The proper application of the new Rules of Civil Procedure (the Rules) on expert evidence is a matter of some controversy at the moment, reflected by the recent conflict between the decisions in Beasley v. Barrand (2010) and McNeil v. Filthaut (2011), which leaves undecided the question of whether accident benefit assessors are subject to the new Rules.

In McNeil v. Filthaut, the trial judge considered the question of whether the new requirements outlined in Rules 4.1.01 and 53.03 relating to expert witnesses apply to individuals retained by non-parties to the litigation, namely, the accident benefit assessors of the plaintiff. The defendant was seeking to call as expert witnesses a number of the professionals retained by the plaintiff’s accident benefits insurer to give both factual and opinion evidence at trial.

The action arose out of a motor vehicle accident on June 23, 2001. The plaintiff claimed to be permanently disabled and unable to work because of the injuries she suffered in the accident. Following the accident, the plaintiff applied for and received statutory accident benefits from her insurer for medical and rehabilitation expenses and income replacement. To establish entitlement, the accident benefits insurer retained various medical experts to assess the plaintiff. These experts provided reports to the insurer, which included factual findings as well as opinions, such as whether the plaintiff was able to return to work. It was agreed by both the plaintiff and the defendant that the information in these reports was highly relevant to the issues.  

The plaintiff, however, objected to the accident benefit assessors giving expert opinion evidence at trial, as their reports did not strictly comply with the requirements of Rule 53.03. The defendants argued that the requirements of Rule 53.03 only apply to experts engaged by parties to the litigation, and do not apply to experts engaged by non-parties. The plaintiffs asserted that Rule 53.03 applies to all experts, regardless of whether they have been engaged by non-parties to the litigation.  

The trial judge decided that the requirements outlined in Rules 4.1.01 and 53.03, as they relate to expert witnesses, do not apply to individuals retained by non-parties to the litigation such as accident benefit medical experts. In her view, the key factor triggering application of the expert rules is found in the clear language of the Rules, namely, when an expert is “engaged by or on behalf of a party to the litigation”. Thus, the Rules were not intended to apply to experts retained by or on behalf of non-parties to litigation.  

The conclusion in McNeil v. Filthaut that Rule 53.03 applies only to litigation experts contradicts the earlier decision in Beasley v. Barrand. In the view of the trial judge in that case, it did not make sense to apply a higher standard to consulting medical experts hired by parties to the litigation and a lower standard to consulting medical experts hired by a non-party but whose opinions might assist.

Addressing this conflict, the trial judge in McNeil v. Filthaut stated that she could not concur with the Beasley v. Barrand approach. Based on both her reading and interpretation of Rules 4.1.01 and 53.03, their application is limited to experts “engaged by or on behalf of a party.” She highlighted that the ultimate purpose of the new Rules is to limit and control the proliferation of experts retained by litigants by imposing on those experts a duty of fairness, objectivity, and non-partisanship to the court, which prevails over any other obligations owed by the expert to a party. The introduction of the new Rules is an effort to eliminate the use of “hired guns” or “opinions for sale” in civil litigation, the use of which has resulted in potentially biased expert evidence being given at trial. In her view, the Rules were not drafted or intended to catch experts not hired by parties.

Unfortunately, the Beasley v. Barrand approach has caused a significant proliferation in litigation where parties have scrambled for direction as to whether the expert intended to be called is a treating expert or litigation expert, guidance on the difficult task of straining opinions out of treating expert’s anticipated evidence leaving only facts, and whether the proposed expert ought to be granted relief from non-compliance with the strict requirements of Rule 53.03 and allowed to give opinion evidence nonetheless. As long as the law is in flux and parties and their counsel need to be concerned about the Beasley v. Barrand approach, this will continue.  

The interpretation of Rules 4.1.01 and 53.03 is important and will affect every party, counsel, and trier of fact involved in litigation where expert evidence is a critical part. Hopefully, resolution of the issue will be soon in coming from the Court of Appeal.