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Segal's Motor Vehicle and Impaired Driving Newsletter | Disclosure requirements

Ontario Court of Appeal finds disclosure requirements under R. 53.03 apply only to expert witnesses retained by parties, and not to non-party or participant expert authorities



Segal's Motor Vehicle and Impaired Driving Newsletter



By: Murray D. Segal



Westerhof v. Gee Estate, 2015 ONCA 206, 2015 CarswellOnt 3977 (Ont. C.A.)

Expert evidence; Rules of Civil Procedure; Requirements for introducing the evidence of expert witnesses; Rule 53.03 interpretation; 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" or more broadly to all expert witnesses who give opinion evidence; Broader category may give evidence without complying with Rule 53.03; Rule 53.03 Rules of Civil Procedure, R.R.O. 1990, Reg. 194; Rule 4.1.01, Form 53.

Westerhof v. Gee Estate, 2015 ONCA 206, 2015 CarswellOnt 3977 (Ont. C.A.), reversing 2013 ONSC 2093, 310 O.A.C. 335, 24 C.C.L.I. (5th) 226, 2013 CarswellOnt 9059 (Ont. Div. Ct.): Rule 53.03 sets out the requirements for introducing evidence of expert witnesses at trial. There were amendments in 2010 to the Civil Rules aimed at ensuring the neutrality and expertise of expert witnesses, as well as adequate disclosure of the basis for an expert's opinion. The 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 per Rule 4.1.01. The amendments also specified certain information relating to an expert's opinion and expertise that must be included in an expert's report and required the expert to sign an acknowledgment 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). The question was whether Rule 53.03 applies only to experts described in Rule 4.1.01(1) and Form 53 — experts "engaged by or on behalf of a party to provide [opinion] evidence in relation to a proceeding" (litigation experts) — or whether it applies more broadly to all witnesses with special expertise who gave opinion evidence. The broader group of witnesses would include, for example, treating physicians and experts retained by a non-party such as statutory accident benefits (SABS) insurers. The Court of Appeal did not agree with Divisional Court's conclusion that this type of evidence, whether fact or opinion, is the key factor in determining to whom Rule 53.03 applies. Participant experts and non-party experts may give opinion evidence without complying with Rule 53.03.

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