April 2, 2015

In Westerhof v. Gee Estate, 2015 ONCA 206, the Court of Appeal for Ontario heard appeals from Westerhof v. Gee Estate and McCallum v. Baker, two car crash cases which explored the nature of expert witnesses. The Court of Appeal concluded that witnesses with special expertise who give opinion evidence not formed for the purposes of litigation do not have to comply with the strict requirements for expert witnesses set out in the Rules of Civil Procedure.

In 2010, the Rules of Civil Procedure were amended to ensure that expert witnesses would not act as “hired guns.” Rule 4.1.01 set out that the overriding duty of every expert engaged by or on behalf of a party to provide opinion evidence that is fair, objective and non-partisan and within the expert’s area of expertise. Under rule 53.03, any expert witness who testifies must serve an expert report and sign an acknowledgment of the expert’s duty.

Before the Court of Appeal’s ruling, it was open question whether rule 53.03 applied only to experts engaged by a party or whether it applied more broadly to all witnesses with special expertise who would give opinion evidence. In Westerhof v. Gee Estate, 2013 ONSC 2093 (Div. Ct.), the Divisional Court held that the court should not examine the role of the witness but the type of evidence they would provide. If the evidence was opinion evidence, compliance with rule 53.03 was required; if the evidence was factual evidence, compliance with rule 53.03 was not required. As such, the Divisional Court upheld the trial judge’s ruling that opinion evidence concerning history, diagnosis and prognosis from various medical practitioners was inadmissible.

The Court of Appeal disagreed.

Justice Simmons of the Court of Appeal discussed two categories of witnesses who could provide opinion evidence without complying with rule 53.03. First, “participant experts”: experts who formed opinions based on their participation in the underlying events rather than because they were engaged by a party to the litigation to form an opinion (e.g. a treating physician). Second, “non-party” experts: experts retained by a non-party to the litigation, who formed opinions based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation (e.g. statutory accident benefits insurers).

Witness who had special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation are allowed to give opinion evidence for the truth of its contents without complying with rule 53.03 when:

  1. the opinion to be given is based on the witness’s 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 events.

If any such witness had evidence that went beyond the scope of an opinion formed in the course of participation in the events at issue or observation for purposes other than the litigation, then they would have to comply with rule 53.03 with respect to the portion of their opinion which extended beyond those limits.

Justice Simmons provided several reassurances that witnesses giving expert evidence without complying with rule 53.03 would not create problems, noting that this rule was not needed to ensure that there were no disclosure issues regarding participant and non-party experts. In many instances, these experts will have prepared documents summarizing their opinions about the matter contemporaneously with their involvement, which could be obtained in the discovery process. If there were no such summary, a party could seek the disclosure of any opinions, notes or records of participant experts and non-party experts the opposing party intends to rely on at trial.

Finally, Justice Simmons reiterated that Courts would retain their gatekeeper function with respect to any evidence, including opinion evidence from a participant or non-party expert. It would therefore still be open for the court to exclude some or all the evidence of such an expert.

This decision will help minimize both cost and delay in estate litigation, especially where capacity is an issue, as it affirms that the evidence of medical professionals not engaged by a party may testify about opinions that arose directly from their treatment of a patient without complying with rule 53.03.

PS – My fellow blogger Audrey Miller at AllAboutEstates.ca has been mentioned in a Financial Post article about a new planning tool she has created known as the Wellness Binder. This binder records medical history, financial information, insurance policies and, if necessary, the individual’s wishes for end of life care.