Did the Court of Appeal Clean up the Rule 53 Expert Mess?

This post was written by Andrea Girones:

April 26th, 2015
As a lawyer practicing in litigation for almost 20 years I have rarely been happier to see a Court of Appeal decision as I have with the recent decision in Westerhof v. Gee Estate 2015 ONCA 206. A simple 2010 rule change in our Civil Procedure book blew up into such a mess it took the Ontario Court of Appeal, and 5 years of hard fought battles, to sort it out.

In 2010, a new and supposedly harmless form, Form 53 the “Acknowledgement of Expert Duty” was introduced. Every expert who was to testify at trial had to acknowledge a duty to the Court to be independent. It was supposed to reduce the use of “hired gun” experts, and reduce trial time/costs by avoiding cases which turned solely on a “battle of the experts”. Instead however, crafty lawyers used the form to prevent experts from testifying in cases where they wouldn’t, or couldn’t, sign the form.

Common law rules of evidence and the Ontario Evidence Act make a clear distinction between fact and opinion evidence and there are longstanding rules about the admissibility of each. Opinion evidence could only come from a qualified expert. The bar to be an expert is low; there need only be a particular expertise or special knowledge that is beyond the knowledge of the finder of fact, the Judge or Jury. Typically, and for decades, a medical doctor, rehabilitation nurse, or physiotherapist, with proper professional credentials, would be able to give “expert” opinions at trial. Now they might need to also sign this form.

Typically “hired guns” had no problem signing these forms, they were paid to do so. Treating medical doctors, such as surgeons, family practitioners, and physiotherapists would sometimes sign and sometimes not. They were uncomfortable, they did not understand the forms, they wanted legal advice. It became impossible for Plaintiff lawyers like myself, to convince a family doctor to sign the form.

Then at trial there were further battles about whether only hired guns had to sign Form 53. Plaintiff lawyers would argue that a family doctor, who has treated an injured party for 20 year,s did not need to sign this form before being allowed to testify. Some Judges agreed, and others limited the family doctors to discussing the “facts” of their medical treatment. Sometimes doctors were hired in unrelated matters involving disability benefits. Were they also required so sign these forms? Again differing caselaw appeared. More court time was spent fighting over this issue.

What was intended to help the court process became a real mess for both defendants and plaintiffs particularly in the personal injury fields. Our trials tend to center around medical opinion evidence.

And long last the Court of Appeal has ruled that only “hired gun” experts need sign the form. Back to the good old rules surrounding opinion evidence that have worked for centuries.

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