the court is weighing. It is the expert’s report that the court will accept or reject. It is not the opinion in the clinical records that the court is weighing.
 As can be seen, much of this parallels the orders sought by the defendant, British Columbia. There is more to be said here, but I adopt the above summary by Justice Metzger. I add two other points.
 First, the causation issue here relates to waiting for a medical procedure and a patient’s rights under s. 7 of the Charter, whether the latter was infringed by the former. I say this to distinguish causation here from causation on a medical chart that most frequently relates to whether a motor vehicle accident, for example, was of causative significance in a patient’s injury. This latter causation issue may be marginally relevant to the constitutional issues in this case.
 This is also an appropriate place to address the plaintiffs’ submission that the Rules of Evidence cannot be used by the defendant British Columbia to require them to call every patient who has had a negative experience in the health care system in order to prove their case. I agree with that submission and point out that it is not the position of the defendant, British Columbia. What is required in this case, as with other cases, is counsel’s judgment as to the type and volume of evidence that is necessary to prove their client’s case.
 A second category of evidence that arises here is evidence from a doctor, who is not certified as an expert, about his or her experience with waitlists: how long they have been, how a patient gets on a waitlist, any care issues that arise while the patient is on the waitlist and other related matters. I can see no impediment to the admissibility of evidence from doctors about their observations of how waitlists operate. This is part of the everyday experience of important actors in the health care system and it can be of value to the court. I note this is not opinion evidence about whether waiting times are medically justified or not justified. Such opinion evidence must come from a certified expert.
 Another related category of evidence is also from a doctor, again not certified as an expert, who testifies about his or her observations as to a patient’s situation while waiting for a medical procedure. These observations can be about a patient being in pain, having restricted movements, not being at work, being anxious and/or depressed and other matters. I conclude that these observations are also admissible. In my view the character of these observations are the same as observations that could be made by a non-doctor. The fact that the witness is a doctor is relevant inasmuch as he or she may use medical language to describe his or her observations. But I see no difference for the purposes of admissibility with a non-doctor testifying about an accident where the victim was bleeding from the leg and a doctor saying the same victim was bleeding from the carotid artery.
 I acknowledge there is an element of opinion in this type of evidence. However, it has been the case for some time that distinctions between fact and opinion can be tenuous and even false (Graat v. The Queen,  2 S.C.R. 819, at p. 15 (QL)). This development in the law of evidence has been applied in cases involving, for example, non-expert telecommunication workers describing how to determine the location of a cellphone (R. v. Hamilton, 2014 ONCA 339, at paras. 272-9) and a police officer testifying about his observations from years of experience about the operation of street level drug trafficking (R. v. Ballony-Reeder, 2001 BCCA 293, at para. 12).
 In some cases this is called the “compendium statement of fact exception” to the usual requirement for expert opinions (Ganges Kangro Properties Ltd. v. Shepard, 2015 BCCA 522) and in other cases it is called “lay opinion evidence”, American Creek Resources Ltd. v. Teuton Resources Corp., 2013 BCSC 1042, at para. 142).
 In any case I conclude that a doctor’s observations about his patient while waiting for a medical procedure or prior to being put on a waitlist, however that list is defined, are analogous to the accepted forms of this type of evidence in other cases. This includes identification of handwriting, identification of persons, identification of things; apparent age; the bodily plight or condition of a person, including illness; the emotional state of a person, whether distressed, angry and depressed; and other categories (Graat, at para. 46).
 I also conclude that this type of evidence may be generalized to reflect the experience of a doctor over a period of time and experience with a number of patients in the same situation. Of course, at a certain point highly generalized evidence without sufficient particulars cannot be given significant weight. I have in mind here statements such as patients simply being “significantly disabled” or “in significant distress.” A doctor giving this type of evidence is subject to cross-examination, including questions about specific patients, and this might include details of their treatment.
 There can also be some overlap between the issue of opinion evidence and issues of hearsay. As above, a doctor may well testify about his or her observations about patients waiting for a medical procedure. However, including in that evidence what a patient said can be problematic. This may be a fine line and it could result in the doctor disclosing the name of the patient and other information. Obviously in the case of the death of a declarant, the necessity component in the principled approach to hearsay has been met. Other than these general comments, I consider that the issue of hearsay will have to be considered on the basis of individual cases.
 The plaintiffs rely on what they describe as the special relationship between doctors and patients, and this means that anything said in that relationship is admissible, including hearsay. This is described as “a very strong circumstantial guarantee of trustworthiness or indicia of reliability.” I do not doubt the special relationship between doctors and patients; however, there are other special relationships in society, such as parent/child and lawyer/client. There are constraints, legal and otherwise, on conversations in those relationships, but I am not aware of any authority that says that those conversations are not subject to the usual rules of admissibility of evidence in court. I see no basis for treating discussions between doctors and patients in the broad terms urged by the plaintiffs.
 Turning to a fourth and perhaps final category of evidence here, the evidence may include evidence from a doctor, again not certified as an expert, who says a patient is experiencing a specific medical condition caused by waiting for a medical procedure.
 In my view that is an issue that is at the heart of this litigation and ultimately for me to decide. There can be evidence on that issue that would certainly assist the court, but in my view it must be evidence in the form of an expert. To be clear, evidence on that issue or similar issues from a doctor testifying without being certified as an expert is not admissible. I take examples of this from the will-say statements that include a statement that wait times have a significant impact on the health outcomes and quality of life of patients or delayed treatment has a negative impact on the overall well-being of patients. Again, these conclusions are for the court to make based on admissible evidence including observations by physicians, expert reports and evidence from patients.
 I close this discussion by saying, I have considered the trial and Supreme Court of Canada levels Chaoulli matter (Chaoulli v. Quebec (Attorney General),  J.Q. No. 479, 2005 SCC 35). As urged by the plaintiff, I have treated those judgments as a guide to the issues here. I also note that the specific issues raised here were not raised or otherwise decided in Chaoulli (except for comments from the minority judges at the Supreme Court of Canada.) Here the issues are very clearly in dispute and they require consideration and resolution.