November 9, 2015

As I previously blogged, the Court of Appeal for Ontario held in Westerhof v. Gee Estate, 2015 ONCA 206 that witnesses with special expertise who give opinion evidence not formed for the purposes of litigation do not have to comply with the strict procedural requirements for expert witnesses. The losing party sought leave to appeal this decision to the Supreme Court of Canada but the Supreme Court dismissed the application for leave to appeal.

In civil cases such as Westerhof there is no automatic right to have an appeal heard by the Supreme Court. Instead, a prospective appellant must seek leave to appeal the provincial appellate court’s decision. This application for leave is done in writing. While an oral hearing may be ordered to determine whether leave should be granted, in practice the matter is usually decided on the written record before the Supreme Court.

A quorum of three justices (here Chief Justice McLachlin and Justices Moldaver and Gascon) hear leave to appeal applications and will grants leave to appeal if they are of the opinion that any question involved in the appeal is:

  1. one that ought to be decided by the Supreme Court by reason of its public importance or the importance of any issue of law (or any issue of mixed law and fact) involved in that question; or
  2. of such a nature or significance as to warrant decision by the Supreme Court.


As such, the Supreme Court’s dismissal of a leave application does not necessarily mean that it agrees or disagrees with a lower court’s decision, just that the above test was not met. As is tradition, the Supreme Court gave no reasons for dismissing the application for leave in Westerhof. While the Supreme Court did order costs, typically such cost awards are not particularly large and are dealt with by the court’s registrar.

This decision is an example of a dog that did not bark. Westerhof remains good law and the final word in Ontario with respect to the treatment of witnesses with special expertise who provide opinion evidence. Estate litigators who rely, for example, upon the evidence of medical professionals not retained as formal experts can breathe a sigh of relief: medical professionals may continue to testify about their opinions that arose directly from their treatment of patients without complying with the strict procedural requirements for expert witnesses. The uncertainty that the state of the law could be changed by the Supreme Court has now been lifted.