Appeal Decision In Westerhoff Removes Unnecessary Barriers

An Ontario Court of Appeal (OCA) decision allowing participant experts and non-party experts to give opinion evidence without complying with Rule 53.03 of the Rules of Civil Procedure removes administrative barriers that – while born out of good intention – created unnecessary setbacks, says York Region lawyer Darcy Romaine. In Westerhoff v. Gee Estate, 2015 ONCA 206, the appeal court considered to whom Rule 53.03, which sets out the requirements for introducing the evidence of expert witnesses at trial, applies. The appeal dealt with decisions from both the Superior Court and Divisional Court. “Both cases were tried following the 2010 amendments to the Rules, which were aimed at ensuring the neutrality and expertise of expert witnesses, as well as adequate disclosure of the basis for an expert’s opinion,” Justice Janet Simmons writes on behalf of the court. The appeals stemmed from claims for damages for injuries suffered in car accidents, says the decision. The cases were tried before a judge and jury, and in each case, “the defendant admitted liability for causing the accident, and the issues at trial related to whether the accidents caused the plaintiffs’ injuries and the quantum of damages.” At trial, the judge refused to admit the testimony of certain experts, finding they hadn’t complied with Rule 53.03. The appeal raised the question of whether the rule applies only to experts “engaged by or on behalf of a party to provide (opinion) evidence in relation to a proceeding,” or whether it applies more broadly to all witnesses with special expertise who give opinion evidence, writes Simmons.

This broader group of witnesses would include, for example, treating physicians, says the ruling. “In my opinion, participant experts and non-party experts may give opinion evidence without complying with Rule 53.03. Accordingly, I conclude that the trial judge in Westerhof erred in excluding the evidence of several witnesses,” writes Simmons, who ordered a new trial in the matter. Romaine, a lawyer with Boland Romaine LLP, tells AdvocateDaily.com the OCA decision is a relief. “It created a technical argument that operated to exclude relevant evidence that the judge or jury needs to make just determinations,” he says. Romaine describes the OCA’s ruling in Westerhof as “the pendulum swinging back, closer to centre.” And while he found the Divisional Court’s decision administratively troubling, he says it was born out of good intention. “The impetus for the Rule, and the Divisional Court’s insistence on its broad application, was out of a concern for ensuring that the opinions proffered in court were unbiased,” he says. However, Romaine says, the rule needlessly “applied to those treating/practitioner experts for whom the circumstances in which they formed their opinion was itself reliable.” For example, Romaine says, a radiologist who diagnoses a broken leg in the course of his employment has a sufficiently trustworthy opinion to proffer before the court. It may yet be a mistaken diagnosis, but the court ought not exclude it entirely because the radiologist did not sign a form. The circumstances in which the opinion is offered makes the evidence sufficiently reliable to be admitted and challenged, he says, noting it is analogous to the business record exception to the hearsay rule.

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