Rule 53.03 Applies Only To “Litigation Experts”

In Continental v. J.J.’s Hospitality, 2012 ONSC 1751 (CanLII), Mr. Justice Edward J. Koke has provided the latest judicial interpretation of Rule 53.03, which deals with the evidence of expert witnesses. He held that that rule only applies to “litigation experts”, i.e., those who are hired expressly for the litigation and who have no other involvement with the subject matter of the suit.

In this case, the plaintiff roofing company, Continental, contracted to do work on the defendant’s building. During the course of the work on the defendant’s roof, substantial damage resulted from a leak. The roofer sued for the contract price and the defendant counterclaimed for compensation for the damage to its building.

Both before and after Contintental began its work, the defendant had enlisted the assistance of one Bruce Caughill, an architect and engineer, to act as a consultant about the roof. He had undertaken inspections and had made recommendations with respect to repair or replacement of the roof.

Mr. Caughill had prepared a number of reports for the defendant that were served on Continental. The defendant plans to call Mr. Caughill to give opinion evidence at the trial, scheduled for August, 2012. On this motion, Continental asked for an order that the reports and the testimony of Mr. Caughill were inadmissible.

Continental argued that:

  • Mr. Caughill’s evidence was not necessary as it was not outside the experience or knowledge of the trial judge;
  • he had opined on the “ultimate issues”, thereby usurping the role of the trial judge; and
  • he was biased in favour of the plaintiff, due in part to his long business relationship with it.

Although the reasons do not address the question, it appears that the defendant had made no attempt to have the witness sign a Form 53, the acknowledgement of an expert’s duty.

Justice Koke reviewed the genesis of the 2010 reforms to Rule 53. The rule now sets out requirements governing the contents of an expert’s report and provides for the signing of the acknowledgement of an expert’s duty. Rule 4.1.01 is also new: it codifies “the duty of an expert”.

He then considered the question, “To Whom Does Rule 53.03 Apply?” This issue has received quite a bit of attention from the courts lately and Justice Koke discussed the jurisprudence, which has dealt with the testimony of treating health practitioners (Slaght v. Phillips and Burgess v. Wu), official investigators (Hall v. Kawartha Karpet & Tile Co.), and practitioners who assess claimants for accident benefits insurers (McNeill v. Filthaut). He observed that “[r]ecent cases have held that Rule 53.03 is limited in its application to witnesses who are hired as ‘litigation experts’ and have not had any involvement with the subject matter of the litigation or either of the parties.”

His Honour concluded that Rule 53.03 was not intended to apply to experts such as this one, who have not been retained as “litigation experts”:

The amendments to the rule were intended to eliminate the use of “hired guns” or “opinions for sale” in civil litigation, which resulted in potentially biased evidence being given at trial. In the case of Mr. Caughill and looking at the mischief that Rule 53.03 was intended to address, I do not find him to be a typical “hired gun” or just a “litigation expert” in the circumstances of this case.

Justice Koke held that the trial judge could deal with issues of bias. On the question of usurping the role of the trial judge on the ultimate issue, he felt that this was unavoidable but that “the trier of fact will make a decision based on the totality of the evidence”.

Thus, the expert’s testimony was allowed: “Mr. Caughill is permitted to provide opinion evidence at trial with respect to the methods and procedures used by the defendant in carrying out the roof repairs, and any failures associated therewith, and with respect to the cause of the leakage of water into the building”.

In this case, the party calling the expert had obtained and served reports from the expert. But why? If Rule 53.03 does not apply to non-litigation experts, what obliges a party to serve a report? Section 52 of the Evidence Act does impose certain requirements with respect to reports of “practitioners” under the Regulated Health Professions Act, 1991 but even that provision does not say that doctors cannot testify as experts unless they have provided a report that summarizes their testimony.

So, I’m looking forward to the next logical step in the evolution of the judicial exposition of Rule 53.03: at some point, a court will be asked to decide whether there is anything that prevents a party from calling a non-litigation expert in exactly the same manner as if the person were a fact witness (i.e., without a report, a summary of qualifications, an acknowledgment of duty and the other requirements imposed by Rule 53.03).

In a similar vein, what is one to make of the requirements of Rule 31.06(3), which deals with obtaining information about experts during examination for discovery. It says:

(3) 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, but the party being examined need not disclose the information or the name and address of the expert where,

(a) the findings, opinions and conclusions of the expert relevant to any matter in issue in the action were made or formed in preparation for contemplated or pending litigation and for no other purpose; and

(b) the party being examined undertakes not to call the expert as a witness at the trial.

The word, “expert” is not defined in the Rules. And Rule (3) uses the term, “expert”, while Rule 53.03 speaks of “expert witness”.

Still, it seems pretty clear that the language of Rule 31.06(3), “an expert engaged by or on behalf of the party being examined”, is referring to what Justice Koke calls “a litigation expert” in the context of Rule 53.03. Does that mean that Rule 31.06(3) only applies to such experts? If you have happen to have in your file a report from an expert witness whom you did not retain for the litigation, does that mean that the other parties are not entitled to the information about that expert evidence that is set out in Rule 31.06(3)? (Of course, in this scenario, the report itself would have been produced, because it would not be privileged. But as for the other information contemplated by Rule 31.06(3), that’s a different question.)

Stay tuned!

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