ADVOCATES SOCIETY Tricks of the Trade Staying Ahead of the Curve: Latest Updates, Critical Case Law, and New Practical Tips EVIDENCE LAW UPDATE

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1 ADVOCATES SOCIETY Tricks of the Trade 2013 Staying Ahead of the Curve: Latest Updates, Critical Case Law, and New Practical Tips EVIDENCE LAW UPDATE By Richard H. Shekter B.A., LL.B., LL.M. 1 Friday, January 25, 2013 Carlu, College Park Toronto Copyright 2013 by Richard H. Shekter All rights reserved 1 The author is indebted to Sean Miller for his assistance in conducting portions of the background research and in assisting in the editing of this paper.

2 Table of Contents INTRODUCTION The Role of the Judge as Gatekeeper Are the Rules of Evidence in Civil Cases Different from Criminal Cases? Litigation Experts vs. Non-Litigation Experts ; Treating vs. Non-Treating Doctors: The Rule Dilemma... 9 (a) The Osborne Report - November 2007 and the New Rules (b) The Problems with Rule (c) The Categories of Experts (d) Treating vs. Non-treating Experts (e) Does Rule Apply to Non-Litigation Experts? The Expert as Advocate (a) The Current Trend (b) Lack of Institutional Independence vs. Advocacy/Bias: The Distinction The Order of Witnesses (a) Rule (b) The Case Law Business Records : Hearsay and Sections 35 and 52 of the Evidence Act (a) The Legislation: s. 35 Evidence Act (b) The Common Law and the Enactment of s. 35 OEA (c) Medical/Hospital Records Issues: Patient s Intake History and Opinions, Impressions, Diagnoses (d) Section 52 Evidence Act (e) Interface between Rule and Section 52 of the Ontario Evidence Act (f) Police Records, Police Officers Notes and Witness Statements (g) Subsection 35(4) Hearsay in Business Records Affects Weight but not Admissibility (h) Both the Maker and the Recorder Must Have a Duty to Act (i) Conclusion on Business Records CONCLUSION... 48

3 2 INTRODUCTION 2 There is no mistaking a criminal trial for a civil one. To the criminal lawyer, the rules of evidence and the Canadian Charter of Rights and Freedoms (the Charter ) are the life blood of a criminal trial. Further, although no self-respecting criminal lawyer will ever publicly admit it, very occasionally, criminal defence counsel will be retained by someone who has actually committed the offences that the police have so unceremoniously charged him/her with. That fact, however, in the practice of criminal law, does not, in and of itself, justify the registration of a conviction. Rather, in Canada, absent a guilty plea, no one may be found guilty of a criminal offence until the Crown has met its evidentiary obligation to prove the guilt of the accused beyond a reasonable doubt. Armed with this sword of Damocles hanging over the Crown s head, otherwise known as the presumption of innocence, the task of the criminal defence lawyer, then, is to harness the rules of evidence (and occasionally the Charter) and send them off to battle, all in an effort to exclude foundational evidence that forms the centre-pieces of the Crown s case. Like so many American television shows, the defence counsel s cry of objection reverberates continuously throughout the course of a typical criminal trial. By way of contrast, and certainly until very recently, evidentiary objections during civil trials in this province are, for the most part, relatively few and far between. In this writer s experience, evidence capable of evidentiary challenges is frequently received in our civil courts without objection from opposing counsel. Whatever the reason behind this lack of objections, be it strategic, or simply lack of awareness, the fact remains that, as a general proposition, criminal lawyers appear to have a significant greater appreciation of the rules of evidence and their application than do civil lawyers. A necessary corollary of this fact, of course, is that all of us, as civil lawyers, are missing opportunities to inflict significant damage on an opponent s case by failing to utilize these essential evidentiary tools to effect the exclusion of the opposing party s evidence in a given case. This concern with issues of admissibility of questionable evidence, particularly expert evidence, is also an overriding theme of Commissioner Stephen Goudge s Report entitled Inquiry into Pediatric Pathology In Ontario 3 (the Goudge Report ). That report presents a cautionary tale respecting the use and/or abuse of expert testimony in the courtroom. It cautions judges to become more vigilant when exercising their gatekeeping role, albeit in the context of the admission of expert testimony, while urging both counsel and experts to be more circumspect in the presentation of such evidence. 2 Portions of this material are drawn from the author s article entitled Expert Evidence: Recent Trends and Decisions, Advocates Society Civil Litigation Skills Certificate Program, May 14, The Honourable Stephen T. Goudge, Commissioner, Inquiry Into Pediatric Forensic Pathology in Ontario, Ontario Ministry of the Attorney General: 2008

