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STRICT ENFORCEMENT OF RULE 53.03 APPLIES TO “LITIGATION OPINIONS”; NOT NECESSARILY “TREATING OPINIONS”

October 19, 2010

The opinions of doctors and other treating professionals are often relied upon to prove the cause and severity of a plaintiff’s alleged injuries. In Canada, expert opinion is admissible if it is necessary to assist the trier of fact; it is relevant; it comes from a properly qualified expert; and admission of the expert opinion does not offend any exclusionary rule (R v Mohan, [1994] 2 SCR 9). In Ontario, Rule 53.03 of the Rules of Civil Procedure governs the form and content of expert reports.

The Plaintiff in Slaght v Phillips (Unreported) wished to call a vocational rehabilitation consultant to give opinion evidence at trial. The Defendant objected, questioning the consultant’s qualifications as an expert and compliance with Rule 53.03. The Judge found that the consultant was a treating expert witness – similar to a family doctor – and her opinion met the four factors in R v Mohan. The question remained as to whether the consultant’s opinion evidence was admissible in Ontario under Rule 53.03.

It was not disputed that the consultant did not meet the formal requirements of Rule 53.03. The Defence relied on the recent case Beasley and Scott v Barrand 2010 ONSC 2095 to show that non-compliance with Rule 53.03 is fatal to a motion to introduce expert evidence. In that particular case, the defence wished to call as experts three physicians who saw the plaintiff once in relation to another lawsuit. The defence’s motion was denied because they were in non-compliance with Rule 53.03. It was noted that where an expert can only provide a snapshot of the plaintiff at a given point in time for a separate lawsuit, strict compliance with Rule 53.03 is required.

In Slaght v Phillips, the consultant was not providing a snapshot of the Plaintiff at a given time, but had an opinion based upon continuous treatment of the Plaintiff post-accident and on instruction from the insurance company. The Judge noted this distinction between what he referred to as “treating opinions” and “litigation opinions”. Treating opinions are formed in the everyday treatment of a person, for example when a patient seeing a family doctor due to illness. Litigation opinions are those provided by experts who have been specifically asked to provide evidence at trial. Strict enforcement of Rule 53.03 will apply to litigation opinions, but not necessarily to treating opinions. Since the consultant’s opinions were formed in her general treatment of the Plaintiff and meets the R v Mohan factors without prejudice to the Defendant, the Judge did not insist upon strict compliance with Rule 53.03. Hence, the vocational rehabilitation consultant was allowed to give her opinion evidence at trial.

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