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Evidence - Expert Opinion - Expert Report (Participant v Litigation Experts)
MORE CASES
Part 2
. Rules of Civil Procedure - R53.03 [at 15 March 2020]EXPERT WITNESSES
Experts’ Reports
53.03 (1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference scheduled under subrule 50.02 (1) or (2), serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).
(2) A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).
(2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information:
1. The expert’s name, address and area of expertise.
2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.
3. The instructions provided to the expert in relation to the proceeding.
4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.
5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.
6. The expert’s reasons for his or her opinion, including,
i. a description of the factual assumptions on which the opinion is based,
ii. a description of any research conducted by the expert that led him or her to form the opinion, and
iii. a list of every document, if any, relied on by the expert in forming the opinion.
7. An acknowledgement of expert’s duty (Form 53) signed by the expert.
Schedule for Service of Reports
(2.2) Within 60 days after an action is set down for trial, the parties shall agree to a schedule setting out dates for the service of experts’ reports in order to meet the requirements of subrules (1), (2) and (3), unless the court orders otherwise.
Sanction for Failure to Address Issue in Report or Supplementary Report
(3) An expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set out in,
(a) a report served under this rule;
(b) a supplementary report served on every other party to the action not less than 45 days before the commencement of the trial; or
(c) a responding supplementary report served on every other party to the action not less than 15 days before the commencement of the trial.
Extension or Abridgment of Time
(4) The time provided for service of a report or supplementary report under this rule may be extended or abridged,
(a) by the judge or case management master at the pre-trial conference or at any conference under Rule 77; or
(b) by the court, on motion. . Hacopian-Armen Estate v. Mahmoud
In Hacopian-Armen Estate v. Mahmoud (Ont CA, 2021) the Court of Appeal commented on the requirements of an expert report:[79] The expert’s report is required to contain certain information set out in r. 53.03(2.1), including the expert’s opinion concerning each issue to which the report relates and the expert’s reasons for their opinion. It must include the factual assumptions on which the opinion is based, any research conducted by the expert and any documents relied on by the expert in forming the opinion. It is well-settled that the report must not simply set out the expert’s conclusions, but must also set out reasons for their opinion: Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham, 2000 CanLII 16946, at para. 38, leave to appeal refused [2001] S.C.C.A. No. 66; Hoang v. Vicentini, 2012 ONSC 1358, aff’d 2016 ONCA 723, at para. 10. . Girao v. Cunningham
The case of Girao v. Cunningham (Ont CA, 2020) is a remarkable ruling. That it had to be written this way is an embarrassment to the legal profession. It should be read by any litigation lawyer, especially those practicing MVA litigation, as a salutory lesson in dealing with self-representing parties. On it's face it was an appeal of an MVA tort jury award, but the Court of Appeal took the oppourtunity to review numerous (sadly, necessary) basics of civil litigation. Dealing at trial with a self-represented plaintiff who relied on a Spanish interpreter throughout, the Court of Appeal used defence behaviour as object lessons in why these legal principles are important and in the end, took the unusual step of ordering a new trial from scratch [paras 7, 173-174].
I'll go through the legal principles one by one as per topic, here the principles governing the admission of expert opinion evidence:(a) The Governing Principles on Expert Evidence
[39] The threshold requirement for the admission of expert evidence has four elements: the evidence must be relevant; it must be necessary in assisting the trier of fact; no other evidentiary rule should apply to exclude it; and the expert must be properly qualified, assuming there is no novel science issue. Then the trial judge must execute the gatekeeper function. See White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 19. See also R. v. Abbey, 2017 ONCA 640, 140 O.R (3d) 40, per Laskin J.A., at paras. 47-48. These four threshold elements implicitly give rise to another element: Can a person who has expertise, but who is not qualified as an expert witness under r. 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, still provide opinion evidence?
[40] The short answer is that such a person can give opinion evidence as this court affirmed in Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721, leave to appeal refused, [2015] S.C.C.A. No. 198. It was a case about the quantum of damages for injuries suffered in a car accident. Simmons J.A. identified two types of witnesses with special expertise who can provide opinion evidence but who are not expert witnesses as described in r. 4.1.01 and Form 53: The first are “participant experts,” who form opinions based on their participation in the underlying events, such as treating physicians. The second are “non-party experts,” who are retained by a non-party to the litigation and who form opinions based on personal observations or examinations that relate to the subject matter of the case, but for another purpose. One example would be a medical examination of a claimant for statutory accident benefit insurance purposes: see Westerhof, at para. 6. (Westerhof implicitly overrules the trial decision to the contrary reached in Beasley v. Barrand, 2010 ONSC 2095, 101 O.R. (3d) 452.)