4 3 Given the significance of the findings and recommendations contained in the Goudge Report, it is not surprising that its publication has marked the beginning of a paradigm shift towards increased scrutiny of the validity and efficacy of expert testimony in the courtroom. Indeed, Chapters 17 and 18 of the Goudge Report, in this writer s view, has become required reading for advocates who intend to conduct trials in Canada. Chapters 17 and 18 articulate the roles to be played, respectively, by coroners, the police, Crown counsel, defence counsel and the court. While the obvious focus of the Goudge Report was on the role of Dr. Charles Smith, a forensic pediatric pathologist, in connection with his alleged involvement in a series of wrongful convictions, Commissioner Goudge s comments will have significant resonance far beyond the criminal bar. It is also anticipated that the comments of Commissioner Goudge concerning the significance of the gatekeeping role will also result in the judges taking a more activist role in excluding questionable evidence generally; not only expert testimony. What this means for all of us as civil counsel, therefore, is that opportunities will increasingly present themselves during civil trials to challenge the admissibility of an opponent s evidence. What I hope to do in this paper is to generate some interest among civil practitioners in this most valuable and comparatively under-utilized area of trial practice. This paper deals with a few, admittedly arbitrarily selected, issues that frequently arise during the course of a civil trial. This paper will focus on five specific areas: 1. The role of the Judge as gatekeeper 2. Are the Rules of Evidence in Civil Cases Different from Criminal Cases? 3. Treating vs. Non-Treating Doctors: The Rule Dilemma 4. The Expert as Advocate 5. The Order of Witnesses 6. Business Records: Hearsay and Sections 35 and 52 of the Evidence Act Let me begin by discussing the primary role of the trial judge. 1. The Role of the Judge as Gatekeeper It is axiomatic that a primary function of a trial judge at any trial, (civil or criminal, judge alone or judge and jury) is to rule on the admissibility of evidence. Increasingly, however, in recent years at least, a practice has developed in Ontario, primarily in civil cases, and particularly in the context of trials by judge alone, whereby evidence, be it expert evidence of otherwise is, to

5 4 some extent, provisionally or conditionally admitted on the basis that any suggested deficiencies in the evidence can be dealt with by attaching lesser weight to the testimony at the end of the day. Despite this apparent trend, in 1999, Justice Ian Binnie, in R. v. J.- L.J. 4, speaking for the Supreme Court, suggested a very different and proactive judicial approach, albeit in the context of expert testimony. He stated: In the course of Mohan and other judgments, the Court has emphasized that the trial judge should take seriously the role of gatekeeper. The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties can go at the end of the day to weight rather than admissibility. The Court s gatekeeper function must afford the parties the opportunity to put forward the most complete evidentiary record consistent with the rules of evidence... 5 [emphasis added] Because Justice Binnie s comments were contained in a judgment in a criminal case dealing with the admissibility of expert testimony, the question became whether the cautionary directive against provisional admissibility would also apply in civil proceedings and, if so, whether it should apply beyond simply issues concerning expert testimony. Today, the answer appears to be that Justice Binnie s concerns do apply in civil cases. Further, anecdotally at least, the trend seems to indicate that increased judicial scrutiny is being exercised beyond simply the admissibility of opinion evidence. In 2006, the criticism of the concept of provisional or qualified admissibility in a civil case was reinforced by Mr. Justice Todd Ducharme in the Dulong case 6. Dulong involved an action brought against a brokerage firm and two of its investment advisors. The claim was based upon an allegation that the plaintiff had suffered significant stock market losses as a result of the defendants alleged failure to act in accordance with the standards of care required of an investment advisor in the circumstances. During the course of the trial, the defendants objected to the admissibility of the evidence of an expert witness, a lawyer, who had practiced corporate and securities law for 15 years and was, for six years, a senior officer of the Ontario Securities Commission (OSC). The expert was called to give testimony in relation to the standards and practices of the brokerage industry against which the defendants conduct was to be measured. 4 [2000] 2 S.C.R. 600; [2000] S.C.J. No. 52 (S.C.C.) 5 Ibid., at Q.L. paras ; S.C.R. at p Dulong v. Merrill Lynch Canada Inc. (2006), 80 O.R. (3d) 378 (Ont. Sup. Ct.), per Ducharme, J.

6 5 In ruling the evidence inadmissible, Justice Ducharme applied the four criteria established in Mohan 7 for the admissibility of expert testimony: relevance, necessity, the absence of an exclusionary rule, and a properly qualified expert. 8 In the course of his ruling that the expert testimony was inadmissible, on the basis that the fourth Mohan criterion (a qualified expert) had not been met, Justice Ducharme had this to say: There is no question that, in civil cases, at least, the path of least resistance in matters such as these seems to be to admit the evidence [page 384] and then compensate for any of its weaknesses by attaching less weight to the opinion. But such an approach is an abdication of the proper function of the trial judge and was explicitly rejected by Binnie, J. in R. v. J(L.-J) [2000] 2 S.C.R. 600; [2000] S.C.J. No 52, at p. 613 S.C.R. [emphasis added] 9 The court s increasing concern with the concept of qualified or provisional admissibility, particularly as it relates to expert testimony, gained further purchase in the Superior Court of Ontario in the 2009 mid-trial ruling in Alfano v. Piersanti, 10 a decision recently affirmed by the Ontario Court of Appeal. 11 In the course of a ruling (discussed in more detail below in the section entitled Experts as Advocates ) disqualifying an expert on the basis that the expert had assumed the role of an advocate, Madam Justice Ellen Macdonald adopted the abovereferenced comments of Ducharme J. in the Dulong case. Macdonald J. expressly rejected the submission that the frailties of the challenged expert s evidence could be dealt with at the end of the case, rather than by excluding the evidence outright at the outset. 12 She concluded:... Mr. M. repeatedly cautioned me of the risk that in deciding the issues on this voir dire, I would risk the likelihood of making findings that would ultimately pre-judge the decisions that I will have to make after hearing all of the evidence at the conclusion of this trial. I do not accept this submission. On this voir dire, the focus is on the independence and impartiality of Mr. A-C. There is no final determination of the issues in this case. This cannot occur until the trial is completed. 7 R. v. Mohan, [1994] 2 S.C.R. 9, cited by Ducharme J. in Dulong at Q.L., para. 8 8 It is beyond the scope of this paper to discuss in detail the Mohan criteria for the admission of expert evidence. The Mohan case, along with R. v. Abbey [1982] 2 S.C.R. 24, R v Lavallee [1990] S.C.J. 96, and R v. Abbey 2009 ONCA 624, are required reading for all trial lawyers respecting the admissibility of expert testimony. 9 Dulong, supra, fn 6, at Q.L. para (2009) CanLII (Ont. Sup. Ct.), March 18, 2009, per Ellen Macdonald, J; reaffirmed on a motion to reconsider or declare a mistrial, released March 23, Carmen Alfano Family Trust (Trustee of) v. Piersanti 2012 ONCA 297, at para.. 120; leave to appeal to the Supreme Court of Canada dismissed, 2012 CanLII (SCC) 12 Ibid, at Q.L. paras. 9-10, 16

7 6... For all of these reasons, Mr. A-C is disqualified as an expert in this case. 13 [emphasis added] The conceptual difficulty with what this writer has termed the qualified or provisional admissibility approach was also the subject of critical comment by Commissioner Goudge in the course of his discussion of the role of the courts. While in a somewhat different context, Justice Goudge described the difficulty, using an analogy that has resonance here: Considerable skepticism was articulated at the round tables about one possible remedy instructing the jury to give less weight to evidence that experts provide... Professor Erica Beecher-Monas of Wayne State University School of Law pointed out the problem with unringing the bell once the jury has heard the supposedly expert testimony. Both she and Professor Gary Edmond of the Faculty of Law at the University of New South Wales stressed the difficulty for the jury of disregarding such information. Professor Edmond also emphasized the need for gatekeeping at the front end and the systemic problems with allowing the evidence and then trying to correct it through rebuttal experts, crossexamination and warnings. Justice [Marc] Rosenberg and Mr. [Patrick] LeSage agreed that it is best to prevent witnesses from giving evidence... The nature and limits of... [an expert witness s] expertise should, as with all expert witnesses, be defined with precisions at the start of the trial and then vigilantly enforced by the trial judge... Defining the limits of expertise is the key part of the trial judge s role as gatekeeper. 14 [emphasis added] More recently, Lauwers J. (now Lauwers J.A.) in two separate decisions, referenced the cautionary language of Commissioner Goudge. In Kusnierz v. Economical Mutual Insurance Co. 15, a 2010 case dealing with the admissibility of expert evidence, Justice Lauwers noted in the course of his ruling that: It is important that trial judges take seriously the "gatekeeping" function: see the Honourable Stephen T. Goudge, 13 Ibid, at Q.L. paras ; throughout this paper, the names of witnesses and legal counsel have been omitted and initials used in place thereof. 14 Goudge Report, supra, fn. 2, Vol. 3, p ONSC 5749

8 7 Commissioner, Report of the Inquiry into Paediatric Forensic Pathology in Ontario, Volume III, Chapter 18 (the Goudge Inquiry). While the new wording [of Rules and 53.03] does not apply to this case, the underlying policy of due caution does. [emphasis added] The following year, in Brandiferri v. Wawanesa Mutual Insurance Co. 16, Justice Lauwers confirmed that there has been,... a sea change in the judicial approach to expert evidence brought about by the 2007 Civil Justice Reform Project... and by the 2008 Report on the Inquiry into Pediatric Forensic Pathology in Ontario... [emphasis added] Where then does this leave the practice of provisional or qualified admissibility? In this writer s view, given the recent reaffirmation of the trial judge s role as gatekeeper in both criminal and civil cases, first, with respect to the admission of expert evidence, counsel should come to court prepared either to establish with precision the foundation and scope of the expert testimony being adduced, or, alternatively, be in a position to challenge the qualifications, or the admissibility of the opinions, of the opposing party s expert, during a voir dire constituted specifically for that purpose. As is evident, certainly in Ontario, judges will likely now be more amenable to making those rulings at the outset of an expert s court attendance and prior to the commencement of his/her substantive testimony, rather than permitting, as they have in the past, the evidence to be adduced provisionally and then considered, at the end of the case. The long-accepted practice of simply according the testimony lesser weight at the end of a case, given its doubtful provenance, will be countenanced on a much less frequent basis. That is not to say that a judge will never admit expert testimony but accord it lesser weight. As will be seen, that frequently happens with respect to opinion evidence based upon a somewhat tenuous factual foundation. The opinion evidence is still admissible, but is to be accorded lesser weight; so, too, with respect to the testimony of treating experts in personal injury actions where the potential advocacy of such an expert may result in a trial judge diminishing the weight of the evidence presented. With respect to other evidentiary issues not involving expert testimony, while a failure to object to the introduction of inadmissible evidence will have a significant negative impact on the prospects of success on any civil appeal, including an appeal from a jury s verdict, 17 adopting the language of Ducharme J. in Dulong, permitting the introduction of otherwise inadmissible evidence is, arguably, an abdication of the proper function of the trial judge ONSC Brisco Estate v. Canadian Premiere Life Insurance Co, 2012 ONCA 854 at para.70, the failure to object will be given considerable weight, per Rosenberg JA.: 18 Dulong, supra, fn. 8

