Westerhof v. Gee Estate, 2015 ONCA 206

• Jurisdiction: Ontario
• Judge: Laskin, Sharpe and Simmons, JJ.A.
• Neutral Citation: 2015 ONCA 206
• Citation: 2015 ONCA 206,(2015), 331 O.A.C. 129 (CA),124 OR (3d) 721,[2015] OJ No 1472 (QL),331 OAC 129,(2015), 331 OAC 129 (CA),331 O.A.C. 129,[2015] O.J. No 1472 (QL),124 O.R. (3d) 721
• Date: 26 March 2015
• Court: Court of Appeal (Ontario)

Westerhof v. Gee Estate (2015), 331 O.A.C. 129 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. MR.031

Jeremy Westerhof (plaintiff/appellant) v. The Estate of William Gee and Kingsway General Insurance (defendant/ respondent )

Daniel McCallum (plaintiff/respondent) v. James Baker (defendant/appellant)

(C56514; C58021; 2015 ONCA 206)

Indexed As: Westerhof v. Gee Estate

Ontario Court of Appeal

Laskin, Sharpe and Simmons, JJ.A.

March 26, 2015.

Summary:

Rule 53.03 of the Ontario Rules of Civil Procedure set out the requirements for introducing the evidence of expert witnesses at trial. These two appeals raised issues about to whom rule 53.03 applied. Both appeals arose from claims for damages for injuries suffered in car accidents. Both cases were tried before a judge and jury. In each case, the defendant admitted liability for causing the accident. The issues at trial related to whether the accidents caused the plaintiffs' injuries and the quantum of damages.

The Ontario Court of Appeal disagreed with the Divisional Court's conclusion in Westerhof v. Gee Estate, reported at (2013), 310 O.A.C. 335, that the type of evidence, whether fact or opinion, was the key factor in determining to whom rule 53.03 applied. Based on the Court of Appeal's conclusions concerning to whom rule 53.03 applied, the Court agreed that the trial judge erred in holding as a general matter that the various medical practitioners who had treated or assessed Westerhof could not give opinion evidence because they had not complied with rule 53.03. Nonetheless, the trial judge did not err in excluding all of the evidence that he excluded. The Court addressed each of the impugned rulings in turn. In the end result, the Court ordered a new trial. The trial judge's erroneous evidentiary rulings prevented Westerhof from placing important evidence before the judge and jury that could reasonably have affected the outcome of the trial.

The Ontario Court of Appeal dismissed the appeal from the judgment in McCallum v. Baker (Sup. Ct.), dated December 20, 2012. The Court rejected Baker's submissions that the trial judge erred by allowing treating medical practitioners who had not complied with rule 53.03 to give "an avalanche" of opinion evidence going beyond the scope of their expertise and that did not arise directly from treatment of their patient. The Court also rejected the submission that the trial judge's jury instructions were unbalanced and failed to properly set out the defence position.

Evidence - Topic 7000.3

Opinion evidence - Expert evidence - General - Opinion evidence - What constitutes - On appeal to the Divisional Court, the plaintiff Westerhof claimed that the trial judge erred in his evidentiary rulings by failing to distinguish between opinion evidence given by litigation experts and opinion evidence given by "participant experts" and "non-party experts" - Westerhof argued that the latter two classes of witnesses were not caught by Civil Procedure Rule 53.03; rather, rule 53.03 applied solely to litigation experts (expert witnesses "engaged by or on behalf of a party to provide [opinion] evidence in relation to a proceeding") - In dismissing Westerhof's appeal, the Divisional Court held that the "important distinction is not in the role or involvement of the witness, but in the type of evidence sought to be admitted" - If the evidence at issue was opinion evidence, then compliance with rule 53.03 was required; if the evidence at issue was factual evidence, then compliance with rule 53.03 was not required - The Ontario Court of Appeal disagreed with the Divisional Court's conclusion that the type of evidence, whether fact or opinion, was the key factor in determining to whom rule 53.03 applied - "In my opinion, participant experts and non-party experts may give opinion evidence without complying with rule 53.03" - In the end result, the Court concluded that the trial judge in Westerhof erred in excluding the evidence of several witnesses - For that reason, the Court ordered a new trial - See paragraphs 13 and 14.

Evidence - Topic 7000.3

Opinion evidence - Expert evidence - General - Opinion evidence - What constitutes - The Ontario Court of Appeal discussed the 2010 amendments to the Rules of Civil Procedure relating to expert witnesses - See paragraphs 30 to 37.

Evidence - Topic 7000.3

Opinion evidence - Expert evidence - General - Opinion evidence - What constitutes - Rule 53.03 of Ontario's Rules of Civil Procedure set out the requirements for introducing the evidence of expert witnesses at trial - The Ontario Court of Appeal disagreed with the Divisional Court's conclusion that the type of evidence, whether fact or opinion, was the key factor in determining to whom rule 53.03 applied - "Instead, I conclude 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 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. ... [T]he term 'fact witness' does not make clear whether the witness's evidence must relate solely to their observations of the underlying facts or whether they may give opinion evidence admissible for its truth. I have therefore referred to such witnesses as 'participant experts'. Similarly, I conclude that rule 53.03 does not apply to the opinion evidence of a non-party expert where the non-party expert has formed a relevant opinion based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation." - See paragraphs 59 to 62.

