  by John Polyzogopoulos and Simon Reis
  Originally published in Commercial Litigation Update (April 2015)

  When can a witness who has not been retained by a party to the litigation give opinion testimony at trial?
  Must that witness comply with the requirements of Rule 53.03 of the Rules of Civil Procedure, which is
  directed at expert witnesses and requires that no opinion evidence may be tendered unless a report is pre-
  pared and signed by the expert witness, who must in turn acknowledge that he or she has a duty to the
  Court to be unbiased and impartial?

  The confusion surrounding these critical issues was cleared this past week with the release of the Court
  of Appeal’s decision in Westerhof v Gee Estate. The result of the decision is good news for litigants and
  their counsel, as all relevant evidence will be before the courts while at the same time, the cost and delays
  of preparing expert reports that comply with the Rules of Civil Procedure will be minimized.

  The Facts of

  Westerhof and its Procedural History

  The Plaintiff Mr. Westerhof was injured in a car accident. The Defendant Estate admitted liability and
  the trial proceeded on causation and damages alone. At trial, rulings were made on the admissibility of
  various medical evidence. The trial judge ruled that medical witnesses who treated or assessed Mr.
  Westerhof could not give opinion evidence concerning their diagnosis or prognosis as they were required
  to first comply with Rule 53.03 even though they were not witnesses retained to provide expert evidence
  for the litigation. The medical witnesses included Mr. Westerhof ’s treating chiropractor and psychiatrist
  as well as two medical witnesses retained by Mr. Westerhof ’s Statutory Accident Benefits (SABS) insurer.

  On appeal, the Divisional Court affirmed the trial judge’s decision, concluding that all opinion evidence
  requires compliance with Rule 53.03, including opinion evidence from treating medical practitioners who
  were not retained by a party to the litigation. In so holding, the Divisional Court focused on the nature of
  the proffered evidence rather than the status of the witness as previous Courts had done. If the evidence
  is opinion evidence as it relates to such matters as causation, diagnosis, and prognosis compliance with
  Rule 53.03 was required. If the evidence is factual evidence alone - such as observations of the injured
  plaintiff and a description of the treatment provided - compliance was not required.

  The Decision of the Court of Appeal
  The Court of Appeal rejected the Divisional Court’s conclusions. The Court of Appeal held that a wit-
  ness with special skill, knowledge, training or experience who has not been engaged by a party to the lit-
  igation may give opinion evidence at trial, without complying with Rule 53.03 where

  • the opinion to be given is based on the witness’s 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, knowl-

  edge, training and experience while observing or participating in such events.

  Not All Experts Are Treated Like Experts:

  The Court of Appeal Provides Much

  Needed Clarity on the Requirements of

  Calling Expert Evidence

  e x p e c t t h e b e s t

  John Polyzogopoulos is a
  partner in Blaney McMurtry’s
  Commercial Litigation group.
  His practice covers a wide
  variety of commercial mat-
  ters.

  He is the editor of this
  newsletter, the editor of
  Blaneys Ontario Court of
  Appeal Summaries Blog and
  a member of the executive of
  the Ontario Bar Association’s
  Civil Litigation Section.

  John may be reached directly
  at 416.593.2953 or
  jpolyzogopoulos@blaney.com.

  The Court of Appeal termed such experts “participant experts,” which would include a treating physi-
  cian.

  In turn, the Court of Appeal concluded that a non-party expert - such as a physician retained by a SABS
  insurer - who was retained for a purpose other than the litigation, may give opinion testimony where the
  opinion is based on personal observations or examinations relating to the subject-matter of the litigation.

  Applying these principles, the Court considered each impugned evidentiary ruling made by the trial judge.
  The Court concluded that some of the treating physicians and non-party experts should not have been
  excluded from giving expert opinion testimony for failure to comply with Rule 53.03, while others were
  properly excluded. Notably, the Court held that the trial judge erred in excluding the opinion testimony
  of a treating psychiatrist and pain specialist, as well as two non-party experts who conducted a function-
  al abilities assessment of Mr. Westerhof in August 2005 and prepared a report for Mr. Westerhof ’s SABS
  insurer. Despite their non-compliance with Rule 53.03, these witnesses were entitled to testify concern-
  ing the medical history they took from the plaintiff, the tests they performed, and the treatment results
  they observed, including their observations about whether Mr. Westerhof was experiencing pain.

  The Court held that the trial judge’s erroneous evidentiary rulings prevented Mr. Westerhof from placing
  important evidence before the judge and jury that could reasonably have affected the outcome of the trial.
  These errors warranted the granting of a new trial.

  The Implications of

  Westerhof

  The decision in Westerhof and its companion case, McCallum v Baker, brings much needed clarity to the
  scope of Rule 53.03 and will have significant practical consequences for litigants heading to trial.

  Although, Westerhof arose in a personal injury context, the decision applies equally across other areas of
  civil and commercial litigation, where “participant” or non-party expert witnesses not retained by one of
  the parties to the litigation may be present, such as engineers, financial advisors, accountants, and envi-
  ronmental consultants.

  Westerhof provides greater certainty to litigants that they will be able to introduce the necessary evidence
  to prove their case. Previously, where an expert witness did not comply with Rule 53.03, litigants were
  forced to either abandon the expert’s evidence or seek leave of the Court before trial to excuse non-com-
  pliance. Now, where the requirements stated in Westerhof are met, litigants will have greater certainty know-
  ing whether their treating physicians or other experts not retained for the purpose of trial can testify.

  Lastly, Westerhof may help to cut down on the delay and costs of going to trial. Where an expert witness is
  uncooperative, unavailable, or otherwise unable to meet the requirements of Rule 53.03, the expert’s evi-
  dence may still be introduced, without the possibility of further delay and costs in obtaining Rule 53.03-
  compliant reports or in retaining new experts.

  Simon Reis is currently arti-
  cling with Blaney McMurtry
  LLP. He received his J.D. from
  Western University and holds
  a Bachelor of Arts Honours
  degree in Political Studies
  and History from Queen's
  University.

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