9 8 It is also difficult to distinguish the concerns expressed in the Goudge Report and elsewhere, about the dangers of permitting unsound evidence of an expert nature to influence unfairly a judge or jury in a given case, with the same concerns pertaining to other similarly questionable evidence. In both cases, the result is the same: the trial of fact may accord the questionable evidence undue weight. As a result, it is this writer s view that counsel can generally expect to see trial judges, certainly in jury trials, and, to a lesser extent, in judge-alone trials, taking a more activist gatekeeping role with respect to issues of admissibility pertaining to all kinds of evidence, be it a criminal case or a civil one. 2. Are the Rules of Evidence in Civil Cases Different from Criminal Cases? As a corollary to the previous discussion, a question that civil counsel, and occasionally trial judges, frequently ask is whether the rules of evidence are different in criminal and civil cases. This may on occasion become significant where civil counsel is unable to find support for a proposition in a civil case but does find support in the criminal jurisprudence. In those instances, a trial judge, or opposing counsel, may try to distinguish a rule of evidence being presented on the basis that the rules of evidence in criminal cases have no application to a trial in a civil case. The short answer to the question is that, with the exception of specific rules of evidence that have application, by definition, only to criminal cases (such as, for example, the provisions of section 24(2) of the Charter dealing with exclusion of evidence following alleged Charter breaches, or common law issues concerning voluntariness and the admissibility of an accused s confession), the civil and criminal rules of evidence are precisely the same. In Baker v. Hutchinson 19, Dubin J.A. (as he then was) cited with approval the following passage from 7 C.E.D. (Ont. 2 nd ), at p. 9: There is no difference, as to the rules of evidence, between civil and criminal cases; what may be received in one case may be received in the other, and what is rejected in one ought to be rejected in the other. 7 C.E.D. (Ont. 2nd) at p The qualification to this general proposition has been concisely articulated by Professor David Paciocco in his text: 21 It is sometimes said that [t]here is no difference, as to the rules of evidence, between civil and criminal cases. quoting Baker v 19 [1976] O.J. No. 2258, Ont. C.A. 20 Ibid., at para.. 36, per Dubin J.A. 21 D. Paciocco, The Law of Evidence, 5 th ed Irwin Law Inc.: Toronto, 2008., at page 12; see also Brisco Estate v Canadian Premiere Lie Insurance Co., 2012 ONCA 854 (Ont. C.A.) per M. Rosenberg J.A., at para. 70.

10 9 Hutchinson (1976) 13 OR (2d) 591 at 596 (CA). This is not entirely so. Evidence may be admissible in civil proceedings but not in a criminal case. For example, because of special statutory treatment, the admission of bad character evidence is not as restricted in child protection proceedings as it is in a criminal prosecution involving the same allegation of abuse. The Charter does not apply per se to the admission of unconstitutionally obtained evidence when it is being used in private, civil proceedings. Evidence that may have to be excluded under the Charter in a criminal case is therefore generally admissible in a civil case. While judges in civil cases have the discretion to exclude unconstitutionally obtained evidence and that discretion is to be informed by Charter values, it is an error for a civil judge to mimic the approach taken in criminal cases without consideration of the very different issues and values at stake in the two types of proceedings.[emphasis added] Civil counsel may, therefore, occasionally find it useful to consider a proposition that has been utilized in a criminal case but has not yet found its way into the civil jurisprudence. Nothing ventured, nothing gained! 3. Litigation Experts vs. Non-Litigation Experts ; Treating vs. Non-Treating Doctors: The Rule Dilemma Nothing has generated more, seemingly needless, litigation in the last three years since the 2010 promulgation of the amendments to the Rules of Civil Procedure (the Rules ) than the issue of whether a non-litigation expert, as distinguished from a litigation expert (i.e. a witness who has been retained during the course of a proceeding solely to assist one party through the provision of expert testimony) must comply strictly with the provisions of Rule 53.03, including the signing of a Form 53 Certificate, in connection with the preparation of his/her report. Numerous cases have come down on opposite sides of this issue. The result is that the civil litigation bar, including those engaged in personal injury actions, are perplexed as to the applicability of Rule to a variety of non-litigation experts, including treating versus non-treating health professionals. On one side of the issue is a group of cases having their genesis in the decision of Justice Pat Moore in Beasley v. Barrand 22. There, the trial judge ruled, in a motor vehicle personal injury case, that unless the three health care practitioners (Accident Benefits ( AB ) Assesors retained by an AB Insurer and not by either party), whose evidence the defendant wished to adduce, (a) prepared Rule compliant reports and (b) signed the appropriate Rule 53 Form, the evidence of these witnesses would not be admitted into evidence. Moore J. held the amended Rule (hereafter, Rule ) applied to such non-litigation experts ONSC 2095

