Canada: Challenges With Opinions From Treatment Providers

Last Updated: November 7 2013
Article by Darcy R. Merkur

All treatment providers must now strictly comply with expert report rules before been able to provide opinion evidence at trial.

While obtaining compliant expert reports from treating health practitioners seems like an easy task, it is not always so, especially when dealing with publically funded providers unaccustomed to writing medical-legal reports and uncomfortable charging fees for doing so.

Until recently, there has been conflicting caselaw on whether the onerous expert report rules applied beyond medical-legal experts hired by a party to the litigation. The Ontario Superior Court in Beasley v. Barrand [2010] CarswellOnt 2172 (S.C.J.), had taken a strict compliance approach to the need for formal expert reports, while a more flexible approach to opinions by non-retained experts was taken by the Ontario Superior Court in McNeil v. Filthaut, 2011 ONSC 2165 (CanLII).

But on June 20th, the Ontario Division Court in Westerhof v. Gee (Estate), 2013 ONSC 2093, concluded that the expert report rules apply to all opinion evidence regardless of the person's role or involvement in the case.

In Westerhof v. Gee (Estate), 2013 ONSC 2093, following a modest jury verdict, the trial judge dismissed the plaintiff's motor vehicle injury claim on the basis that the plaintiff's injuries did not meet the requisite threshold of being both permanent and serious. The plaintiff appealed primarily arguing that the trial judge erred in restricting the evidence of various treatment providers.

In Westerhof, the trial judge precluded opinion evidence from the treating family doctor, the treating chiropractor and a treating driving counsellor on the basis that they did not provide a report in accordance with Rule 53.03 of the Ontario Rules of Civil Procedure. The appellant argued that the treating experts' evidence should be treating differently than the evidence of experts retained for the purposes of the litigation

On appeal, the Divisional Court agreed with the trial judge's approach on all issues.

The Court starts off by reviewing the two key expert Rules, Rule 53.03 and Rule 4.1.01. The Court comments that Rule 4.1.01 highlights the duty of an expert "engaged by or on behalf of a party" to provide objective opinion evidence within their area of expertise while Rule 53.03 requires a party calling an expert witness at trial to serve a report well before trial that addresses fundamental issues associated with the opinion sought and provided, and imposes an obligation on the expert to sign an expert's duty form confirming the expert's over-arching duty to the Court as opposed to the party that retained them.

In Westerhof, Justice Thomas Lederer writing for the Ontario Divisional Court, makes it clear that all those providing opinion evidence are bound by the Rules regardless of how they became involved. He states (at paragraph 21):

"The important distinction is not in the role or involvement of the witness, but in the type of evidence sought to be admitted. If it is opinion evidence, compliance with rule 53.03 is required; if it is factual evidence, it is not."

Justice Lederer goes on to explain that opinion evidence will only be admitted where there has been compliance with Rule 53. He states (at paragraph 22):

"....where the report relied on to advance the opinion does not comply with rule 53.03, it is correct for the trial judge to refuse to admit the evidence."

The Division Court in Westerhof reviews the varying approaches to expert evidence in Beasley and McNeil, and expresses its preference for the Beasley approach of stricter compliance.

In addressing the issue of whether treatment providers should be treated differently than experts hired in the course of litigation, Justice Lederer comments that treatment providers should not be treated differently. He states (at paragraph 27):

"In determining whether and how rule 53.03 is to be applied, there is no basis for distinguishing between witnesses who treated the plaintiff and those who were retained solely to provide an opinion at trial. Rule 53.03 has to be applied taking into account the nature of the evidence to be called. Is it factual or opinion evidence?"

It should be noted that the Westerhof decision in no way interferes with the right of a treatment provider to discuss their factual observations of the plaintiff and their description of the treatment provided. If a treatment provider is called to provide this evidence they do not need to be qualified nor treated as an expert.

By crystalizing the rule requiring compliant expert reports in all circumstances, plaintiff's personal injury lawyers are now faced with additional pressure to secure compliant reports from the key treatment providers. But, regrettably, many important treatment providers, typically publically funded physicians like family doctors, orthopedic specialists, psychiatrists and physiatrists, are resistant and unwilling to write comprehensive and compliant expert reports for various personal reasons. Moreover, their opinions are typically widely known as they are expressed throughout their treatment reports, such that their opinion evidence, if allowed, would come as no surprise.

While the new expert report rules were intended to reduce reliance on hired guns, the Westerhof decision will have the unfortunate effect of forcing plaintiff's counsel to become even more reliant on medical-legal experts out of fear that they will not be able to later secure compliant reports from the key treatment providers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions