January 15, 2014. I understand that leave to appeal this decision has been granted.
In Westerhof v. Gee (Estate), 2013 ONSC 2093 (CanLII), the Divisional Court (Matlow, Aston & Lederer JJ.) has addressed an area of the law that has been in some disarray over the last few years: the application of rule 53.03, which deals with expert evidence. Some cases have held that the rule, which sets out the requirements for delivery of experts’ reports, does not apply to certain categories of expert witnesses. However, in the wake of the Westerhof decision, there will now be few situations in which the rule does not apply.
The case involved a personal injury claim resulting from a motor vehicle accident. The action proceeded to trial before a jury. It was ultimately dismissed by the trial judge on the basis that the plaintiff’s injuries had not met the Insurance Act threshold.
The plaintiff appealed, in part on the ground that the trial judge had erred in various evidentiary rulings that had had the effect of limiting the expert evidence that was heard by the jury. This brought into question the extent to which rule 53.03 had to be complied with.
The Divisional Court unanimously dismissed the appeal. In so doing, it rejected the proposition, which had been accepted in McNeill v. Filthaut, 2011 ONSC 2165 (CanLII), that rule 53.03 does not apply to certain categories of expert witnesses.
The rule reads as follows (with the emphasis taken from the reasons of the Divisional Court):
53.03(1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference required under Rule 50, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). O. Reg. 438/08, s. 48.
(2) A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). O. Reg. 438/08, s. 48.
(2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information:
1. The expert’s name, address and area of expertise.
2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.
3. The instructions provided to the expert in relation to the proceeding.
4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.
5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.
6. The expert’s reasons for his or her opinion, including
i. a description of the factual assumptions on which the opinion is based,
ii. a description of any research conducted by the expert that led him or her to form the opinion, and
iii. a list of every document, if any, relied on by the expert in forming the opinion.
7. An acknowledgement of expert’s duty (Form 53) signed by the expert. O. Reg. 438/08, s. 48.
The trial judge had had to rule on the admissibility of several types of testimony which counsel for the plaintiff had sought to adduce. These included a lay witness who was tendered as a supposed fact witness (to whom rule 53.03 would not apply), expert witnesses who had not complied with rule 53.03 but who were able to testify as fact witnesses and treating physicians.
There were also some witnesses who, the trial judge found, were entitled to provide expert opinion evidence in one field (such as neurology) but not another (psychiatry).
The appellant argued that, in making his rulings, the trial judge had failed to distinguish appropriately between experts retained for purposes of the litigation and those who were testifying because they had treated the plaintiff.
The court looked at some of the cases that have considered rule 53.03 since its enactment. In each of McNeil, supra, Slaght v. Phillips (18 May 2010, unreported, Court File No. 109/07) and Kusnierz v. Economical Mutual Insurance Company 2010 ONSC 5749 (CanLII), trial judges drew a distinction between experts retained for purposes of the litigation, to whom rule 53.03 certainly applies, and experts who are engaged, in some manner, in treatment and to whose evidence the rule either does not apply or applies more loosely. In McNeil, in particular, the court had considered rule 53.03 together with rule 4.1.01. which reads as follows (again, with the Divisional Court’s emphasis):
It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,
(a) to provide opinion evidence that is fair, objective and non-partisan;
(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and
(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.
The court in McNeil concluded that rules 4.1.01 and 53.03 must be read together as part of a comprehensive “…framework for the duty of an expert called as witness at a trial” and that the opening words of rule 4.1.01 also apply to rule 53.03. As a result, it was held in McNeill that only experts retained by or on behalf of a party must comply with rule 53.03.
Similar approaches were taken in Slaght and Kusnierz.
The Divisional Court rejected this approach. In its view, the error in those cases was in looking at who the witnesses are instead of what the tendered evidence was:
The important distinction is not in the role or involvement of the witness, but in the type of evidence sought to be admitted. If it is opinion evidence, compliance with rule 53.03 is required; if it is factual evidence, it is not.
Based on this distinction, it is not difficult to see that, where the expert has not been, qualified to give the opinions to be tendered or where the report relied on to advance the opinion does not comply with rule 53.03, it is correct for the trial judge to refuse to admit the evidence.
The court considered, with apparent approval, the decision of Justice J. Patrick Moore in Beasley v. Barrand, 2010 ONSC 2095. In that case, Justice Moore had held that compliance with rule 53.03 was required before a witness could provide expert opinion evidence to the court.
The Divisional Court acknowledged that treating physicians are in a somewhat different category from other witnesses, but only in that they are in a position to provide fact evidence as to their observations of the injured plaintiff and a description of the treatment provided. Such evidence is not an opinion and therefore, rule 53.03 is not engaged.
But, as the court observed, “[i]t is when the witnesses seeks to offer opinions as to the cause of the injury, it’s [sic] pathology or prognosis that the evidence enters into the area of expert opinion requiring compliance with rule 53.03.” [para. 23]
The court did recognize, as Justice Moore had done in Beasley, that there can conceivably be circumstances that would make compliance with rule 53.03 “difficult”. The example given by Justice Moore was “an expert who is retained by a person outside of the litigation may be uncooperative or be professionally unable to communicate with one or more of the parties at trial”. The Divisional Court did not offer guidance as to what is to be done in such situations, saying only that the problem did not arise in this case.
In my post about the Beasley case, I commented that rule 53.03, as interpreted in that case, “will clearly create a significant barrier for defence counsel seeking to elicit [evidence from experts retained by accident benefits insurers]”. That became less of an issue in the wake of McNeill (my post about that case is here), but has now come back to life as a result of Westerhof.
However, the latter decision creates issues for plaintiffs’ lawyers as well as for defence counsel. It appears that it will now be necessary to serve a report under rule 53.03 even for treating health care practitioners. And given that those practitioners are often “passionate advocates” for their patients, as was noted in Kusnierz, there are likely to be questions as to whether, for instance, a family doctor will ever be able to qualify as an expert under r. 53.03.
It should also be noted that this debate is not limited to the realm of personal injury litigation. In this post, I discussed several cases that considered the extent, if any, to which a witness could be permitted to give expert testimony without a report having been served under rule 53.03. In one of the cases discussed in that post, Justice Lauwers, citing McNeill, had said that “the witness had been doing ‘his ordinary work’ in preparing an estimate of remediation costs ‘and can testify as to the opinions he formed that are relevant to that ordinary work’.” This led me to wonder whether there was an “ordinary work” exception to rule 53.03. If there was one before, it appears that after the Divisional Court’s ruling in Westerhof, there isn’t now.