11 10 Conversely, in another group of cases, trial judges have concluded that Rule does not apply at all to experts who are not providing litigation opinions. In a 2012 ruling in Continental Roofing Limited v. J.P. s Hospitality Ltd 23, for example, the plaintiff retained the defendant to undertake repairs on the roof of the former s hotel. While the work was being carried out, leaking occurred, causing substantial damage to the inside of the hotel 24 in respect of which the plaintiff sued the defendant for damages. During the course of undertaking the initial roof repairs, prior to the initiation of the lawsuit, the defendant retained, in the ordinary course of business, one Mr. Bruce Caughill, an architect and an engineer, to provide consulting services with respect to theroof repairs to be undertaken. The issue raised in the Continental Roofing case was whether the provisions of Rule applied at all to that witness, given his prior involvement in the events leading up to the lawsuit. The plaintiff argued that Rule did apply despite the expert s pre-litigation involvement, and that because of the witness longstanding association with the defendant in a non-litigation context, Mr. Caughill was not a properly qualified expert witness. 25 In his decision that reviewed a number of the leading authorities on the issue, E.J. Koke J. ruled that Rule 53.03: He concluded:... is limited in its application to witnesses who are hired as litigation experts and have not had any involvement with the subject matter of the litigation or either of the parties. 26 [emphasis added] In my view, Mr. Caughill is not to be regarded as an expert under Rule He has not been retained by the defendant for the sole purpose of providing expert testimony at trial. He is not what we commonly refer to as a litigation expert I am of the view that Mr. Caughill should be permitted to provide evidence with respect to his involvement in the subject matter of this action and that his evidence can include both factual evidence and opinions which he formed concerning the methods employed by the plaintiff in carrying out the work and the cause of the water leakage in the building [emphasis added] ONSC Ibid, at para Ibid, at para Continental Roofing, Ibid, at para Ibid, at para Ibid, at para. 42

12 11 When coming to the conclusion that Rule was never intended to apply to a witness such as Mr. Caughill, Justice Koke said: The amendments to the Rule were intended to eliminate the use of hired guns or opinions for sale in civil litigation, which resulted in potentially biased evidence being given at trial. In the case of Mr. Caughill and looking at the mischief that Rule was intended to address, I do not find him to be a typical hired gun or just a litigation expert in the circumstances of this case In conclusion, I find that requirements of Rule do not apply to Mr. Caughill. 30 [emphasis added] The amount of judicial ink spilled in relation to this issue, and the divergent views expressed by various judges who have attempted to tackle the question, are demonstrative of the fact that Rule is badly in need of either judicial clarification from the Court of Appeal, or, alternatively, significant re-drafting. To put the matter succinctly, in this writer s view, because of the specific language of Rule 53.03, including, most particularly, the explicit requirements of Form 53 that go along with it, there is a serious question as to whether the Rule was ever intended to apply to anyone other than litigation experts. It may also be said that the extensive discussion on this question in numerous cases frequently conflate the issue of the applicability of Rule with the application of traditional common law rules respecting of the admissibility of expert testimony. 31 A brief review of the history of the January 1, 2010 Amendments is in order. (a) The Osborne Report - November 2007 and the New Rules In November 2007, former Associate Chief Justice Coulter Osborne published his report ( the Osborne Report ) containing numerous recommendations, including proposals to amend the Rules of Civil Procedure. In addition to the changes proposed to the summary judgment rules, significant changes were also proposed to the rules respecting expert witnesses. The relevant amendments to the New Rules adopted, for the most part, those recommendations. The relevant portions of the New Rules are set out for ease of reference here. Emphasis has been added in an effort to highlight the reason for the divergence of judicial opinion on the issue of the application of Rule to non-litigation experts. 29 Ibid, at para Ibid, at para e.g. R. v. Mohan, [1994] 2 S.C.R. 9; R v. Abbey, 2009 O.J. No 3534 (Ont. C.A.)

13 12 DUTY OF EXPERT (1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules, (a) To provide opinion evidence that is fair, objective and non partisan; (b) To provide opinion evidence that is related only to matters that are within the expert s area of expertise; and (c) To provide such additional assistance as the court may reasonably require to determine a matter in issue. DUTY PREVAILS (2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged. EXPERT WITNESSES Expert s reports 53.03(1) A party who intends to call an expert witness at trial shall... serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). (2) A party who intends to call an expert at trial to respond to the expert witness of another party shall... serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). (2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information: 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.

14 13 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, i. A description of the factual assumptions on which the opinion is based, ii. 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 7. An Acknowledgment of Expert s Duty (Form 53) signed by the expert... (3) An expert may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to the issue is set out in, (a) A report served under this rule; or (b) A supplementary report served on every other party to the action... [emphasis added] Notably, there is no definition of the term expert witness in the New Rules. It is also apparent that the relevant rules appear to focus on experts retained in relation to a proceedings and not otherwise; a fact emphasized expressly in the language of Form 53, the relevant portion of which reads: ACKNOWLEDGMENT OF EXPERT'S DUTY I have been engaged by or on behalf of (name of party/parties) to provide evidence in relation to the above-noted court proceeding. [emphasis added]

