Top Five Highlights from Westerhof v. Gee Estate

On March 26, 2015, the Ontario Court of Appeal released its decision in Westerhof v. Gee Estate 2015 ONCA 206. Heard at the same time as the recently-released Moore v. Getahun, Westerhof has been championed by members of the Plaintiffs’ bar as a “big win for common sense” in the area of non-expert opinion evidence.

As was the case with Getahun, Westerhof also attracted a host of intervenors, including the Ontario Trial Lawyers’ Association, the Canadian Defence Lawyers Association, The Advocates’ Society, and The Holland Access to Justice in Medical Malpractice Group.

The decision clarifies the admissibility of opinion evidence given by non-expert witnesses including treating health care practitioners, in the context of the 2010 amendments to Rule 53.03. Westerhof restores the law to what it was before Rule 53.03 was amended. The Court of Appeal confirmed that Rule 53.03 was intended to apply only to “expert witnesses engaged by or on behalf of a party to provided opinion evidence in relation to a proceeding” and not to treating health care practitioners and other non-party witnesses.

In 2010, Rule 53.03(2.1) was added to specify the information to be included in an expert’s report and required that the expert sign an Acknowledgement of Expert’s Duty form. The information required to be included in the report included:

53.03(2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information:

• the expert’s name, address and area of expertise.
• the expert’s qualifications and employment and educational experiences in his or her area of expertise.
• the instructions provided to the expert in relation to the proceeding.
• The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.
• The expert’s opinion respecting each issue and, where there is a range fo opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.
• The expert’s reasons for his or her opinion, including,
  • a description of the factual assumptions on which the opinion is based.
  • a description of any research conducted by the expert that led him or her to form the opinion, and
  • a list of every document, if any, relied on by the expert in forming the opinion.
• An acknowledgement of expert’s duty (Form 53) signed by the expert.

In Westerhof, the main issues at trial related to causation and damages. In regards to the evidence, the trial judge ruled that:

• The medical witnesses who treated the plaintiff were not permitted to give their opinion evidence concerning their diagnosis or prognosis, nor evidence of the history they had taken from the plaintiff. The reasoning of the trial judge was that these witnesses did not comply with Rule 53.03 and did not serve a Rule 53.03-compliant report, even though they had not been retained for the purposes of the litigation.
• MRI reports that contained statements of causation were to be redacted, as the radiologist did not submit a Rule 53.03-compliant report.
• All Rule 53.03-compliant experts could not refer to the opinions expressed by treating physicians.
• The plaintiff’s family doctor’s clinical notes and records could not be entered as business records under s.35 of the Evidence Act, because they contained non-Rule 53.03 compliant reports by other practitioners and, further, as the doctor had given oral evidence of his visits with the plaintiff the notes themselves held little probative value.

The trial judge’s evidentiary rulings were upheld by the Divisional Court. At the Court of Appeal, Simmons J.A. overturned both decisions.

The following are 5 notable points from the Court of Appeal’s decision:

1. Treating Physicians may give opinion evidence about diagnosis, prognosis and treatment rendered.
The main issue in Westerhof was to whom Rule 53.03 applies. Traditionally, a litigation expert was always required to deliver a Rule 53 report. Also, a treating health care practitioner, before 2010, was permitted to be called by the plaintiff and provide evidence about his/her diagnosis and prognosis concerning the plaintiff.

As a result of the trial and Divisional Court decisions in Westerhof, the treating health care practitioner’s evidence about his/her diagnosis and prognosis could not be admitted for the truth of its contents, but rather only for the fact that it was made. The Divisional Court ruled that without submitting a Rule 53.03 report, the treating health care practitioner’s evidence was limited.

Simmons J.A. reiterated the long-standing test for admission of opinion evidence of treating healthcare practitioners:

I conclude that a witness with special skill, knowledge, training or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with Rule 53.03 where:

• The opinion to be given is based on the witness’s observation of or participation in the events at issue; and
• The witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

2. The treating health care practitioner as a “fact” or “participant” witness.
The Court of Appeal confirmed that the leading case on this issue, Marchand v. The Public General Hospital Society of Chatham (2000) 51 O.R. (3d) 97, disregarded by the Divisional Court, remained good law. Marchand held that the treating physician is a “witness of fact, not an expert witness”, and hence Rule 53 was not engaged.

Simmons J.A. finessed the terminology a bit and instead referred to the treating health care practitioner as a “participant witness” because, as noted in Marchand, the treating doctor “formed his opinions relevant to the matters at issue while participating in the events as part of the ordinary exercise of his expertise.”

An expert, by contrast, is a “stranger to the underlying events who gives opinion based on a review of documents or statements from others concerning what had taken place.”

Thus, to reiterate, the participant witness can give opinion evidence that is admissible for its truth.

