Westerhof ruling ‘should be welcomed’ by plaintiffs, defence

The Ontario Court of Appeal’s (OCA) reversal of a Divisional Court ruling requiring all experts to comply with Rule 53.03 – whether they reached their opinions independently of litigation or were hired for the litigation itself – is “game changing” for the personal injury bar, says Toronto critical injury lawyer John McLeish.

“The Court of Appeal got it right,” says McLeish, partner with McLeish Orlando LLP. “It’s a sensible decision that should be welcomed by the plaintiffs’ bar and the defence bar as well.”

In Westerhof v. Gee Estate, 2015 ONCA 206 (CanLII), 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 a decision from the Divisional Court.

Ensuring neutrality

The case was 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 appeal arose from a claim for damages for injuries suffered in a car accident, says the decision. At trial, the judge refused to admit the testimony of certain experts, finding that they had not complied with Rule 53.03.

In the appeal, the question of whether the Rule 53.03 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, was raised, 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.

‘Lot of time, effort’

“The Court of Appeal put a lot of time and effort into this decision,” says McLeish, who noted several parties, including the Ontario Trial Lawyers Association, intervened in the case. “I think the personal injury bar and insurance defence bar are very pleased with the decision.”

“For a lawyer representing an injured individual, it makes it a lot easier for the lawyer to call the treating doctors as expert witnesses. A trial judge would much prefer to hear from a treating doctor than a hired gun. For this reason, trial judges who hear personal injury trials should also welcome the decision,” says McLeish.

The OCA ruling allows a trial judge to “hear expert evidence from witnesses that they would not otherwise have been able to hear from – for example, a police officer who attends a collision scene and prepares an accident reconstruction report, or a fire marshal who attends a fire scene and prepares a fire investigation report,” says McLeish.