In a post on this blog in January, the Ontario Court of
Appeal's ruling in Moore v. Getahun was
discussed. That case saw the Ontario Court of Appeal overturn a
lower court's ruling in respect of the practice of lawyers
reviewing draft reports of expert witnesses.
The Court of Appeal has also just released another decision
overturning a lower court's ruling on an issue involving expert
witnesses. This time, the key question at issue was the very core
of what constitutes an "expert" witness: specifically, to
whom do the specific rules in the Ontario Rules of Civil
Procedure concerning expert witnesses apply?
The case is indexed as Westerhof v. Gee
Estate though it is actually a decision in two cases
released concurrently on the same issue. The facts are simple: Mr.
Westerhof was a passenger in a car that was rear-ended by a car
that was doing double the speed limit and he suffered injuries. He
was, naturally, subsequently treated by a number of people from his
family doctor to psychiatrist to a chiropractor and others. Many of
these witnesses were not considered to be "expert
witnesses" by Westerhof's lawyer for the purposes of
trial, and their evidence did not comply with Rule 53.03 (which
sets out specific requirements for what information must be
contained in an expert report) because he did not believe that it
needed to do so. The trial judge excluded much of this evidence as
being expert evidence that was non-compliant with the Rules and
dismissed the action.
Westerhof appealed to the Divisional Court in 2013, and the
appeal was dismissed. They concluded that 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."
This decision was appealed to the Ontario Court of Appeal. This
time, however, the appeal was granted and a new trial ordered.
Writing for a unanimous panel of three, Madam Justice Simmons
disagreed with the Divisional Court's conclusion that the type
of evidence (fact or opinion) is the key factor in determining if
Rule 53.03 applies. Instead, she held 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'
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
expertise while observing or participating in such events.
Simmons J.A. termed these witnesses "participant
experts" (she also held that the rule does not apply to
experts retained by a non-party where said expert has formed an
opinion based on personal observation or examination, referring to
the example of an expert retained by a statutory accident benefits
This decision will have significant impact in a number of cases,
particularly those involving personal injury.
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It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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