In the recently released decision of Spirito v Trillium
Health Centre, 2013 ONSC 5238, the Ontario Superior Court
limited the testimony of treating physicians who had not complied
with Rule 53.03 of the Rules of Civil Procedure.
This issue arose in the context of medical malpractice
litigation following the death of a patient, Emilio Spirito, at
Trillium Health Center. Mr. Spirito's estate and his family
sued the treating physicians, hospital and nurses in negligence.
The claim was dismissed in its entirety.
At the commencement of trial, the plaintiffs sought leave, under
section 52 of the Evidence Act to file medical reports of two
treating physicians and to call them as expert witnesses. The
plaintiffs had not complied with the notice requirement for filing
medical reports under the Evidence Act. Nor had they complied with
the requirements of Rule 53.03.
Rule 53.03 requires parties intending to rely on expert
witnesses to deliver a signed report containing specific
information, including the expert's qualifications employment,
and educational experience; the instructions provided to the
expert; the nature of the opinion being sought and each issue to
which the opinion relates; the opinion, the reason for it and any
factual assumptions on which it is based; any research conducted by
the expert; and a list of every document relied upon in forming the
opinion. Rule 53.03 also requires experts to sign an
"Acknowledgement of Expert's Duty" document in which,
among other things, the expert acknowledges the obligation to
provide opinion evidence that is "fair, objective, and
The Court held that Rule 53.03 applies to all physicians called
to provide opinion evidence, regardless of whether they are experts
retained by a party or treating physicians. Accordingly, in this
case, the Court did not accept the two treating physicians as
expert witnesses and did not permit the filing of their respective
medical reports. The two physicians were permitted to testify as
fact witnesses and could give evidence about treatment opinions
formed at the time they were involved with Mr. Spirito.
This case highlights the importance of full compliance with Rule
53.03 and the notice provisions of the Evidence Act.
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