15 14 (b) The Problems with Rule It is difficult, therefore, on the plain wording of the Form 53, to suggest that, for example, a treating physician, an accident benefits assessor, or the engineer in the Continental Roofing case, could accurately complete and sign a Form 53 without misrepresenting the nature of his/her involvement in the case. Clearly, such a witness has not been retained by or on behalf of a party. Indeed, this concern with misrepresentation has been the subject of comment, both expressly or by implication, in a number of the decisions discussing this issue. For example, in Justice Moore s ruling in the Beasley case, each of the AB assessors felt it necessary to sign a variety of modified Form 53s in an effort to bring themselves within the language of Form 53 and in order to comply with that Rule s requirements. Justice Moore noted: In this case, the doctors were not retained by a party to this proceeding, nor were their reports prepared in the context of the current dispute. In addition, the form signed by Dr. Weinberg states that he has "been engaged by or on behalf of the lawyers for the defendants to provide evidence in relation to the abovenoted court proceeding". Dr. Weinberg has not been retained by defence counsel. His report was written to an insurance adjuster for the benefit of the accident benefits insurer. [14] The original forms signed by Drs. Soric and Moddel confirm that they had been "engaged by or on behalf of" the insurance adjusters. The forms these doctors signed more recently state that they have been "engaged by or on behalf of the defendant... in relation to [this] court proceeding". There is no contest that none of the three doctors had been retained by or on behalf of the defendants. These reports were not commissioned by any party to this action for the purposes of this action. 32 [emphasis added] Moore J. ruled their evidence inadmissible, in part, on the basis of the absence of the filing of a Rule compliant report. In McNeill v Filthaut, 33 Justice H. MacLeod-Beliveau, while expressing the same Form 53 concerns, came to a different conclusion. She held it would be inappropriate for AB assessors to sign a Form 53 in the circumstances. 32 Beasley, supra, at para and McNeill, v Filthaut [2011] O.J. No (Ont. Sup. Ct.)

16 15 In this case, the accident benefit assessors were retained by the accident benefit insurer to complete their assessments and reports. The accident benefit assessors were therefore not retained by a party to this action. Their expert reports do not comply with Rule as they fail to contain the entirety of the information required by Rule 53.03(2.1). It would be misleading for these expert witnesses to sign the Acknowledgement of Experts' Duty in Form 53 because they were not engaged to prepare their reports by a party to the litigation... I find that Rule , Rule 53.03, and Form 53 are applicable in the limited circumstances of experts retained by or on behalf of a party to the litigation.. For these reasons, I grant the relief sought in paragraph 1 (a) of the Notice of Motion. A declaration shall issue that the requirements outlined in Rule 53.03, as they relate to expert witnesses, do not apply to individuals retained by non-parties to the litigation. 34 [emphasis added] Justice MacLeod-Beliveau then permitted the witnesses to provide opinion evidence without Rule compliance, relying upon the fact that the rule was amended as a result of the Osborne Report, were not intended to apply to anyone other than a hired gun : There appears to be no intent in amending Rule 53.03, based on the recommendations made by the Civil Justice Reform Project, to include experts such as the accident benefit assessors in this case because they are not "hired guns" or "opinions for sale" as they have not been retained by or on behalf of one of the parties. 35 [emphasis added] Conversely, Justice Moore, in Beasley, relied on the same concerns expressed in the Osborne Report 36 to conclude that all witnesses providing opinion evidence, whether or not retained by a party, including accident benefits assessors, were required to comply with all aspects of Rule 53. Indeed, he invited counsel to obtain Rule compliant reports from the assessors, an invitation that was not acted upon. He said: [61] In my view, there can be no doubt but that rule was amended to reflect the concerns and recommendations raised by Mr. Osborne and the many people he consulted in the course of 34 Ibid,. at paras. 53, 59 and 60, per H. MacLeod-Beliveau J. 35 Ibid, at para Beasley, supra, at para..6

17 16 his review of the civil justice system in this province. I propose to give effect to the rule and the underlying rationale for its creation.... In my view, having considered all of the circumstances of this case, I think that the application of rule to the proposed evidence of the three experts is necessary. I am troubled by the fact that these experts were retained in fact by an insurer that is not before this court. They were not treating physicians. Their opinions addressed instructions that are not well described in the evidence before me. 37 [emphasis added] Admittedly, there were other factors militating against admissibility in the Beasley case that concerned Justice Moore; including, most particularly, the fact that none of the three assessors had seen the plaintiff for seven years, and their opinions were found to concern issues separate and distinct from the issues raised in the tort case. As he noted: Further, on the facts of this case, the three medical assessments, even if proven to contain expert opinions related only to matters within the expertise of their authors and even if they are correct, fair, objective and impartial, notwithstanding that they were written for purposes largely, perhaps entirely, unrelated to the issues between the parties to this action, are snapshots of the plaintiff's situation taken at a point more than seven years ago. These assessments can be of little, if any, help to the jury in assessing the plaintiff's medical and vocational progress (and the defendant's exposure potentially arising) over the past seven years. There is no contest that these doctors did not see the plaintiff after January of 2003 and that several doctors engaged for the purposes of this litigation did.... I am not persuaded that the interests of trial fairness could be well served by allowing the three experts to testify; the additional time, complexity and expense necessarily involved, when weighed against the prejudice to the plaintiff, prejudice that I find cannot be compensated for by costs or an adjournment... The three medical reports at issue here were authored for the purpose of assisting an insurance company to process an accident benefits claim brought forward by its insured. That claim triggered contract and statutory provisions of an automobile 37 Beasley, supra, at paras.61 and 65.