[41] Simmons J.A. held, at para. 60, that both participant experts and non-party experts may give opinion evidence without complying with rule 53.03:I conclude 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’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. . Imeson v. Maryvale (Maryvale Adolescent and Family Services)
In Imeson v. Maryvale (Maryvale Adolescent and Family Services) (Ont CA, 2018) the Court of Appeal considers the use and admissibility of evidence from an expert:[59] In considering the proper scope of Dr. Smith’s evidence as a participant expert, it is important to remember how participant experts differ from litigation experts.
[60] In the civil litigation context, a litigation expert is subject to r. 53.03. This rule requires, among other things, an expert report that sets out the expert’s opinions, as well as an acknowledgment of the expert’s duty. Typically, an expert report provides a “roadmap of the anticipated testimony and specific limits may be placed on certain areas of testimony”: Bruff-Murphy (Litigation guardian of) v. Gunawardena, 2017 ONCA 502 (CanLII), 138 O.R. (3d) 584, at para. 62, leave to appeal refused, [2017] S.C.C.A. No. 343. The expert’s report will provide the framework for discussion about the proper scope of the expert’s testimony.
[61] In contrast, under Westerhof, participant experts may give opinion evidence without complying with r. 53.03. Typically, any opinions that are sought to be introduced are found in the clinician’s clinical notes and records, or in reports prepared for the purpose of consultation and treatment.
[62] In Westerhof, this court explained the proper role of a participant witness, at para. 60, as follows:[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'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. [63] If participant experts proffer opinion evidence extending beyond these limits, they must comply with r. 53.03 “with respect to the portion of their opinions extending beyond those limits”: Westerhof, at para. 63. In acting as a gatekeeper, trial judges have the important task of ensuring that participant experts do not exceed their proper role or, if they do, that there is compliance with r. 53.03. . Westerhof v Gee Estate
In Westerhof v. Gee Estate (Ont CA, 2015) the Court of Appeal explained the application of RCP R4.1.01 (duties of expert witnesses) and R53.03 (prior delivery of expert reports and contents thereof) to the two situations where an expert (1) had no involvement with the underlying fact history (a "litigation expert"), and where they did (a "participant expert"):[1] Rule 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, sets out the requirements for introducing the evidence of expert witnesses at trial. These appeals, which were heard together, raise related issues about to whom 53.03 applies.
[2] 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.
[3] Those amendments set out the overriding duty of an expert “engaged by or on behalf of a party” to provide opinion evidence “in relation to a proceeding” that is fair, neutral and non-partisan and within the expert’s area of expertise: rule 4.1.01.
[4] The 2010 amendments also specified certain information relating to an expert’s opinion and expertise that must be included in an expert’s report and required that the expert sign an acknowledgement of his or her duty, which identifies the party by or on behalf of whom the expert was engaged: rule 53.03(2.1), Form 53.
[5] Both appeals arise from claims for damages for injuries suffered in car accidents. Both cases were tried before a judge and jury. 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.
[6] The Westerhof appeal raises the question of whether rule 53.03 applies only to experts described in rule 4.1.01 and Form 53 – experts “engaged by or on behalf of a party to provide [opinion] evidence in relation to a proceeding” (referred to in these reasons as “litigation experts”) – or whether it applies more broadly to all witnesses with special expertise who give opinion evidence. This broader group of witnesses would include, for example, treating physicians, who form opinions based on their participation in the underlying events (referred to in these reasons as “participant experts”) rather than because they were engaged by a party to the litigation to form an opinion. It would also include experts retained by a non-party to the litigation (for example, statutory accident benefits (“SABS”) insurers), who form opinions based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation (referred to in these reasons as “non-party experts”).
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[10] On appeal to the Divisional Court, Mr. Westerhof claimed that the trial judge erred in his evidentiary rulings by failing to distinguish between opinion evidence given by litigation experts and opinion evidence given by participant and non-party experts. Mr. Westerhof argued that the latter two classes of witnesses are not caught by rule 53.03.
