Ontario Superior Court clarifies rule on calling over three experts in personal injury trial

The Ontario Superior Court of Justice has clarified the rule on calling more than three expert witnesses in a personal injury trial.

In Majerczyk v Manalo, 2023 ONSC 3064, Lisa Majerczyk was driving from her office in Brooklyn to her home in Courtice, Ontario. As she travelled east on Taunton Road, Rodolfo Manalo's vehicle went out of control and struck Majerczyk's car head-on. Majercyzk sued Manalo, claiming she suffered permanent serious impairment and has incurred damages."

Manalo admitted liability but denied that the accident caused the injuries and damages. He argued that Majerczyk was contributorily negligent for the damages because she failed to mitigate.

Manalo brought a motion to call more than three experts at the trial. He wishes to call a physiatrist in addition to calling an orthopaedic surgeon. Manalo sought to call a total of five expert witnesses –an orthopaedic surgeon, a chartered professional accountant, an occupational therapist and certified life planner, a psychiatrist, and a physiatrist.

Manalo claimed that the experts would provide opinion evidence on unique and distinct issues as they all have different specialty areas. Manalo asserted that the proposed expert evidence is necessary for the proper adjudication of the trial, an accurate assessment of the damages, and to provide the defendant with a full opportunity to make their case.

Majerczyk objected to the defendant calling the physiatrist and the orthopaedic surgeon on the grounds of duplication and disadvantage. Majercyzk argued that there was duplication between the expert reports and proposed expert evidence of the physiatrist and the orthopaedic surgeon. Majerczyk also argued that permitting the defendant to call more than three experts would disadvantage her.

Under the Evidence Act, if a party wants to examine expert witnesses, not more than three might be called by either side without leave. The court the court must consider the following when calling more than three witnesses:

• any objection by the opposite party;
• the number of expert subjects in the issue;
• the number of experts each party proposes to  call on each issue;
• the number of experts customarily called in similar cases;
• whether the leave would disadvantage the opposing party;
• the necessity of calling more than three experts;
• any duplication of the opinions; and
• whether the time and costs are disproportionate

The Ontario Superior Court noted that in cases where chronic pain is alleged, "it is not unusual to have more than one expert –each with different expertise – to comment on the issue of causation." The court pointed out that the defendant planned to call only one physiatrist to give evidence at the trial. His expertise and evidence are substantially different than that provided by the orthopaedic surgeon.

The court acknowledged that the two experts' reports are strikingly similar, but the underpinning expert reports are strikingly different. The court emphasized that the physiatrist's area of specialty is separate and distinct from that of an orthopaedic surgeon. The court explained that even if the export reports filed by the two specialists contained similar observations and conclusions, it does not automatically result in duplication that would warrant exclusion.

The court underscored the fact that there is no prohibition against duplication. What case law prohibits is "undue duplication."

Majerczyk asserted that she would be disadvantaged if the court allowed the defendants to call more than three experts. However, the court found no disadvantage to allowing the defendant to call more than three experts at trial, given that each expert represents a different specialty and would provide differing perspectives on the critical issues of the case.

Accordingly, the court granted leave to the defendants, allowing them to call more than three expert witnesses at trial.