Ontario Court of Appeal rules on opinion evidence from “participant experts”

By March 26, 2015 Law News No Comments

The Ontario Court of Appeal today released its long awaited decision in Westerhof v. Gee to clarify the confusion regarding opinion evidence of treating physicians and other experts being admitted at trial without strict compliance with Rule 53.03.

The Court found 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 can give opinion evidence for the truth of its contents without complying with rule 53.03 where:

*the opinion to be given is based on the witness’s observation of or participation in the events at issue: 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 went on to state that Rule 53.03 does not apply to the opinion evidence of non-party experts where the non-party expert has formed a relevant opinion based on personal observation or examinations relating to the subject matter of the litigation.   This would presumably apply to opinion evidence given by medical experts in the course of handling the Accident Benefits claim or other ancillary medical assessments conducted in relation to a claimants impairments.
The ruling is a welcome victory for common sense which will allow a Plaintiff to admit valuable opinion evidence from some of the doctors and experts that are the most familiar with their injury and will take away some of the burden of cost of retaining additional expert witnesses to testify to facts well within the knowledge or their treating doctors.
The Court of Appeal’s full decision can be found here: