In some estate litigation the evidence of an expert witness can be a critical piece of evidence. Rule 53.03 of the Rules of Civil Procedure governs expert evidence and expert reports. Section 52 of the Evidence Act addresses reports and evidence of practitioners who are identified as: (a) a member of a College as defined in subsection 1 (1) of the Regulated Health Professions Act, 1991; (b) a drugless practitioner registered under the Drugless Practitioners Act; or (c) a person licensed or registered to practise in another part of Canada under an Act that is similar to an Act referred to in clause (a) or (b).
In the case of Salmon v. Rambough, 2024 ONSC 1186 (CanLII) (“Rambough”), the court considered the admissibility of a medical note written by the deceased’s family physician. The medical note was part of the deceased’s medical file produced during the litigation and contained the opinion of the doctor as to the deceased’s testamentary capacity. The medical note was not part of a retroactive capacity assessment or other expert report. It was tendered by the applicant under s. 52 of the Evidence Act.
The court found that the doctor was not an “expert witness” under rule 4.1.01 and Form 53. Rather, the doctor was a “participant expert”. The court explained at paragraph 75 of the decision, that a participant expert is “one who forms opinions based on their participation in the underlying events as treating physician. Participant experts may give opinion evidence for truth of content after notice pursuant to s. 52 of the Evidence Act without complying with rule 53.03 – Rules of Civil Procedure.” The court cited Girao v. Cunningham, 2020 ONCA 260 (CanLII) (“Cunningham”), which confirmed that while s. 35 of the Evidence Act is limited to business records, s. 52 relates to medical reports and opinion. The medical record which includes opinion can be admitted into evidence without calling the medical practitioner. The opinion can then be accepted for the truth of its contents. However, the court in Cunningham found that the trial judge must “at the request of a party oblige the medical practitioner to testify in order to permit cross-examination.” In other words, if the medical record is going to be tendered, and admissible, for the truth of its contents then it must be tested if the opposing party requests it.
In Rambough, the applicant refused to allow the medical practitioner to be subject to cross-examinations. The respondent objected to the admissibility of the medical record because of the refusal to permit cross-examinations. The court agreed and found that the medical note was inadmissible. Despite the relevance of the medical note to the issue of the deceased’s testamentary capacity it was struck from the record. Section 52 of the Evidence Act is important for any litigator to know but the requirements for admissibility must be met.