3. The “non-party” expert is also exempted from Rule 53.03.
Similarly, Simmons J.A. concluded that a non-party expert may give opinion evidence that is admissible for its truth, where that non-party expert has formed a relevant opinion based on personal observations or examinations relating to the subject matter of the litigation, for a purpose other than the litigation. The non-party expert must submit a Rule 53.03 report where the opinion evidence goes beyond the test enunciated above.

This ruling opens the door to having section 44 assessors under the SABS testify freely without complying with Rule 53. Presumably, the section 44 assessor would be “fair game” by both the plaintiff and the defendant. Physicians who conduct assessments as part of a long-term disability claim would also, presumably, be allowed to give opinion evidence without strict compliance with Rule 53.

4. The decision underscores the importance and utility of serving s.52 Evidence Act notices, in regards to treating doctors’ reports and MRI/radiology reports.
Of note, Simmons J.A. upheld the trial judge’s ruling that the family doctor’s records ought not be admitted into evidence. The family doctor’s records contained reports by other medical practitioners, which reports provided opinions, diagnoses and prognoses.

Simmons J.A. held that plaintiff’s counsel ought to have served notices under s. 52 of the Evidence Act in regards to the reports of the other practitioners referred to in the family doctor’s records. In this way, the reports would be admitted into evidence for the truth of their contents.

This is a reminder to all counsel that to save time and resources, a party may serve a s.52 notice listing the medical reports signed by all treating health care practitioners, so that the truth of the opinions expressed in those reports are admitted into evidence without the need to call the authors themselves.

As we know from reading many radiology and MRI reports in our files, a radiologist will often make comments about the patient’s medical history as well as causative factors that may explain the imaging. In Westerhoff, the radiologist made the following comments in the plaintiff’s MRI report:

• There is a history of a previous MVA
• Given the history of recent trauma, the labral injury may be due to an acute injury
• The 5mm loose body may represent an avulsed bony injury given the history of trauma and presence of bone marrow edema.
• Labral tear is probably secondary to trauma

These comments by the radiologist were redacted at trial. The MRI was tendered as a business record under s.35 of the Evidence Act, but the radiologists’ comments were not admissible for the truth of their contents. Further, the radiologist was not permitted to be called as a witness at trial because he had not served a Rule 53.03-compliant report.

Simmons J.A. overturned the trial judge and Divisional Court rulings and confirmed that the radiologist was akin to a treating physician, the MRI was conducted to treat and diagnose the plaintiff, and he was therefore qualified to give the opinion evidence that had been redacted by the trial judge.

It is important to note, again, that a s.52 notice was not served for the admission of the MRI report. Another reminder that s.52 is a useful tool for admitting opinion evidence of causation and diagnosis, without the need to call the author of the MRI itself.

5. Treating Physicians can give evidence about a plaintiff’s ability to work
The Court of Appeal also heard, and ruled on, a case called McCallum v. Baker. The plaintiff was injured in a car accident and was awarded damages for, inter alia, pain and suffering, future care and loss of income. At trial, the trial judge permitted several treating medical practitioners to give opinion evidence concerning the plaintiff’s future employment prospects and future treatment needs, without complying with Rule 53.03.

The defence argued that the trial judge erred in permitting the treating physician to give opinion evidence about future employability and medication when these were subjects not directly related to the physician’s treatment of the plaintiff. Further, the physicians’ opinion in this regard went beyond their expertise, and fell properly within the boundaries of Rule 53.03 expert evidence.

Simmons J.A. rejected the defence’s arguments.

Simmons J.A. wrote that the treating physicians’ opinions about future employability/ability to return to work and future medication needs did fall within their respective areas of expertise, and “it appears that the opinions at issue were formed at the time of treatment.”  Further, the opinions were not “complex vocational opinions” that one would ordinarily see in a Rule 53.03 expert report. Rather, they flowed directly from the diagnoses made in their capacity as treating doctor. The psychologist, for example, gave evidence of her DSM IV diagnosis, and assessed the plaintiff as having a GAF of 50. With this score, in her view, the plaintiff “definitely was not ready to return to work.” As Simmons J.A. wrote, “there is no suggestion [the psychologist] was not qualified to conduct this assessment.” Similarly, the family doctor’s remarks about the plaintiff’s ability to work, in light of the evidence by the doctor of his energy levels, motivation, and difficulty with sustained activity, “flowed naturally from his observations concerning Mr. McCallum’s presenting condition.”

Thus, the Court of Appeal’s decision has put to rest the panic and confusion caused by the trial and Divisional Court’s rulings in Westerhoff, which significantly restricted the use of evidence by “participant” witnesses such as treating doctors, thereby increasing litigation costs and almost negating the utility of s.52 of the Evidence Act. The Court has restored the law in regards to opinion evidence tendered by non-experts as that law existed under Marchand and before the 2010 amendments to Rule 53.

Contributed by Najma Rashid, personal injury and civil litigation lawyer practicing with Howard Yegendorf & Associates LLP and BrazeauSeller.LLP.