Experts and the Courts – Update
We just heard from the Court of Appeal on the awaited rulings in two cases on the question of experts, oneWesterhof, the other McCallum. Those cases dealt with the question of what evidence treatment providers can provide to the Court.
In the Westerhof trial, the trial judge ruled inadmissible opinion evidence concerning history, diagnosis and prognosis from various treating medical practitioners who had not been retained for the purposes of the litigation. The trial judge even ruled that a neurologist, who was deemed to be an expert witness, could not make reference to diagnosis made by a treating doctor.
In the McCallum case, the Plaintiff claimed he had soft tissue injuries that prevented him from working and in almost the direct opposite rulings, the trial judge permitted several medical practitioners who had treated Mr. McCallum to give opinion evidence concerning Mr. McCallum’s future employment prospects and future treatment needs without complying with Rule 53. The trial judge concluded that because these witnesses were treating medical practitioners, they could give opinion evidence without complying with Rule 53. In that case, the Plaintiff had called amongst others his family doctor, a treating psychologist and treating psychiatrist and physiotherapist, all of whom essentially testified with respect to the Plaintiff’s inability to return to work. Some also commented with respect to future care needs, such as ongoing use of medications.
In Westerhof, a kinesiologist and a physiotherapist who had done a Functional Abilities Assessment, and had in fact signed a Form 53, were not allowed to give evidence about their opinions that the Plaintiff, Mr. Westerhof, appeared to be in pain. In the Westerhof case, the trial judge ruled that any medical witness who treated or assessed Mr. Westerhof but did not comply with Rule 53 could not give any opinion evidence concerning diagnosis or prognosis even though they had not been retained for the purposes of the litigation. Those witnesses included a treating chiropractor, a treating psychiatrist, and a kinesiologist.
In that case, Mr. McCallum, who was 41 years of age, claimed that he had sustained soft tissue injuries that would prevent him from ever returning to work.
The Court of Appeal has now dealt with these two cases which essentially said completely opposite things.
The Court of Appeal stated Rule 4.1 set out the overriding duty of every retained expert to provide opinion evidence that is fair, objective and non-partisan, and within the expert’s area of expertise. Rule 53 simply specified the information to be included in the expert’s report.
The Court of Appeal rejected the trial judge’s decision and said,
I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with Rule 53 where the opinion is based on the witness’s observations or participation in the events 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.
The Court of Appeal concluded that they were entitled to testify concerning the history they took, the tests they performed, the results they observed, including their observations about whether Mr. Westerhof was experiencing pain without complying with Rule 53 because of their status as non-party experts.
The Court said that these witnesses should be considered “participant experts”.
The Court concluded that Rule 53 also does not apply to a participant expert where the participant expert has formed a relevant opinion based on personal observations or examinations. Essentially, this means that individuals who perform Independent Medical Evaluations, can give evidence without complying with Rule 53. The Court made the observation that witnesses, albeit ones with expertise, testifying to opinions formed during their involvement in the matter do not come within the description of a Rule 53 expert. They are not engaged by a party to form their opinions, and they do not form their opinions for the purpose of the litigation, and Rule 53 only applies to experts engaged by a party to form an opinion for the purposes of the litigation.
The Court of Appeal ruled that a retained expert should have been permitted to testify on other reports of other experts to explain how he or she reached his or her conclusion. It was up to the trier of fact to determine whether the basis of the expert’s conclusions had been proved and what weight would be given to them, but not to disallow it in its entirety.
The Court of Appeal agreed with the trial judge’s decision in McCallum. The Court of Appeal indicated that with respect to the opinions relating to the potential for improvement in the future, the practitioners could give that opinion evidence as it fell within their respective areas of expertise, and the opinions were formed as part of their treatment at the time.
As concerns the ability to return to work, the Court of Appeal said that that was more difficult, but found in the circumstances of the particular case the trial judge did not error in allowing doctors and treatment providers to give an opinion as it appeared to have been formed at the time of the practitioner’s treatment, and that they were not complex vocational opinions requiring highly specialized expertise.
The issue of experts has again been somewhat clarified, although it remains open to the judge at trial to be the gatekeeper as to when a treatment provider can give opinion evidence and to what extent they will be able to give that evidence.
It certainly appears there are generally two fundamental changes which have occurred. (1) Treatment providers can give opinion evidence, (with some exceptions and limitations), without having to fill out Form 53’s and being litigation experts. (2) Reports that have been prepared for non-litigation purposes, such as independent medical assessors’ reports, for a non-fault carrier will be permitted into evidence without having to comply with Rule 53.
Prepared by LERNERS LLP
This is a brief overview of the legislation, and is not intended to be relied on as legal advice.
Please contact Nigel G. Gilby for further information.