“Treating” Experts the Same as the Rest

The Ontario Divisional Court recently held in Westerhof v. Gee Estate, [2013] ONSC 2093 that the requirements of Rule 53.03 of the Rules of Civil Procedure apply to all opinion evidence to be provided by an expert witness, and are not limited to retained experts.

Rule 53.03 requires, among other things, the service of an expert report at least 90 days before a pre-trial conference.  That report must contain the following:

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,
7. a description of the factual assumptions on which the opinion is based,
8. 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; and

7. an acknowledgement of expert’s duty (Form 53) signed by the expert.

For expert witnesses who are not retained, or are unaccustomed to preparing expert reports or the litigation process in general, the requirements of rule 53.03 are onerous.  On the one hand, this decision might be viewed in a negative light, as it could result in important opinion evidence of “first to the scene” experts being inadmissible at trial (unless they have been persuaded to provide a report).  Those witnesses, such as a treating physician in a personal injury action, might have the most direct, best and first-hand observations of the subject matter at issue.  The decision might also lead to access to justice issues, as plaintiffs face increased costs seeking to obtain expert reports that they would not otherwise have needed to acquire. On the other hand, the treating physician expert will be able to give evidence which is factual, and not opinion, at trial without providing a report, and another “hired-gun” may prepare a report on such factual evidence, thereby assuring that defendants will know the case that they have to meet.It is expected that, instead of debating into what category an expert falls (retained expert vs. the initial treating physician), barristers will now go to great lengths to argue that the evidence being presented at trial is merely factual, and not an opinion.  The difference between the two is often less than clear.