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

Documents for use in British Columbia courts must be written in English

In 1731 the English Parliament passed a statute that required proceedings in the courts of England to be conducted in English. The act was entitled: An Act that all Proceedings in Courts of Justice within that part of Great Britain called England, and in the Court of Exchequer in Scotland, shall be in the English Language, 1731, 4 Geo. II, c.26 (the "1731 Act"). Over 100 years later, on November 19, 1858,  the 1731 Act was received into the law of the province of British Columbia and has not been modified since.  It remains in force in British Columbia pursuant to the requirements of the British Columbia Law and Equity Act (1996).

In 2011, a BC French Language School Board and a Federation of Francophone parents, brought an interlocutory application to the British Columbia Supreme Court to have exhibits to affidavits written in French introduced into evidence. The applicants intended to rely on the content of the exhibits, which were prepared before the litigation was contemplated, to further their roles in the "protection and promotion of French-language education in the province". The province of British Columbia objected to the admission of the exhibits without accompanying English translations on the basis that the 1731 Act and Rule 22-3 of the BC Supreme Court Civil Rules (the "Rules") both required "court proceedings" and any "document prepared for use in the court" to be in English. The Chamber's judge denied the application. The British Columbia Court of Appeal dismissed the applicants' appeal.

In a split (4-3) decision, the Supreme Court of Canada dismissed the applicants' appeal to that court, but allowed them to recover their costs from the province throughout all proceedings.

The court's majority decision was written by Mr. Justice Wagner:

Justice Wagner held that the BC legislature had properly used its powers to regulate the language to be used in court proceedings by adopting provisions that required civil proceedings, which included exhibits to affidavits, to be in English. In doing so, the legislature ousted the inherent jurisdiction of the courts and therefore there was no residual discretion left to admit documents in other languages without an English translation.

In addition, the BC legislature had not repealed or modified the 1731 Act, nor had it implicitly modified it by "occupying the field" with subsequent legislation. To the contrary, the BC courts have repeatedly endorsed the 1731 Act and the legislature has declined to change the law on language in court proceedings.

Even if the 1731 Act did not apply, Rule 22-3 of the Rules required that exhibits attached to affidavits and filed in court be in English. The Rule therefore limits the courts inherent jurisdiction to admit documents in languages other than English.

Finally, it was not inconsistent with the Canadian Charter of Rights and Freedoms for the BC legislature to restrict the language of court proceedings to English. The Charter does not require any province other than New Brunswick to provide for court proceedings in both official language.

The dissenting judgment was written by Justice Karakatsanis:

Justice Karakatsanis found that neither the 1731 Act nor the Rules addressed the language of exhibits in court proceedings. In light of the silence of the BC legislature on the issue and pursuant to the court's inherent jurisdiction, judges could allow French language documents not prepared for use in court to be filed in evidence as exhibits where this will ensure the administration of justice according to law in a regular, orderly and effective manner. In a somewhat technical distinction, Justice Karakatsanis found that under the 1731 Act, the prohibition on foreign languages in "proceedings" no matter how broadly proceedings is defined - does not address the language of exhibits filed as evidence or prevent the tendering or acceptance of a document in a language other than English.

Similarly, the Rules do not define "evidence" or "exhibit" and do not directly address the language of the proceedings other than Rule 22-3 which refers to documents "prepared for use in the court". The exhibits at issue in the appeal were created in French long before litigation was contemplated and therefore were not prepared for use in the court.

In the absence of clear and precise statutory language addressing the language in which documents not prepared for use in court must be filed, the BC legislature had not ousted the court's inherent jurisdiction. Therefore the Supreme Court could exercise that jurisdiction to admit French documents if doing so would uphold, protect and fulfil the judicial function of administering justice.

Regards,

Blair