18 17 insurance policy, matters very different from the rights and obligations of the litigants before this court. 38 [emphasis added] Justice Moore did, however, acknowledge that in different circumstances, an AB assessor might be able to testify in a tort proceeding, and possibly without having to comply strictly with the provisions of Rule As he said: I am not to be heard to state that experts retained by accident benefits insurers cannot give opinion evidence in a tort action; rather, I say that such experts should first comply with rule I say "should" for there may be cases where that is not possible and then the court might consider relieving against noncompliance to ensure a fair adjudication of the issues upon their merits but this is not one of those cases. 39 [emphasis added] While the concerns expressed by Justice Moore concerning the limited relevance of the proposed evidence, and the balancing of prejudice against the probative value, are pertinent to questions surrounding the admissibility of the expert opinions based upon the application of the common law principles espoused in Mohan (SCC) 40 and Abbey (Ont.C.A) 41, the discussion, respectfully, appears to conflate the issue of the application of Rule with traditional common law principles concerning the admissibility of expert evidence. While both are relevant to the admissibility of the any opinion evidence, they stand on separate and distinct footings and ought to be considered as such. (c) The Categories of Experts Because of the divergent views expressed in these two lines of authority, distinctions have necessarily been made between various categories of expert witnesses. In an unreported decision in Slaught v. Phillips 42, summarized in McNeill v. Filthaut 43, Turnbull J. permitted a vocational consultant who had provided care to the plaintiff at the instance of an accident benefits insurer to give opinion evidence at trial in. In McNeill, Justice MacLeod-Beliveau commented on Justice Turnbull s categorization of medical experts in the Slaught case in the following way 44 : Turnbull J. made a distinction between treating expert witnesses and non-treating experts who are retained by a party solely to express opinions during trial. He concurred with the ruling of 38 Ibid, at paras. 35, 36 and Ibid., at para supra. 41 supra 42 Unreported Decision of Turnbull J., May 18, 2010, Ont. Sup. Ct. 43 [2011] O.J. No at para [2011] O.J. No. 1863

19 18 Justice Moore in Beasley v. Barrand but held that there were different classifications of experts which came before the court and that Rule was applied more stringently to some classifications of experts than to others. I have summarized Turnbull J. s classifications as follows: (1) treating experts who form treatment opinions as part of their ongoing work to which Rule is not strictly applied and for which relief from non compliance with Rule can be ordered; (2) Experts who are retained by a party to an action to express litigation opinions but who are not treating specialists to which Rule is strictly applied. (3) Experts retained by third parties such as accident benefit insurers, disability insurers, to provide litigation opinions to those third parties with respect to causation, proper treatment, eligibility for insurance coverage, and a multitude of other issues to which Rule is strictly applied; (4) Experts who are paid by third parties, but then provide care to a party in the action, assisting that person in his or her needs, produce a report expressing opinions, with respect to the need for treatment, the recommended course of treatment, and the next step to be taken, who become experts expressing treatment opinions to which Rule is not strictly applied and for which relief from non-compliance with Rule can be ordered. Turnbull J. allowed the expert vocational consultant to testify as a treating expert and, following Beasley v. Barrand, relieved against non-compliance with Rule He found that the case before him was one deserving of relief from non-compliance with Rule [emphasis added] Turnbull J. s four classifications of medical expert witnesses highlight the difficulty presented by the language of the current amendments. While some authorities have determined that Rule applies to all of Justice Turbull s categories of expert witnesses, 46 (subject to the 45 McNeill v. Filthaut, supra, [2011] O.J. No. 1863; 2011 ONSC 2165 (Ont. S.C.) per H. MacLeod-Beliveau J. at paras. 44, 58 and For example, Beasley v. Barrand, 2010 ONSC 2095 (Ont. S.C.) per Moore J.; Jeffrey v. Baker, [2010] O.J. No (Ont. S.C.) per MGJ Quigley J.

20 19 issue of waiving compliance found in subsection 53.03(3)), others have determined that, strictly construed, Rule does not apply at all to non-litigation experts. 47 This divergence of judicial opinion has been explicitly recognized in a number of cases including. McNeill 48, and in Brandiferri v. Wawanesa Mutual Insurance Company 49, where Lauwers J. (as he then was) noted: The controversy about the proper reach of these new rules is reflected in the opposed decisions of Moore J. in Beasley v. Barrand... and MacLeod-Belliveau in the McNeill v. Filthaut... about how best to accommodate what appears to be a sea change in the judicial approach to expert evidence brought about by the 2007 Civil Justice Reform Project ( The Osborne Report ) and by the 2008 Report on the Inquiry Into Pediatric Forensic Pathology in Ontario ( Goudge Report ). 50 [emphasis added] The language of Rule has also led, as is evident, to different solutions. Justice Moore s decision requires all witnesses providing expert opinions of any kind, to prepare and file Rule compliant reports, regardless of whether they were retained by a party or otherwise, or during the course of the litigation or the events leading up to it 51, subject, of course, to the express power of the trial judge to relieve against non-compliance set out in the Rules. 52 (d) Treating vs. Non-treating Experts A significant issue has also arisen with respect specifically to position occupied by the treating experts as distinct from the non-treating ones. How, and to what extent, are they to be treated in the context of Rule 53.03? To take a plaintiff s primary care physician as an example, while acknowledging that some of the authorities have permitted such witnesses to give evidence at trial, Moore J. in Beasley distinguished those cases on the basis that:... The cases cited to me all predate the amendments to Rule 53 and they involve very different considerations. 47 For other cases on various sides of this issue, see also Kusnierz v. Economical Mutual Insurance Co 2010 ONSC 5749, O.J. No 4462 (Sup Ct) per Lauwers J.; Brandiferri v. Wawanesa Mutual Insurance Co 2011 ONSC 3200, [2011] O.J. No. 2723; Farooq v Miceli 2012 ONSC 558, [2012] O.J. No. 457 per Lauwers J.; Continental Roofing Ltd v. J.J.s Hospital Ltd 2012 ONSC 1751, [2012] O.J. No. 1166; Northern Sawmills Inc. v Northwest Installations Inc 2012 ONSC 4201, [2012] O.J. No McNeill v. Filthaut, supra, at para ONSC 3200; [2011] O.J. No (Ont. S.C.) per Lauwers J. 50 Ibid at para Beasley, supra, at para Ibid., at para. 70, and Rule 53.03(3)

