The Court of Appeal Clarifies the Scope of Participating Expert Evidence

In Imeson v. Maryvale (Maryvale Adolescent and Family Services), 2018 ONCA 888 (“Imeson”), the Court of Appeal emphasized the importance of the judicial gatekeeping role for expert witnesses, and clarified the boundaries of proffering “participant expert” evidence at trial. In a narrow exception to Rule 53.03 of the Rules of Civil Procedure, a fact witness with special expertise may be permitted to provide opinion evidence where the opinion was formed as a component of his or her participation in the matters at issue, and relates to the witness’s special expertise. The opinions at issue in Imeson failed to comply with the stringent admissibility requirements.   

James Imeson (“Imeson”) commenced a civil action in 2011 against a residential institution, Maryvale Adolescent and Family Services (“Maryvale”). Imeson alleged that a former Maryvale employee, identified as Tony “Doe”, had sexually assaulted him as a child. Imeson claimed against Maryvale, among other defendants, for vicarious liability for Doe’s conduct.

Prior to the lawsuit, Imeson had been convicted of three counts of second-degree murder. While serving time in a federal penitentiary, in approximately 2009, he first reported the allegations of sexual abuse. Dr. Kerry Smith provided therapeutic treatment to Imeson at the facility from June 26, 2012 to April 13, 2015.

During his sessions with Imeson, Dr. Smith took handwritten notes. At Imeson’s request, he then  created “reports” summarizing his handwritten notes in April of 2016. The reports went beyond Dr. Smith’s original notes, adding additional commentary and “thematic connections” that he had not previously recorded. The original notes were destroyed pursuant to the facility’s policies.

At trial, the judge relied on the framework established by Westerhof v. Gee Estate, 2015 ONCA 206 (“Westerhof”), to permit Dr. Smith to provide evidence as a participant expert. Imeson’s counsel elicited Dr. Smith’s opinion on whether the sexual assault had occurred, and whether the assaults had caused harm to Imeson. The trial judge also permitted Imeson to admit Dr. Smith’s full reports into evidence.