Personal Injury Law: Westerhof a welcome decision that will reduce litigation costs

While litigation experts hired by a party to a lawsuit must comply with the comprehensive expert report rules set out in Rule 53.03 of the Ontario Rules of Civil Procedure, participant experts such as treating health practitioners and non-party experts such as those hired by a non-party insurer don’t need to comply with the rule in order to provide expert opinion evidence at trial, according to the Ontario Court of Appeal in its pragmatic and much-anticipated decision in Westerhof v. Gee last week.

In Westerhof, the Ontario Court of Appeal determined the expert report rules don’t apply to those involved for reasons unrelated to the litigation as they weren’t “engaged by or on behalf of a party.” As a result, plaintiff’s personal injury lawyers may now return to the customary, economical, and sensible practice of relying on expert opinions from treating health practitioners actively involved in the care and treatment of an accident victim without obligating the treatment provider to write a thorough rule 53.03-compliant expert report.

The Westerhof appeal dealt with the use of expert opinions not formally set out in a Rule 53.03-compliant expert report. The trial judge had restricted expert opinion evidence from various treatment providers called by the plaintiff, including information relating to the patient’s history, diagnosis, and prognosis, on the basis of technical non-compliance with Rule 53.03. After a jury outcome that was unsatisfactory to the plaintiff, Jeremy Westerhof, he appealed to the Ontario Divisional Court. The Divisional Court dismissed the appeal and upheld the trial judge’s decisions relating to the inadmissibility of the opinions from various treatment providers. It distinguished evidence from a fact witness from that given by an expert witness and concluded that those called to provide opinions, as opposed to factual evidence relating to their observations and treatment, must comply with Rule 53.03.

On further appeal by the plaintiff with leave, the Ontario Court of Appeal disagreed with the ruling and distinctions made by the Divisional Court. Instead, the appeal court emphasized and relied on the wording of Rule 53.03 and its express reference to experts “engaged by or on behalf of a party.”

In Westerhof, Justice Janet Simmons, writing for the Ontario Court of Appeal, concluded that only litigation experts — those retained by a party to the litigation — qualify as those “engaged by or on behalf of a party” within the meaning of Rule 53.03. Simmons distinguished litigation experts from participant experts, such as doctors and other health practitioners involved in the treatment and care of a patient, and from non-party experts, such as those involved by an insurer in the course of a statutory accident-benefit or other disability claim. Simmons ruled that participant experts and non-party experts aren’t “engaged” by a party and are therefore not subject to Rule 53.03.

After reviewing the origins of Rule 53.03, Simmons wrote: “. . . 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.’”

In disagreeing with the suggestion that any witness called by a party at trial has been “engaged” by that party, Simmons stated: “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.”

It appears Simmons felt that treatment providers were different from litigation experts as they often form their opinions in advance of any litigation and generally without regard to any ongoing legal matters. For example, Simmons wrote: “Unlike an expert witness engaged by or on behalf of a party to provide opinion evidence in relation to the proceeding, participant experts and non-party experts do not testify because they are paid an expert’s fee to write the report contemplated by rule 53.03. Rather, they testify because they were involved in underlying events and, generally, have already documented their opinions in notes or summaries that do not comply with rule 53.03.”

Simmons went on to clarify that participant experts 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 experience while observing or participating in such events.”

When it came to experts retained by non-parties, Simmons similarly concluded they don’t need to comply with Rule 53.03. Simmons stated: “. . . 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.”

In support of the court’s reasoning, Simmons voiced practical and economic justifications for not requiring treating health practitioners to comply with Rule 53.03. “Requiring participant witnesses and non-party experts to comply with rule 53.03 can only add to the cost of the litigation, create the possibility of delay because of potential difficulties in obtaining rule 53.03 complaint reports, and add unnecessarily to the workload of persons not expecting to have to write rule 53.03-compliant reports (e.g. emergency room physicians, surgeons and family doctors).”

Plaintiff’s personal injury lawyers are very happy with the decision since it allows crucial treating health practitioners to provide valuable and informed opinions without the need to prepare a comprehensive formal expert report. All too often, plaintiff’s personal injury lawyers have faced resistance from treating health practitioners unwilling to spend the time preparing a detailed Rule 53.03-compliant report, forcing them to retain alternative litigation experts at a considerable and seemingly unnecessary expense.

However, to the dismay of plaintiff’s personal injury lawyers, the Westerhof decision opens the door to defence counsel calling non-party experts, such as those hired by an accident benefit or a long-term disability insurer, as expert witnesses at trial without the need for compliance with Rule 53.03.

Of course, the Ontario Court of Appeal reiterated that the trial judge still retains the gatekeeper function regarding the admissibility of all evidence. In addition, Simmons cautioned against any attempt by a participant or non-party expert to provide opinion evidence beyond the scope of an opinion formed in the course of treatment or observation for a purpose other than the litigation by advising that in such circumstances the court could require formal compliance with Rule 53.03.

In the end, the Ontario Court of Appeal allowed the appeal and ordered a new trial for Westerhof.

As a result of the Westerhof decision, plaintiff’s personal injury counsel now have confirmation that they can illicit vital expert opinion evidence at trial from key treating health practitioners without pressing such providers for a formal Rule 53.03-compliant expert report.

The Westerhof decision will help reduce the cost of litigation and will ensure that the best evidence is available to the trier of fact.

Darcy Merkur is a partner at Thomson Rogers in Toronto practising plaintiff’s personal injury litigation, including plaintiff’s motor vehicle litigation. He’s a certified specialist in civil litigation and creator of the Ontario personal injury damages calculator.

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