21 20 We are not dealing here with the treatment related opinions formed in the course of providing primary care to a plaintiff and nor is the opinion of any of the three experts here so central to the outcome of the litigation as might be the opinion of an origin and cause expert, an assistant fire chief in a case where negligence causing a building fire is alleged 53 [emphasis added] Moore J. appears to be saying that such treating witnesses must still comply with the provisions of Rule 53.03, while at the same time acknowledging that such experts stand on a different footing than other non-litigation expert witnesses whose opinion are not so central to the outcome of the litigation. 54 As an illustration of the treatment of treating physicians, Darla Wilson J., during a 2011 jury trial in Gardner v. Hann 55, in an unreported ruling, permitted treating witnesses to testify without having prepared Rule complaint reports and without having signed a Form 53. In Gardner, a personal injury case, the plaintiffs served a number of section 52 Ontario Evidence Act ( OEA ) notices in relation to a number of the plaintiff s original treatment records. No Rule compliant reports were prepared by any of those particular witnesses. It is also worth observing that most of the reports and records in the case were prepared prior to the enactment of the New Rules. The plaintiffs brought a motion at the outset of the trial, inter alia, for a declaration that a number of such treating physicians, including the hospital-based emergency physician, did not have to sign the Form 53. It was argued that those witnesses could not honestly state that they had been retained by plaintiffs counsel and, as a result, were uncomfortable with signing a form that said that they were. D. Wilson J. waived the necessity of requiring these treating experts to sign a Form 53 in the circumstances. As an aside, no objection was raised by defence counsel during the motion that no Rule compliant reports had been prepared or served. That issue, therefore, was not argued. Significantly, during the testimony of the emergency physician, Wilson J. permitted the emergency physician to testify, inter alia, not only about the facts observed and the events that occurred during of the plaintiff s hospital attendance but also about his opinions, including his impressions and diagnoses of a traumatic brain injury that informed his treatment of the plaintiff at the time of her admission. That same expert was restricted, however, from giving general opinion evidence as a so-called litigation expert about matters beyond his treatment of the plaintiff at the hospital. She ruled that the witness was not strictly an expert witness in the traditional sense, although the evidence he was entitled to provide was not restricted solely to facts Beasley, supra, at paras. 63 and Ibid., at para Unreported Ruling of D. Wilson J., May 11, Ibid, Unreported Ruling of Wilson J., May 11, 2011

22 21 Further, when it came to consider the ability of the plaintiff to call more than three witnesses, Wilson J. held that such treating witnesses would not be counted in the context of that provision. 57 Lauwers J., in Farooq v. Miceli 58, directed that a report of the plaintiff s family doctor in the context of a medical malpractice action could be received on the defendant s summary judgment motion to dismiss the action provided the doctor prepared a report that complied in substance with Rule failing which the summary judgment motion for the dismissal of the action would be granted. 59 During the course of his ruling, Lauwers J. commented upon the special position of such a treating doctor in the context of a personal injury trial. He said: For practical purposes, treating physicians have always been allowed to give evidence and have been allowed to give opinion evidence about their working diagnosis and working prognosis. Treating physicians use their expertise to form opinions routinely in the examination of patients, in their assessment of patients, and in their treatment. Moore J. recognized in Beasley v. Barrand... That they do fall into a different category noting at paragraph 64 that: We are not dealing here with the treatmentrelated opinions formed in the course of providing primary care to a plaintiff.... In Gutbir (Litigation Guardian of) v. University Health Network 2010 ONSC 6394, [2010] O.J. No (S.C.), at paras , D. Wilson J. permitted the treating doctor to give evidence as a fact witness within limits but not as an expert. I accept the view of Rocammo J. in Williams (Litigation Guardian of) v. Bowler, [2005] O.J. No (S.C.) at para 222: A medical witness who wears two hats, and who testifies both as a treating physician and as an expert, may, depending on the circumstances of the case, be in the best position to offer firsthand observations as to the patient s condition over the course of medical history; however to the extent that the physician has any personal interest in the outcome of the case or lacks the objectivity and independence essential to the medical expert, this may adversely affect the weight to be given to the expert testimony. 60 [emphasis added] 57 s. 12, Evidence Act. R.S.O. 1990, c. E 23, as amended. 58 [2012] O.J. No. 457 (Ont. S.C.) 59 Ibid, Farooq, at para Ibid, Farooq v. Miceli at paras