Rule 53.03 Doesn’t Apply to Expert Witnesses Not Retained for Purposes of the Litigation

Subrule 53.03(1) of the Rules of Civil Procedure provides that, “[a] party who intends to call an expert witness at trial shall, not less than 90 days before the commencement of the trial, serve on every other party to the action a report, signed by the expert, setting out his or her name, address and qualifications and the substance of his or her proposed testimony.”

In Hall v. Karwartha Karpet & Tile, Mr. Justice Donald S. Ferguson had to consider the scope of that provision. As he characterized it, the issue in this case was “whether or not Rule 53.03 applies to a person with expertise who was involved in the history of the subject matter of the action or applies only to persons retained as experts by a party for the purpose of assisting in the litigation.”

The lawsuit arose out of a fire. The plaintiffs wished to call as a witness at trial an assistant fire chief who had investigated the fire and prepared a one-page occurrence report. As Ferguson J. observed, that report would not meet the requirements of Rule 53.03 because it did not set out the substance of, or basis for, the chief’s conclusions. Could the plaintiffs nevertheless call him as a witness? Justice Ferguson held that they could.

This decision will have broad implications for the conduct of civil litigation in this province, given the increasingly important role of expert witnesses.

In summary, Ferguson J. held:

  • Rule 53.08 [sic; His Honour refers repeatedly to this Rule, but it appears that he intended to refer to Rule 53.03] was intended to apply to persons with special expertise who are retained by a party to assist in litigation. Thus, subrule 53.03 does not even apply to this situation.
  • Section 12 of the Evidence Act, which provides that a party cannot call more than three expert witnesses without leave, does not apply to persons who were involved in the history of the matter. His Honour gave as examples the defendant in a professional negligence case against an engineer or a physician who had treated a personal injury plaintiff “in the normal course”.
  • A witness who has been involved in the history of the matter might not be qualified to testify as an expert, because of lack of independence. His Honour said that “a number of cases have now established that an expert has a duty to the court and must provide ‘independent’ opinion rather than just a ‘hired gun’ opinion for the purpose of assisting the party who retained him or her.”
  • Rule 53.03 was not intended to apply to witnesses where a party could not be expected or even be able to comply with the requirements set out above. This case was an example of that situation; the expert in question was fulfilling a duty by investigating the fire and preparing an occurrence report. The parties to the litigation would have no way of compelling him to prepare a report that satisfied the requirements of Rule 53.03.

This decision will have interesting consequences. It excepts from Rule 53.03 those experts who have become involved with a case other than through being directly hired for purposes of the litigation. How far does Justice Ferguson’s decision extend? For example, would a plaintiff be entitled to call as a witness his or her family doctor, with no notice to the defendant as to what that doctor will say in evidence, apart from what is contained in the doctor’s office chart?

It is likely that the number of experts called by parties will swell as a result Justice Ferguson’s decision that the Evidence Act‘s three-witness limit does not apply to many of them.

Finally, the ruling will probably mean that quite a few experts will be testifying at trial without at least one party (and possibly both!) knowing what they are going to say until they are in the box.

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