Ontario Court Rules On "Participant Expert" Witnesses

Following up on its historic decision in Moore v. Getahun, the Ontario Court of Appeal has released a second decision relating to expert witnesses.  In the case (indexed as Westerof v. Gee Estate, 2015 ONCA 206 CanLII), the court distinguished between expert witnesses who were retained "by or on behalf of a party" and what the court referred to as “participant experts”, i.e. witnesses with special skill, knowledge, training or experience who were involved in the underlying facts of the case or "non-party experts", i.e. witnesses who had formed a relevant opinion based on personal observations for a purpose other than the litigation.  The Court of Appeal held that such experts do not have to comply with the requirements of rule 53.03 of the Ontario Rules of Civil Procedure, i.e. prepare an expert report and sign an acknowledgement of his or her duty as an expert.   

 

In this case, the plaintiff Westerof was injured in a car accident in 2004 when the car in which he was a passenger was struck from behind by another vehicle travelling at twice the posted speed limit.  Mr. Westerof suffered injuries and was examined by his family doctor and a number of other doctors who he called to testify at the trial. 

 

At trial, the trial judge ruled inadmissible the opinion evidence concerning history, diagnosis and prognosis from the doctors who were either participant experts or non-party experts.  The trial judge ruled that these witnesses were required to comply with rule 53.03 and had not done so.  He dismissed the action.

 

Mr. Westerof appealed to the Divisional Court.  The Divisional Court disagreed with the trial judge but held that the important distinction as to admissibility of the evidence was “not in the role or involvement of the witness but in the type of evidence sought to be admitted”.   The Divisional Court held that if the evidence in issue is opinion evidence, then the witness must comply with rule 53.03.   If the evidence is factual evidence then the witness need not comply. 

 

The Ontario Court of Appeal unanimously overturned the ruling of the Divisional Court.  Justice Simmons writing for the court held that the type of evidence, whether fact or opinion, is not the key factor in determining to whom rule 53.03 applies.  In her opinion, participant experts and non-party experts may give opinion evidence without complying with rule 53.03.  Accordingly she ordered a new trial in the case.

 

In reaching her conclusion for the court, Justice Simmons 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:

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

 

The court held that participant experts are those witnesses whose evidence relates to their observations of the underlying facts.  Non-party experts are those experts who have formed a relevant opinion based on personal observations or examinations relating to the subject of the litigation for a purpose other than the litigation. 

If a participant expert or non-party expert gives opinion evidence extending beyond those limits they must comply with rule 53.03 with respect to the portion of their opinions which extend beyond those limits.

 

In reaching its conclusions, the Ontario Court of Appeal made the following observations:

 

1. the jurisprudence prior to 2010, i.e. prior to the Osborne Report on reform of the civil justice system, is relevant and the Divisional Court’s failure to refer to the pre-2010 jurisprudence was a significant oversight.  There is no basis for concluding that the pre-2010 jurisprudence did not continue to apply following the 2010 amendments to the rules relating to expert witnesses;
    
2. the text of the 2010 amendments supports the view the rule 53.03 does not apply to participant experts or non-party experts.  The expert must be engaged "by or on behalf of" a party before the rule applies;
    
3. requiring participant experts and non-party experts to comply with rule 53.03 can only add to the cost of litigation, create the possibility of delay because of potential difficulties in obtaining compliant reports and add unnecessarily to the workload of persons not expecting to have to write such reports.

Regards,

Blair