In a post on this blog in January, the Ontario Court of Appeal's ruling in Moore v. Getahun was discussed. That case saw the Ontario Court of Appeal overturn a lower court's ruling in respect of the practice of lawyers reviewing draft reports of expert witnesses. 

The Court of Appeal has also just released another decision overturning a lower court's ruling on an issue involving expert witnesses. This time, the key question at issue was the very core of what constitutes an "expert" witness: specifically, to whom do the specific rules in the Ontario Rules of Civil Procedure concerning expert witnesses apply?

The case is indexed as Westerhof v. Gee Estate though it is actually a decision in two cases released concurrently on the same issue. The facts are simple: Mr. Westerhof was a passenger in a car that was rear-ended by a car that was doing double the speed limit and he suffered injuries. He was, naturally, subsequently treated by a number of people from his family doctor to psychiatrist to a chiropractor and others. Many of these witnesses were not considered to be "expert witnesses" by Westerhof's lawyer for the purposes of trial, and their evidence did not comply with Rule 53.03 (which sets out specific requirements for what information must be contained in an expert report) because he did not believe that it needed to do so. The trial judge excluded much of this evidence as being expert evidence that was non-compliant with the Rules and dismissed the action. 

Westerhof appealed to the Divisional Court in 2013, and the appeal was dismissed. They concluded that 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."

This decision was appealed to the Ontario Court of Appeal. This time, however, the appeal was granted and a new trial ordered. Writing for a unanimous panel of three, Madam Justice Simmons disagreed with the Divisional Court's conclusion that the type of evidence (fact or opinion) is the key factor in determining if Rule 53.03 applies. Instead, she held that a witness with special skill, knowledge, training or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with Rule 53.03 where:

  • the opinion to be given is based on the witness' observation of or participation in the events at issue; and
  • the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and expertise while observing or participating in such events.

Simmons J.A. termed these witnesses "participant experts" (she also held that the rule does not apply to experts retained by a non-party where said expert has formed an opinion based on personal observation or examination, referring to the example of an expert retained by a statutory accident benefits insurer).

This decision will have significant impact in a number of cases, particularly those involving personal injury.