Supreme Court Denies Leave in Westerhof, Appeal Ruling on Experts Stands

January 7th, 2016 by

The Supreme Court of Canada recently denied an application for leave to appeal the Ontario Court of Appeal’s decision in Westerhof v Gee Estate and, in doing so, left the Court of Appeal’s decision as the final law on an important aspect of the interpretation of Rule 53.03 which governs the content and use of expert reports in civil proceedings.

Westerhof arose as a typical motor vehicle accident claim. At trial, the defendants conceded liability for causing the accident, but disputed that Mr. Westerhof’s injuries were actually caused by the accident.

At trial, the judge refused to admit the opinions of various medical practitioners who had seen and personally treated Mr. Westerhof because they did not comply with the dictates of Rule 53.03. Specifically, they were prevented from giving evidence of the medical history they had taken from Mr. Westerhof. As well, the trial judge ruled that the expert which had complied with Rule 53.03 could not refer to the opinions of experts who had not complied with the Rule. Because of these rulings, Mr. Westerhof was unsuccessful in claiming against the defendants, and his action was dismissed. He appealed.

On appeal, the Divisional Court upheld the trial judge’s ruling. The Court rejected Mr. Westerhof’s argument that Rule 53.03 only applied to medical experts who had been retained for the purpose of the litigation, and not to other medical experts who, not having been retained specifically for the litigation, had nonetheless observed, treated, and provided an opinion on the plaintiff. The Court essentially found that the ambit of Rule 53.03 was defined by the type of evidence to be proffered (a medical opinion) and not the context in which the medical opinion arose. The Court held that doctors not compliant with Rule 53.03 could testify to facts that they observed (like any other lay witness), but could not provide an opinion as to “the cause of an injury, its pathology, or prognosis.” To do the latter, Rule 53.03 must have been complied with.

Mr. Westerhof again appealed. At the Court of Appeal, the Court rejected the Divisional Court’s reasoning. The Court found that it was at odds with established common-law principles regarding medical opinion evidence and that Rule 53.03 did not change the common-law, but only codified it. The Court of Appeal held that an expert, be it doctor or otherwise, who was not engaged for the purposes of litigation (what the Court referred to as ‘participant experts’) can give opinion evidence without complying with Rule 53.03 where two conditions are met:

  1. The opinion to be given is based on the witness’ observations 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 or training and experience while observing or participating in such events.

With the Supreme Court’s decision to deny the defendants leave to appeal, the Court of Appeal’s ruling stands as the final word on the interpretation of Rule 53.03. While many are not pleased with the Court of Appeal’s ruling, it provides a level of flexibility in litigation that the Divisional Court’s dictum did not.

For more information regarding the use of experts in civil litigation, or if you have a potential claim, contact the experienced team at Devry Smith Frank LLP.

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