[11] The Divisional Court disagreed. 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”: at para. 21. 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 required.
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[59] As I have said, I do not agree with the Divisional Court’s conclusion that the type of evidence – whether fact or opinion – is the key factor in determining to whom rule 53.03 applies.
[60] Instead, I conclude 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’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.
[61] Such witnesses have sometimes been referred to as “fact witnesses” because their evidence is derived from their observations of or involvement in the underlying facts. Yet, describing such witnesses as “fact witness” risks confusion because the term “fact witness” does not make clear whether the witness’s evidence must relate solely to their observations of the underlying facts or whether they may give opinion evidence admissible for its truth. I have therefore referred to such witnesses as “participant experts”.
[62] Similarly, I conclude that rule 53.03 does not apply to the opinion evidence of a non-party expert where the non-party expert has formed a relevant opinion based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation.
[63] If participant experts or non-party experts also proffer opinion evidence extending beyond the limits I have described, they must comply with rule 53.03 with respect to the portion of their opinions extending beyond those limits.
[64] As with all evidence, and especially all opinion evidence, the court retains its gatekeeper function in relation to opinion evidence from participant experts and non-party experts. In exercising that function, a court could, if the evidence did not meet the test for admissibility, exclude all or part of the opinion evidence of a participant expert or non-party expert or rule that all or part of such evidence is not admissible for the truth of its contents. 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 litigation.
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[81] Like MacLeod-Beliveau J. in McNeill, I conclude that rule 4.1.01, rule 53.03 and Form 53 are a comprehensive framework addressing a specific class of expert witnesses and expert reports. Although the words “engaged by or on behalf of a party to provide [opinion] evidence in relation to a proceeding” do not appear in rule 53.03, they appear in both rule 4.1.01 and Form 53. Rule 4.1.01 defines the expert’s duty referred to in rule 53.03(2.1)7, and rule 53.03(2.1)7 requires that Form 53 be signed. Taking account of these factors, I see no basis for concluding that rule 53.03 was intended to apply to persons other than expert witnesses “engaged by or on behalf of a party to provide [opinion] evidence in relation to a proceeding”.
[82] Witnesses, albeit ones with expertise, testifying to opinions formed during their involvement in a matter, do not come within this description. They are not engaged by a party to form their opinions, and they do not form their opinions for the purpose of the litigation. As such, they are not “engaged by or on behalf of a party to provide [opinion] evidence in relation to a proceeding.” A party does not “engage” an expert “to provide [opinion] evidence in relation to a proceeding” simply by calling the expert to testify about an opinion the expert has already formed.
[83] Similarly, the requirement in rule 53.03(2.1)3 that an expert’s report set out “the instructions provided to the expert in relation to the proceeding” makes it abundantly clear that rule 53.03 only applies to litigation experts. A party does not provide instructions to a litigation expert or a non-party expert in relation to the proceeding – that it is because these experts have already formed their opinions.
[84] Moreover, the conclusion that rule 53.03 applies only to experts engaged by a party to form an opinion for the purpose of the litigation reflects the prior jurisprudence and practice. As I have said, in my view, Marchand makes it clear that prior to 2010, rule 53.03 did not apply to participant experts. I see nothing in rule 53.03 reflecting an intention on the part of the Civil Rules Committee to change the status quo. Had the Civil Rules Committee intended to make a change to the jurisprudential status quo, I am confident it would have made that intention clear. . Moore v Getahun
In Moore v Getahun (Ont CA, 2015) the Court of Appeal made the following salutory comments on the nature of expert evidence, in the context of whether draft expert reports and ancillary materials had to be disclosed to opposing counsel:[33] Expert evidence is a significant and controversial feature of modern civil litigation. It constitutes an exception to the rule that witnesses may only testify as to facts, not opinions, and that it is the exclusive prerogative of the trier of fact to draw inferences from proven facts. The expert evidence exception operates where specialized knowledge is required to determine the implications of the bare facts and where the trier of fact is not competent to draw the necessary inferences unaided: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at p. 23; R. v. Abbey, 2009 ONCA 624 (CanLII), 246 C.C.C. (3d) 301, at para. 94.
