Case In Point
Court of Appeal Holds that Non-Party and Participant Experts Need Not Comply with Rule 53.03
Date: June 10, 2015
Cases dealing with expert evidence have recently been considered by appellate courts. We have discussed two of those cases in our FTR Nows, Court of Appeal Holds that Counsel May Review Draft Expert Witness Reports and SCC Clarifies Test for Qualifying as an Expert Witness.
In Westerhof v Gee Estate, the Court of Appeal for Ontario returned to the topic of expert witnesses. This time, the question was whether Rule 53.03 of the Rules of Civil Procedure applies only to “litigation experts” as described in Rule 4.1.01 and Form 53 or whether it applies more broadly to all witnesses with special expertise giving opinion evidence.
In this personal injury case, the trial judge excluded evidence from various participant and non-party expert witnesses because they did not comply with Rule 53.03. On appeal, the Divisional Court held that the type of evidence (e.g. fact or opinion) at issue determines whether Rule 53.03 applies. Accordingly, Rule 53.03 applies where opinion evidence is at issue.
The Court of Appeal disagreed that the type of evidence was the key factor in determining the application of Rule 53.03. It held that participant experts and non-party experts can provide opinion evidence without complying with Rule 53.03 where:
 […] 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 53.03 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.
If the expert witness offers evidence extending beyond the above limits, then Rule 53.03 applies.
The Court of Appeal also confirmed that, as with all evidence, the court retains its gatekeeper function in order to ensure that proper and relevant evidence gets in. For example, a court could order the participant expert or non-party to comply with Rule 53.03. It could also exclude all or part of the opinion evidence of the participant or non-party if the evidence did not meet the test for admissibility.
Sonya Sehgal is a 2015 Summer Student with Hicks Morley.