Do non-party experts need to prepare expert reports in order to give oral expert opinion evidence at trial? Ontario Court of Appeal says no.
The Ontario Court of Appeal case of Westerhof v. Gee, 2015 ONCA 206 has answered the question of whether “non-party” experts are required to prepare expert reports in order to give oral expert opinion evidence at trial?
In Ontario, all experts must comply with the requirements of Rule 53.03. This is so regardless of whether the expert was hired by one of the parties or reached their opinions independent of any litigation.
Rule 4.1 of the Ontario Rules of Civil Procedure states as follows:
RULE 4.1 DUTY OF EXPERT
DUTY OF EXPERT
4.1.01 (1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,
(a) to provide opinion evidence that is fair, objective and non-partisan;
(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and
© to provide such additional assistance as the court may reasonably require to determine a matter in issue. O. Reg. 438/08, s. 8.
(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.
Rule 53.03 states, in part, as follows:
53.03 (1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference scheduled under subrule 50.02 (1) or (2), serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). O. Reg. 438/08, s. 48; O. Reg. 170/14, s. 17.
(2) A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). O. Reg. 438/08, s. 48.
(2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information:
1. The expert’s name, address and area of expertise.
2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.
3. The instructions provided to the expert in relation to the proceeding.
4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.
5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.
6. The expert’s reasons for his or her opinion, including,
I. a description of the factual assumptions on which the opinion is based,
ii. a description of any research conducted by the expert that led him or her to form the opinion, and
iii. a list of every document, if any, relied on by the expert in forming the opinion.
7. An acknowledgment of expert’s duty (Form 53) signed by the expert.
The Court in reaching its decision considered many factors including the time and money spent in personal injury litigation actions and the principle that parties should be allowed to have witnesses give evidence at trial without undue expense and complications in the process, providing the evidence is necessary and reliable.
As a result of this case, injury victims may be able to have treating physicians and other health professionals give “expert” evidence based on the opinions they formed in the course of their treatment without having to comply with Rule 53.03, including preparing a formal report. The principles in this case may also be applied to non medical persons such as police officers.
Injury victims often retain the services of experts who give expert evidence at trial and must comply with the requirements of Rule 53.03 before they may be allowed to give expert evidence at trial.
There are also other types of experts called “participant experts”. These are witnesses whose evidence is derived from their own personal observations or involvement in the underlying facts of the matter. Examples are treating doctors. Participant experts do not have to comply with Rule 53.03 to give expert evidence at trial. Other witnesses are what is called “non-party experts” and these are witnesses not hired by one of the parties but nevertheless have relevant evidence to give at trial. Non party-experts do not have to comply with Rule 53.03 to give expert evidence at trial.
The Ontario Court of Appeal in Westerhof held that both participant experts and non-party experts 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 observations 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.
If the participant expert or non-party expert wants to give opinion evidence going beyond these limits, the expert must comply with Rule 53.03 for those opinions that extend further.
The Court specifically dealt with evidence that may be given at trial by “treating physicians”. The Court held that treating physicians may be permitted to testify about opinions that arise directly from their own treatment of the injured party and they may do that based on clinical notes and records, without the necessity of having to deliver “expert” reports. This makes sense because treating physicians for instance have direct knowledge of the facts and have personal observations and can base opinions based on their treatment and observations of the injured person, their patient. The Court held that treating physicians are able to give evidence at trial of the histories (medical history) they received, of their diagnoses reached, and their prognoses reached in relation to their patient.
For injury victims seeking compensation in an Ontario court action, they may now call their treating health professionals (family doctor for instance) to give expert evidence based on conclusions they reached in the course of providing treatment in the usual course of their relationship with the patient. However, beyond this, injury victims (plaintiffs) can feel comfortable that the facts, opinions and conclusions of their family doctors can be communicated to a judge or judge and jury at trial, without the necessity of incurring additional expense of seeking expert reports.
Dealing with experts in litigation is an issue that arises in almost every personal injury case. It is always best to retain an experienced injury lawyer to help you navigate through the endless pitfalls of conducting a personal injury action.
Our lawyers provide free consultations and charge a fee only if successful in reaching a settlement or successful at trial. Call us to obtain more information.
Quinn Thiele Mineault Grodzki LLP
Personal Injury Lawyers – Mediators
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Ottawa, ON K2P 1V8
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