[34] Expert evidence has become more significant with the explosion of scientific knowledge and technical innovation. Many cases have been described as a “battle of experts”. Medical negligence cases are a prime example. The trier of fact requires the assistance of expert witnesses to decide issues pertaining to the standard of care, causation and prognosis.
[35] The use of expert evidence poses difficult issues that have been the focus of consideration in civil justice reform. How do we control the added costs associated with the explosion of expert witnesses? How do we ensure that a party has a fair opportunity to challenge an adverse expert witness? How do we ensure that expert witnesses offer an unbiased scientific or technical opinion based upon their training and expertise, rather than act as “hired guns” who present unbalanced opinions unduly favouring the party that retains them?
(ii) 2010 amendments to rule 53.03
[36] Rule 53.03 establishes the framework that parties must follow when they intend to call an expert witness at trial. The rule requires a party to provide a signed report from the expert witness not less than 90 days before the pre-trial conference or, in the case of a responding report, not less than 60 days before the pre-trial conference (rules 53.03(1), (2)). Rule 53.03(3) provides that an expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony is set out in writing in compliance with the other provisions of the rule.
[37] In 2010, significant changes were made to the Rules of Civil Procedure relating to expert witnesses, following the recommendations of the Honourable Coulter Osborne contained in his review of the civil justice system, Civil Justice Reform Project: Summary of Findings & Recommendations (Toronto: Ontario Ministry of the Attorney General, 2007). His report highlighted, at p. 71, the common complaint that “too many experts are no more than hired guns who tailor their reports and evidence to suit the client’s needs.” Two significant recommendations of the Osborne Report, designed to foster unbiased expert evidence, were subsequently adopted.
[SS: R4.1.01(1), R53.01(2.1) and Form 53 are quoted here]
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[51] I now turn to the law. I disagree with the trial judge’s statement that the 2010 amendments to rule 53.03 introduced a “change in the role of expert witnesses”.
[52] As I read the amendments and the Osborne Report recommendations, the changes were intended to clarify and emphasize the existing duties of expert witnesses. I agree with Lederman J.’s statement in Henderson v. Risi, 2012 ONSC 3459 (CanLII), 111 O.R. (3d) 554 (S.C.), at para. 19, that these changes represent a restatement of the basic common law principle that it is the duty of an expert witness “to provide opinion evidence that is fair, objective and non-partisan.” Those common law duties were summarized in an often cited passage from National Justice Compania Naviera S.A. v. Prudential Assurance Co. Ltd. (“The Ikarian Reefer”), [1993] 2 Lloyd's Rep. 68, at p. 81 (Eng. Q.B. Comm.), rev'd on other grounds but endorsed on this point, [1995] 1 Lloyd's Rep 455 (Eng. C.A. Civ.), at p. 496:1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation [citation omitted].
2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise [citation omitted]. An expert witness… should never assume the role of an advocate. The 2010 amendments to rule 53.03 did not create new duties but rather codified and reinforced these basic common law principles.
[53] The changes suggested by the trial judge find no support in the various reviews and studies on civil justice reform to which we have been referred. The Honourable Coulter Osborne certainly shared the trial judge’s aspiration for a regime that fosters unbiased expert evidence, yet there is no suggestion in his report that the solution could be found by altering the long-standing practice of counsel reviewing draft reports.
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[55] While some judges have expressed concern that the impartiality of expert evidence may be tainted by discussions with counsel (see the cases cited below, at para. 72), banning undocumented discussions between counsel and expert witnesses or mandating disclosure of all written communications is unsupported by and contrary to existing authority: see Maras v. Seemore Entertainment Ltd., 2014 BCSC 1109 (CanLII), [2014] B.C.W.L.D. 4470, at para. 90 (“[c]ounsel have a role in assisting experts to provide a report that satisfies the criteria of admissibility”); Surrey Credit Union v. Willson (1990), 1990 CanLII 1983 (BC SC), 45 B.C.L.R. (2d) 310 (S.C.), at para. 25 (“[t]here can be no criticism of counsel assisting an expert witness in the preparation of giving evidence”). In Medimmune Ltd. v. Novartis Pharmaceuticals UK Ltd. & Anor, [2011] EWHC 1669 (Pat.), the court pointed out, at para. 110, that in some highly technical areas such as patent law, expert witnesses “require a high level of instruction by the lawyers” which may necessitate “a high degree of consultation” involving “an iterative process through a number of drafts.”
