The Ontario Court of Appeal (OCA) has ruled participant experts and non-party experts may give opinion evidence without complying with Rule 53.03 of the Rules of Civil Procedure, overturning two previous decisions on the matter, says Ottawa personal injury lawyer Najma Rashid.
In Westerhof v. Gee Estate, 2015 ONCA 206, the appeal court considered to whom Rule 53.03, which sets out the requirements for introducing the evidence of expert witnesses at trial, applies. The appeal dealt with decisions from both the Superior Court and Divisional Court.
“Both cases were tried following the 2010 amendments to the Rules, which were aimed at ensuring the neutrality and expertise of expert witnesses, as well as adequate disclosure of the basis for an expert’s opinion,” Justice Janet Simmons writes on behalf of the court.
The appeals arose from claims for damages for injuries suffered in car accidents, says the decision. The cases were tried before a judge and jury, and in each case, “the defendant admitted liability for causing the accident, and the issues at trial related to whether the accidents caused the plaintiffs’ injuries and the quantum of damages,” says the ruling.
At trial, the judge in Westerhof refused to admit the testimony of certain experts, finding they hadn’t complied with Rule 53.03.
The appeal raised the question of whether the rule applies only to experts “engaged by or on behalf of a party to provide (opinion) evidence in relation to a proceeding,” or whether it applies more broadly to all witnesses with special expertise who give opinion evidence, writes Simmons.
This broader group of witnesses would include, for example, treating physicians, says the ruling.
“In my opinion, participant experts and non-party experts may give opinion evidence without complying with Rule 53.03. Accordingly, I conclude that the trial judge in Westerhof erred in excluding the evidence of several witnesses,” writes Simmons, who ordered a new trial in the matter.
Rashid, a partner with Howard Yegendorf & Associates LLP, welcomes the OCA judgment.
“I think it’s the most reasonable conclusion that the appeal court could have arrived at,” she tells AdvocateDaily.com. “I think many plaintiffs’ lawyers are breathing a sigh of relief because the impact of the trial and Divisional Court decisions was that a treating health-care practitioner, such as a treating doctor, was not allowed to give opinion evidence. Evidence about their diagnosis, prognosis and treatment was allowed to be admitted for the fact that they were made, and in order to understand the basis of the doctor’s treatment rendered to the patient, but the diagnosis/prognosis could not be admitted for the truth of its contents. I think this decision restores the law.”
Prior judicial decisions allowed treating physicians to give opinion evidence, says Rashid, but amendments to Rule 53.03 complicated the process.
“This decision clarifies that the amendments to the rule do not change what was previously allowed before 2010,” she says. “It’s within the scope of the physician’s expertise to make a diagnosis and prognosis. It was an unfair result not to have the court accept that diagnosis and/or prognosis without compliance with the requirements of Rule 53.03. It increased litigation costs because it increased the number of experts we retained to adduce expert evidence on points that a treating physician may ordinarily be able to opine on.”
Rashid says one way of skirting the trial and Divisional Court decisions in Westerhof was to nonetheless admit treating physicians’ reports under s. 52 of the Evidence Act, but that still gave rise to opposition by defence counsel based on the Westerhof decision.
“It was a well-reasoned decision and a great result,” she says.