A recent B.C. Supreme Court ruling has offered insights into why judges don't always accept reports by academics, the government, or administrative tribunals without allowing the authors to face cross-examination.
This decision arose in the midst of litigation between Cambie Surgeries Corporation and several other plaintiffs against the B.C. government.
The plaintiffs are arguing that four provisions in the Medicare Protection Act violate the Canadian Charter of Rights and Freedoms.
The case revolves around a mother choosing to have serious surgery on her son performed in Washington state to avoid waiting longer for this operation in B.C.
According to the ruling, the operation in the U.S. resulted in paraplegia.
The province asked Justice John Steeves to rule that 23 documents were not admissible for their "prima facie truth".
These included reports by the provincial patient care quality office and Patient Care Quality Review Board, which relied, in part, on a peer-reviewed study in the Canadian Medical Association Journal.
There's a PCQRB aligned with each of the province's six health authorities, and they review complaints about the quality of patient care.
"According to British Columbia there are issues with regard to hearsay, opinion evidence and the admissibility of reports from tribunals into court," Steeves wrote in his ruling.
In addition, the government objected to admitting email chains between a plaintiff and the office and the review board. These included information about wait times.
The government also fought the admissibility of a letter from the chair of the Provincial Health Services Authority to the PCQRB chair and minister of health in 2012 as the prima facie truth.
The plaintiffs, on the other hand, claimed that the documents were "admissible for their prima facie truth under the hearsay exception for public documents".
One of the longest sections of the ruling concerned a 2016 Patient Care Quality Review Board report.
It was ruled not admissible for its prima facie truth.
"The PCQRB report included what are described as findings against the health authority and perhaps a surgeon," Steeves wrote. "The plaintiffs go further and say that the Board’s report was also a finding against the Ministry of Health that the long wait time for W to get his surgery in British Columbia contributed to the deterioration of his condition.
"It is of some significance that neither the health authority nor the Ministry were parties to the Board’s proceedings, nor did they participate (except, according to the report, the health authority provided some documents)."
The judge also wrote that the board "has limited value as a venue for developing and testing evidence that can be used in this constitutional litigation".
"The PCQRB report provides opinion from people not certified by the Court as experts and it contains hearsay and double hearsay," Steeves concluded. "The complainant did not attend the hearing and it was not open to the public. The health authority provided some documents and the Board had some of the consultation notes of the surgeon, but it cannot be said their participation was at any significant level.
"The rigour of evidence gathering and assessment is not comparable to the proceedings of court and, in my view, the findings of the Board cannot be reliably transposed for their prima facie truth to this constitutional litigation."
A peer-reviewed CMAJ article on wait times for children's surgery was also not deemed admissible for its prima facie truth. That's because it was "not tendered as part of a report by a court certified expert".
"This article provides opinion evidence on a material and controversial issue in this litigation," Steeves wrote.
For similar reasons, a 2012 report from the patient care quality office was also deemed inadmissible for its prima facie truth.
Moreover, the letter from the Provincial Health Services Authority chair was not admissible as the prima facie truth.
Steeves ruled that this was because it would have enabled "a good part of the PCQRB report" to be admitted for that purpose.
A letter from the patient care quality office to one of the plaintiffs was also deemed inadmissible for its prima facie truth.
However, a letter from an assistant deputy minister of health to the same plaintiff was ruled admissible for its prima facie truth.
Several emails by the plaintiff and opinions from doctors were also ruled admissible for that purpose.
The plaintiffs also argued that the government did not object to the documents in a timely matter. This was dismissed by the judge.