Case information

Civil Procedure — Appeals — Evidence — Expert evidence — Participant expert — Whether there was a failure of due process in that the Court of Appeal decided an issue not raised at trial, argued on appeal or founded on the evidence without notice to the parties — Whether there is confusion at the appellate level as to whether a participant expert can provide causation opinions — Whether the Court of Appeal erred in concluding that Dr. Smith’s opinions were not formed during the course of treatment.<br>

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

In 1996 97, Mr. Imeson spent a few months at Maryvale Adolescent and Family Services, a residential institution devoted to the care and education of troubled youth. He later alleged that he had been sexually assaulted by a former child and youth worker at Maryvale, and, later, by another person. At trial before a judge and jury, Mr. Imeson sought to call Dr. Kerry Smith, a mental health clinician employed in the British Columbia prison system who had seen, assessed and counselled Mr. Imeson over a long series of therapeutic sessions. After a voir dire, Dr. Smith was permitted to testify as a participant expert under the principles set out in Westerhof v. Gee Estate, 2015 ONCA 206. During Dr. Smith’s testimony, the trial judge cautioned that Dr. Smith could speak to his observations and assessments, but not to causation, and that Dr. Smith’s evidence related to what Mr. Imeson had said, not to whether those statements were true. In her charge to the jury, the trial judge described Dr. Smith as an expert witness entitled to give opinion evidence, and repeated the hearsay caution. She told that jury that what Mr. Imeson told Dr. Smith was only meant to show what Dr. Smith’s opinion had been based on. She did not refer to Dr. Smith’s evidence or opinions when reviewing the evidence or in her instructions as to damages.

The jury found Maryvale vicariously liable for sexual assaults alleged committed against Mr. Imeson by Tony “Doe”. The jury did not accept Mr. Imeson’s claim that he was also sexually abused by a deceased Roman Catholic priest, Father Howarth, and the action as against The Roman Catholic Episcopal Corporation of the Archdiocese of London and Father Howarth was dismissed. An appeal was allowed and a new trial was directed based on a holding that Dr. Smith’s evidence exceeded the limits applicable to the evidence of participant experts.