The Court of Appeal for Ontario has finally released its decision in Westerhof v Gee Estate, 2015 ONCA 206, providing clarity as to the application of Rule 53.03 of the Rules of Civil Procedure, which requires that a party who intends to call an expert witness at trial, shall deliver a report, signed by the expert, containing specific criteria as set out by the Rule. The Court specifically dealt with whether this Rule applies only to litigation experts or whether it applies more broadly to all non-party experts.
So what’s the difference you ask? A “non-party expert” is a potential witness with special knowledge who formed an opinion based on their participation in the events giving rise to the action (such as a treating physician). A “litigation expert” is a specialist retained by a party for the sole purpose of providing opinion evidence in relation to a proceeding.
History of the Proceedings
At trial, the plaintiff sought to call evidence from nine medical witnesses as to the cause and extent of his injuries. Only two experts were permitted to give their evidence in its entirety, because the trial judge ruled that medical witnesses could not give opinion evidence unless they complied with the Rule. Based on the admitted evidence, the trial judge determined that the plaintiff had not met his burden under the relevant provision of the Insurance Act.
The plaintiff appealed to the Divisional Court and took the position that the trial judge erred by failing to distinguish between evidence given by litigation experts and non-party experts. The Divisional Court held that the relevant distinction is not the role of the witness, but rather the type of evidence sought to be admitted.
The Court of Appeal Overturns the Divisional Court’s Decision
In unanimously overturning the Divisional Court’s decision, the Appellate Court held that the Rule only applies to litigation experts and that non-party experts need only comply with the rules of evidence and civil procedure.
Here’s the Gist of It
The Court found that, as a result of the trial judge’s erroneous reading of the Rule, the plaintiff was prevented from placing key evidence before the judge and jury that could have impacted the outcome of the trial. While this decision was made in the context of a personal injury action, it is of wider application to civil actions, in that it supports a principle of disclosure and ensuring that all key evidence is put before the trier of fact.