Madam Justice Helen MacLeod-Beliveau has released a decision that might have very significant implications for civil litigation. Although the action involved a personal injury claim, its implications extend to expert witnesses in any civil lawsuit.
In McNeill v. Filthaut, 2011 ONSC 2165 (CanLII). Her Honour was considering the scope of Rule 53.03 of the Rules of Civil Procedure, which imposes certain obligations on “every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules”. Those obligations include providing a written report that summarizes the expert’s opinion and signing a written acknowledgement of the duty to provide objective unbiased evidence. Also under consideration was Rule 4.1, which sets out the duty of an expert.
Specifically, in this case, she had to decide whether the defendant in a personal injury action could call as witnesses at trial several experts who had all been retained by the accident benefits insurer, not by the insurer that was seeking to call them at trial. Readers will recall that this issue arose last year in what Justice MacLeod-Beliveau referred to as “the seminal case of Beasley v. Barrand,  O.J. 1466 (S.C.)”. In that case, to the dismay of the defence bar and their clients, Justice Moore held that experts retained by accident benefits insurers had to first comply with Rule 53.03 before they could give evidence in a tort action and that those requirements had not been met in that case. In practical terms, it would be at least difficult, although perhaps not impossible, to comply with Rule 53.03 in the case of non-retained experts.
Justice MacLeod-Beliveau reviewed the Beasley case, as well as Anand v. State Farm, (23 April 2010, unreported) Court File No. 04-CV-266354CM1, Slaught v. Phillips (18 May 2010, unreported) Court File No. 109/07, Jeffrey v. Baker,  O.J. No. 4415 (S.C.) and Kusnierz v. Economical Mutual Insurance Co.,  O.J. No. 4462 (S.C.), most of which had followed Beasley.
After considering the authorities, Her Honour declared that “the requirements outlined in Rule 53.03, as they relate to expert witnesses, do not apply to individuals retained by non-parties to the litigation”. She also found that Rule 4.01 and Form 53 (acknowledgement of expert’s duties) apply only to experts retained by parties. So, in this case, the defendant was free to call at trial the experts retained by the accident benefits insurer. (The trial is to be held next month, so this will happen quickly.)
The implications of this ruling might extend further than is apparent at first blush. Rule 53.03 requires that before a party can call an expert witness, a report, summarizing that expert’s opinion, must be served on the opposing parties not less than 90 days before the pre-trial conference. Rule 53.03(2.1) sets out what the report must contain:
(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.
And Rule 4.01 provides:
4.1.01 (1) 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.
(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.
First of all, what is an “expert”? Rule 4.1 makes it clear that it applies only to witnesses who are providing opinion evidence. So, for example, a family physician who gives factual evidence as to the course of treatment that a plaintiff received, would not be caught by this rule. Nor would Rule 53.03 have any application in such circumstances.
So, these two rules apply only to experts who are asked to give opinion evidence. According to Justice MacLeod-Beliveau’s ruling, the rules do not apply if the experts were not retained by or on behalf of a party. Where that is the case, it would appear that there is no obligation to serve any sort of report as a prerequisite to having the expert testify. The expert would not have to acknowledge an obligation to be objective and unbiased. No pre-trial disclosure of the expert’s qualifications and experience, nor of the instructions provided. Of course, the expert would have to be qualified as such at trial in order to be able to give opinion evidence, but until then, the party calling the expert would have to provide no more information than in the case of a fact witness.
And the scope of the decision would go beyond the “accident benefits expert” situation. Consider, for example, a construction accident that gives rise to multiple claims. Imagine that one claimant obtains an oral opinion from an engineering expert but then settles the claim prior to trial. If another claim were to proceed to trial and if one of the parties in that action became aware of the opinion of the expert in the first case, what would prevent the party from calling that engineer at trial, without any written report having been served or Rule 53.03 having been otherwise satisfied?
Even Rule 31.06(3), which provides that “[a] party may on an examination for discovery obtain disclosure of the findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined that are relevant to a matter in issue in the action and of the expert’s name and address”, is limited to experts “engaged by or on behalf of [a] party”.
It therefore seems arguable that the only information that a party would be entitled to learn prior to trial about an expert not retained by the opposing party, would be limited to that which would be available in relation to a fact witness. (Under Rule 31.06, “[a] party may on an examination for discovery obtain disclosure of the names and addresses of persons who might reasonably be expected to have knowledge of transactions or occurrences in issue in the action, unless the court orders otherwise.”)
And, to continue along this line, would Justice MacLeod-Beliveau’s declaration that Rule 53.03 does not apply to experts not retained by a party to the lawsuit, mean that such experts do not owe the duties of objectivity and impartiality set out in Rule 53.03?
As Her Honour observed in this case, “The existing jurisprudence interpreting Rule 53.03 is in a state of flux and uncertainty.” It seems inevitable that the issues raised by these cases will have to be resolved by an appellate court.