Case: Westerhof v. Gee Estate, 2015 ONCA 206

Keywords: expert witness, evidence, neutrality, duty, opinion, Rule 53.03

Synopsis: Rule 53.03 of the Rules of Civil Procedure sets out requirements for introducing expert witness evidence at trial. Following Osborne Report recommendations, the Rule was amended in 2010 with the aim of ensuring neutrality. At issue in these cases (two appeals heard together) was to whom 53.03 applies. At the Westerhof trial, the trial judge ruled inadmissible opinion evidence from experts who had not complied with Rule 53.03 including various medical practitioners, a neurologist, and a road safety consultant/driving therapist intern. The jury awarded Mr. Westerhof $22,000 for general damages and for $13,000 past loss of income, but the trial judge dismissed the action for failure to meet the s. 267.5(5) Insurance Act threshold. The Divisional Court dismissed his appeal. Court of Appeal allowed the Westerhof appeal and ordered a new trial. The opposite occurred in the McCallum trial where a number of witnesses were permitted to give opinion evidence without complying with Rule 53.03. The C.A. dismissed the McCallum appeal.

Importance: This decision brings much needed clarity to the Rule 53.03 requirements with respect to the broader group of expert witnesses: “participant experts” and “non-party experts”. Participant experts are those witnesses who form opinions based on their participation in the underlying events. Non-party experts are those retained by a non-party to the litigation (i.e. SABS insurers) who form opinions based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation. These two types of expert witnesses can be contrasted with “litigation experts” who are experts “engaged by or on behalf of a party to provide [opinion] evidence in relation to a proceeding” (R. 4.1.01).

The C.A. ruled that participant experts and non-party experts may give opinion evidence without complying with Rule 53.03. It set out the following test at para. 60:

Instead, I conclude 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:
• the opinion to be given is based on the witness’s observation of or participation in the events at issue; and
• 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.

Any opinion evidence that extends beyond these limits must comply with Rule 53.03.

The Court of Appeal expressly disagreed with the Divisional Court’s finding that the type of evidence – fact vs opinion – was determinative as to whether Rule 53.03 applies. It pointed to pre-2010 jurisprudence which supported the conclusion that Rule 53.03 does not apply to opinion evidence given by participant experts. The 2010 amendments were intended to codify and reinforce these common law principles. The Court also noted that Westerhof was an outlier in the sense that there was no other decision requiring treating physicians to comply with Rule 53.03.

The C.A.’s conclusions are in line with the language of the Rules. Rule 4.1.01, for example, refers to an expert “engaged by or on behalf of a party”. Interpreting the rules to not apply to participant experts or non-party experts is also in line with the Osborne Report which focussed on problems caused by litigation experts.

The C.A.’s decision marks a retreat from the conclusion of the Divisional Court that Rule 53.03 applied very broadly. In many circumstances now failure to comply with expert opinion requirements won’t be fatal to the admissibility of opinion evidence as long as it meets the test above.

Counsel for the Appellant Jeremy Westerhof: Jane Poproski, Lou Ferro (Ferro & Company, Hamilton) and Robert Zigler (Clark, Farb, Fiiksel LLP, Toronto)

Counsel for the Respondent the Estate of William Gee: Kieran  Dickson and Kenneth Raddatz (Evans, Philip LLP, Hamilton)

Counsel for the Appellant James Baker:  Donald Rollo and David Visschedyk (AMR LLP, Toronto)

Counsel for the Respondent Daniel McCallum:  Paul Pape and Joanna Nairn (Pape Barristers Professional Corp., Toronto)

Counsel for the Intervener the Ontario Trial Lawyers Association: Richard Halpern (Thomson, Rogers, Toronto) and Brian Cameron (Oatley, Vigmond Personal Injury Lawyers LLP, Barrie)

Counsel  for the Intervener The Holland Access to Justice in Medical Malpractice Group: William Black (McCarthy Tétrault LLP, Toronto) Jerome Morse (Morse Shannon LLP, Toronto) and John Morris (Borden Ladner Gervais LLP, Toronto)

Counsel for the Intervener the Canadian Defence Lawyers Association: John  Olah (Beard Winter LLP, Toronto) and Stephen Libin (Dutton Brock LLP, Toronto)

Counsel for the Intervener The Advocates’ Society: Linda Rothstein and Jean-Claude Killey (Paliare Roland Rosenberg Rothstein LLP, Toronto)

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