J.M.D.’s appeal of the dismissal of her claim for compensation pursuant to the Victims’ Rights and Services Act was allowed by the Nova Scotia Court of Appeal. The court held that the N.S. Utility and Review Board erred in the manner in which it considered and disposed of evidence of a witness tendered as similar fact evidence.

28. December 2004 0

Administrative law – Judicial review – Administrative decisions – Review Board – Evidence – Witnesses – Similar fact evidence admissibility

J.M.D. v. Nova Scotia (Utility and Review Board), [2004] N.S.J. No. 400, Nova Scotia Court of Appeal, October 28, 2004, Glube C.J.N.S.

J.M.D. claimed that, when she was a nursing student in Halifax in the mid-60s, she was the victim of both sexual assault and “medical assault” at the hands of Dr. N., a prominent psychiatrist, now deceased. J.M.D. claimed it was only recently, through the success of her own therapy and investigations, that she found another woman said to have been victimized by Dr. N. in much the same way. On December 10, 1996, she filed an application for compensation under the Criminal Injuries and Compensation Program. The manager of the Program advised J.M.D. that based upon the information provided by her and obtained from other sources, a recommendation would be made to the Director to deny her application for compensation. On November 6, 1997, J.M.D. filed a Notice of Appeal with the Nova Scotia Utility and Review Board (the “Board”), appealing the decision of the Director to deny compensation.

On November 28, 2002, the Board heard, as a preliminary issue, J.M.D.’s application to admit as “similar fact evidence” a Statement of Claim filed in the Nova Scotia Supreme Court by K.A., who alleged that she too had been victimized by certain physicians, including Dr. N., under circumstances which J.M.D. claimed were remarkably similar to her own. The Board dismissed J.M.D.’s application to adduce similar fact evidence. The appeal from the Director’s decision was heard by the Board on October 10, 2003. At the hearing, the Board decided not to adjourn to consider the qualifications of a witness, Dr. Schneider, whom J.M.D. proposed to call, and refused to assess the evidence Dr. Schneider was prepared to give. The Board dismissed J.M.D.’s claim for compensation. J.M.D. then appealed the Board’s decision to the Nova Scotia Court of Appeal.

The Court of Appeal held that the Board erred in (1) its treatment and disposition of the similar fact evidence and (2) its failure to adjourn to consider the qualifications of Dr. Schneider.

The court held that the Board’s responsibility was to address the evidence from K.A., which J.M.D. sought to introduce in her own case, and determine if it qualified as proper similar fact evidence. The court noted that there was nothing in the record to indicate that the Board ever turned its mind to such an inquiry and, consequently, the requisite analysis was never undertaken. The court further noted that there was good reason to doubt whether the law relating to similar fact evidence was even applicable to the proposed evidence. The similar fact rule permits evidence to be admitted that would otherwise be excluded under the rule barring evidence of the bad character of a party. In this case, neither Dr. N. nor his estate was a party to the application for criminal injuries compensation. Therefore, there was no need to rely on the similar fact doctrine to admit the proposed evidence because it was not excluded by the exclusionary rule relating to character evidence of a party in the first place.

The court also held that the Board erred in failing to adjourn to consider the qualifications and evidence of Dr. Schneider. Dr. Schneider was a licensed medical practitioner and J.M.D. had been his patient since 1984. The question of whether or not Dr. Schneider’s evidence concerning his professional care and treatment of J.M.D. and his opinion concerning her diagnosis and prognosis was admissible could only be determined by the Board after first giving J.M.D. an opportunity to demonstrate its admissibility. In this case, the Board denied her the chance to do so.

In the result, the court allowed the appeal and directed that a new hearing of the matter be conducted before a differently constituted Board.

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