[56] As the court in Medimmune noted, at para. 111, “this process entails a risk of loss of objectivity on the part of the expert”. However, the independence and objectivity of expert witnesses is fostered under existing law and practice in a number of ways.
[57] First, the ethical and professional standards of the legal profession forbid counsel from engaging in practices likely to interfere with the independence and objectivity of expert witnesses. I attach as an Appendix to these reasons The Advocates’ Society’s Principles Governing Communications with Testifying Experts, which provides a thorough and thoughtful statement of the professional standards pertaining to the preparation of expert witnesses. Principle 3 states:In fulfilling the advocate’s duty to present clear, comprehensible and relevant expert evidence, the advocate should not communicate with an expert witness in any manner likely to interfere with the expert’s duties of independence and objectivity. [58] To the same effect, The Holland Group’s position paper includes, at p. 4, its opinion “that it is inappropriate for counsel to persuade or attempt to persuade experts to articulate opinions that they do not genuinely hold, and that it is of paramount importance that the expert genuinely believes the opinion that he or she articulates both in the expert report and in the witness box.”
[59] In Medimmune, at para. 111, the court emphasized that it is “crucial that the lawyers involved should keep the expert’s need to remain objective at the forefront of their minds at all times.”
[60] Second, the ethical standards of other professional bodies place an obligation upon their members to be independent and impartial when giving expert evidence: see Guideline: The Professional Engineer as an Expert Witness (Toronto: Association of Professional Engineers of Ontario, September 2011); the Actuarial Standards Board’s Standards of Practice (Ottawa: Canadian Institute of Actuaries, October 2014); the Canadian Institute of Chartered Business Valuators’ Code of Ethics (Toronto: Canadian Institute of Chartered Business Valuators, 2012), Standard No. 110: Valuation Reports (Toronto: Canadian Institute of Chartered Business Valuators, 2009) and Standard No. 310: Expert Reports (Toronto: Canadian Institute of Chartered Business Valuators, 2010). Further, pursuant to the Rules of Civil Procedure, every expert witness is reminded of the duty imposed by rule 4.1.01 to be objective and impartial when signing the acknowledgment of expert’s duty mandated by rule 53.03(2.1).
[61] Third, the adversarial process, particularly through cross-examination, provides an effective tool to deal with cases where there is an air of reality to the suggestion that counsel improperly influenced an expert witness. Judges have not shied away from rejecting or limiting the weight to be given to the evidence of an expert witness where there is evidence of a lack of independence or impartiality. In Medimmune, at para. 111, the court noted that “partisan expert evidence is almost always exposed as such in cross-examination, which is likely to reduce, if not eliminate, the value of the evidence to the client’s case”; see also Alfano v. Piersanti, 2012 ONCA 297 (CanLII), 291 O.A.C. 62, at paras. 106-120.
[62] I agree with the submissions of the appellant and the interveners that it would be bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports. Just as lawyers and judges need the input of experts, so too do expert witnesses need the assistance of lawyers in framing their reports in a way that is comprehensible and responsive to the pertinent legal issues in a case.
[63] Consultation and collaboration between counsel and expert witnesses is essential to ensure that the expert witness understands the duties reflected by rule 4.1.01 and contained in the Form 53 acknowledgment of expert’s duty. Reviewing a draft report enables counsel to ensure that the report (i) complies with the Rules of Civil Procedure and the rules of evidence, (ii) addresses and is restricted to the relevant issues and (iii) is written in a manner and style that is accessible and comprehensible. Counsel need to ensure that the expert witness understands matters such as the difference between the legal burden of proof and scientific certainty, the need to clarify the facts and assumptions underlying the expert’s opinion, the need to confine the report to matters within the expert witness’s area of expertise and the need to avoid usurping the court’s function as the ultimate arbiter of the issues.
[64] Counsel play a crucial mediating role by explaining the legal issues to the expert witness and then by presenting complex expert evidence to the court. It is difficult to see how counsel could perform this role without engaging in communication with the expert as the report is being prepared.
