The Supreme Court recently denied leave to Appeal the Ontario
Court of Appeal's decision in Westerhof v. Gee,
leaving the Court of Appeal's decision as the final word on the
important issue of the application of Rule 53.03.
The case unfolded on the distinction made between experts
retained for the purposes of litigation ("litigation
experts") and those experts who are not. Examples of those
experts not retained for the purpose of litigation include treating
physicians ("participant experts") and experts in the
Accident Benefit context ("non-party experts").
Specifically, the issue in the case was whether Rule 53.03 requires
that "participant experts" or "non-party
experts" must render expert reports, before such experts are
allowed to testify.
The Westehof case was a typical MVA personal injury action. It
was tried after the important 2010 amendments to the
Rules, which were about ensuring the neutrality of expert
witnesses and the adequate disclosure of the basis for experts'
opinions. The amendments were enacted in part to address the common
complaint outlined in Honourable Coulter Osborne's report that
"too many experts are no more than hired guns who tailor the
reports and evidence to suit the client's needs."
In Westerhof, the trial judge refused to allow several
participant expert and non-party expert witnesses to provide
opinion evidence concerning history, diagnosis and prognosis of Mr.
Westerhof's injuries. Specifically, Mr. Westerhof's
treating chiropractor, psychiatrist and physiotherapist, among
others, were prevented from giving evidence of the history they had
taken from Mr. Westerhof.
Mr. Westerhof appealed to the Divisional Court. In dismissing
Mr. Westerhof's appeal, the Divisional Court held 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 the evidence at issue is opinion evidence, then
compliance with rule 53.03 is required; if the evidence at issue is
factual evidence, then compliance with rule 53.03 is not
The Court of Appeal did not agree with the Divisional
Court's conclusion that the type of evidence – whether
fact or opinion – was the key factor in determining to whom
rule 53.03 applies. The Court of Appeal held that an expert who was
not engaged for purposes of litigation can give opinion evidence
without compliantce with Rule 53.03, when two conditions are
the opinion to be given is based on the witness's
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
experience while observing or participating in such events.
Despite its ruling, it is important to note that the Court of
Appeal still emphasized the role of the Court as gatekeeper in
relation to opinion evidence, noting that, for example, "The
court could also require that the participant expert or non-party
expert comply with rule 53.03 if the participant or non-party
expert's opinion went beyond the scope of an opinion formed in
the course of treatment or observation for purposes other than the
In conclusion, the Court of Appeal's final word on the issue
injected some much needed flexibility into the admissibility of
evidence that can be crucial in personal injury actions.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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