[65] Leaving the expert witness entirely to his or her own devices, or requiring all changes to be documented in a formalized written exchange, would result in increased delay and cost in a regime already struggling to deliver justice in a timely and efficient manner. Such a rule would encourage the hiring of “shadow experts” to advise counsel. There would be an incentive to jettison rather than edit and improve badly drafted reports, causing added cost and delay. Precluding consultation would also encourage the use of those expert witnesses who make a career of testifying in court and who are often perceived to be hired guns likely to offer partisan opinions, as these expert witnesses may require less guidance and preparation. In my respectful view, the changes suggested by the trial judge would not be in the interests of justice and would frustrate the timely and cost-effective adjudication of civil disputes. . Dermann v. Baker
In Dermann v. Baker (Ont CA, 2019) the Court of Appeal referred to the distinction between a participant expert and a litigation expert when deciding whether expert reports should have been served:(1) Qualification of Expert Witnesses
[5] The appellant submits that the trial judge erred in qualifying as experts certain witnesses called by the respondents.
[6] At trial, the respondents sought to lead opinion evidence from Dr. Howard Weinberg, Dr. Peter Diakow, and Dr. Allan Kopyto. The appellant objected to all three witnesses on the basis that the requirements of r. 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, had not been complied with. That rule requires a party intending to call an expert witness to timely file the expert’s report containing certain information. Years before trial, Drs. Weinberg, Diakow, and Kopyto had each examined the appellant and prepared medical assessment reports for use by the appellant’s statutory accident benefits (“SABS”) insurance provider. Although the appellant had received these reports, she contended that they did not satisfy the r. 53.03 requirement.
[7] The trial judge rejected the appellant’s objection. He considered that r. 53.03 was designed for expert witnesses engaged by a party to prepare a report for the purposes of litigation. The trial judge held that the witnesses called by the respondents were not in that category and could provide expert opinion evidence within the confines of their reports.
[8] During Dr. Kopyto’s cross-examination, the appellant’s counsel reviewed with him the appellant’s complaints about pain in her back, shoulders, and neck, noting that she avoided certain physical activities such as bending and lifting. Counsel asked the witness whether such restrictions would affect the appellant’s ability to work as a personal support worker. In response, Dr. Kopyto expressed uncertainty. During re-examination, the following exchange occurred between Dr. Kopyto and the respondents’ counsel:Q. You were asked in cross-examination if restrictions in bending and lifting would make it difficult for her to do the job of a PSW. When you saw her back in July of 2012, did you find that she was unable to work?
A. Well, I wasn’t asked that question.
Q. But you were asked in cross-examination, so I’m asking you now. Based on your physical examination, what you reported on – recorded and reported on in your report, is there any indication there that she was disabled from working?
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A. There’s no indication that she couldn’t work, if that’s your question. [9] On appeal, the appellant submits that, because the respondents did not comply with r. 53.03, Drs. Weinberg, Diakow, and Kopyto should not have been qualified as experts. The appellant also submits that Dr. Kopyto’s evidence veered impermissibly outside the confines of his report when he gave opinion evidence about her ability to work.
[10] In our view, the trial judge correctly found that r. 53.03 did not apply to the witnesses called by the respondents. In Westerhof v. Gee Estate, 2015 ONCA 206, 124 OR (3d) 721, this court observed that the rule only applies to a specific class of expert witnesses; namely, those who are “engaged by or on behalf of a party to provide opinion evidence in relation to a proceeding”: Westerhof, at para. 81. Experts retained by a non-party to the litigation, like a SABS insurance provider, do not belong to this class and are instead considered “non-party experts”: Westerhof, at para. 6. Rule 53.03 does not apply to non-party experts as long as their opinions are limited to those formed based on observations made for a purpose other than litigation: Westerhof, at paras. 62-64.
[11] In this case, the three witnesses called by the respondents were clearly non-party experts. Subject to the trial judge’s discretion, they were entitled to give expert opinion evidence within the confines of observations they made to prepare medical assessment reports for the SABS insurance provider. As long as the witnesses remained within those confines, they could be qualified as experts without compliance with r. 53.03.
[12] In our view, Dr. Kopyto’s evidence did not impermissibly go beyond the scope of testimony for a non-party expert during direct examination. It was the appellant’s counsel who invited additional evidence by asking the witness about the appellant’s ability to work as a personal support worker. Under these circumstances, the respondents were entitled to ask further questions of the witness on re-examination in order to clarify that issue. Regardless of whether Dr. Kopyto’s evidence on re-examination went beyond the scope of his report, we are of the view that it was proper.
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