Evidence - Topic 7000.3

Opinion evidence - Expert evidence - General - Opinion evidence - What constitutes - The Ontario Court of Appeal held that the Divisional Court erred in concluding that rule 53.03 applied to "participant experts" and "non-party experts" who offered opinion evidence - "First, in its reasons, the Divisional Court made no reference to pre-2010 jurisprudence supporting the conclusion that, prior to the 2010 amendments to the Rules, participant experts were entitled to give opinion evidence arising from their observation of or participation in events for the truth of its contents without complying with the former rule 53.03. ... [T]he Divisional Court's failure to refer to the pre-2010 jurisprudence was a significant oversight. ... I am not aware of any basis for concluding that the pre-2010 jurisprudence did not continue to apply following the 2010 amendments to the Rules relating to expert witnesses. Second, apart from [the decision at issue], no cases have been brought to our attention that support the view that participant experts are obliged to comply with rule 53.03 when giving evidence concerning treatment opinions. ... Third, I see nothing in the Osborne Report [Report from the Civil Justice Reform Project: Summary of Findings and Recommendations (2007)] that indicates an intention to address participant experts or non-party experts. ... Fourth, the text of the 2010 amendments supports the view that rule 53.03 does not apply to participant experts or non-party experts in several ways. ... [R]ule 4.1.01, rule 53.03 and Form 53 are a comprehensive framework addressing a specific class of expert witnesses and expert reports. ... Moreover, the conclusion that rule 53.03 applies only to experts engaged by a party to form an opinion for the purpose of the litigation reflects the prior jurisprudence and practice. ... Had the Civil Rules Committee intended to make a change to the jurisprudential status quo, I am confident it would have made that intention clear. Fifth, I am not persuaded that disclosure problems exist in relation to the opinions of participant experts and non-party experts requiring that they comply with rule 53.03. ... Sixth, ... [r]equiring participant witnesses and non-party experts to comply with rule 53.03 can only add to the cost of the litigation, create the possibility of delay ... and add unnecessarily to the workload of persons not expecting to have to write rule 53.03-compliant reports ..." - See paragraphs 65 to 86.

Evidence - Topic 7000.3

Opinion evidence - Expert evidence - General - Opinion evidence - What constitutes - The Ontario Court of Appeal disagreed with the Divisional Court's conclusion in Westerhof v. Gee Estate that the type of evidence, whether fact or opinion, was the key factor in determining to whom rule 53.03 applied - Based on the Court of Appeal's conclusions concerning to whom rule 53.03 applied, the Court agreed that the trial judge erred in holding as a general matter that the various medical practitioners who had treated or assessed Westerhof could not give opinion evidence because they had not complied with rule 53.03 - Nonetheless, the trial judge did not err in excluding all of the evidence that he excluded - The Court addressed each of the impugned rulings in turn - In the end result, the Court ordered a new trial - The trial judge's error in applying rule 53.03 resulted in the exclusion of important evidence tendered by Westerhof that could reasonably have affected the outcome of the trial - See paragraphs 87 to 147.

Evidence - Topic 7000.3

Opinion evidence - Expert evidence - General - Opinion evidence - What constitutes - The trial judge permitted several medical practitioners who had treated the plaintiff (McCallum) to give opinion evidence concerning McCallum's future employment prospects and future treatment needs without complying with rule 53.03 of the Rules of Civil Procedure (Ont.) - The trial judge concluded that because those witnesses were treating medical practitioners, they could give opinion evidence without complying with rule 53.03 - The jury awarded damages totalling $787,275 - The defendant appealed - He submitted that the trial judge erred by allowing treating medical practitioners who had not complied with rule 53.03 to give "an avalanche" of opinion evidence going beyond the scope of their expertise and that did not arise directly from treatment of their patient - The Ontario Court of Appeal rejected that submission - "[I]t may have been open to the trial judge, in the exercise of his gatekeeper function, to exclude at least some of the impugned evidence. Nonetheless, I am not persuaded that he erred in failing to do so. ... [T]he opinions concerning ability to return to work were not complex vocational opinions of the kind one would expect from a rule 53.03 expert. Rather, they were opinions formed by treating practitioners in the course of their treatment, reflecting the treating practitioners' assessment of the impact of Mr. McCallum's presenting condition on his ability to return to work. There is no suggestion that any of these practitioners were litigation experts in disguise, i.e. practitioners to whom Mr. McCallum was referred to obtain additional evidence for the purposes of the litigation. In all the circumstances, I am not persuaded that permitting the evidence of these witnesses was unfair." - See paragraphs 148 to 174.

Evidence - Topic 7003

Opinion evidence - Expert evidence - General - Procedural prerequisites to admission of - [See all Evidence - Topic 7000.3 ].

Practice - Topic 6

General principles and definitions - Application of practice rules - [See third Evidence - Topic 7000.3 ].

Practice - Topic 5191

Juries and jury trials - Charge to jury - Failure to object to - The Ontario Court of Appeal stated that "[i]n recent years, it has become a common practice in Ontario for trial judges to distribute copies of their jury instructions to counsel in advance of delivering them to the jury. Counsel who receive a copy of such jury instructions have an obligation to the court to review them before the charge is delivered. Counsel who fail to review the instructions and make prompt objections in advance of their delivery to the jury do so at their peril." - See paragraph 180.

Practice - Topic 5191

Juries and jury trials - Charge to jury - Failure to object to - The trial judge permitted several medical practitioners who had treated the plaintiff (McCallum) to give opinion evidence concerning McCallum's future employment prospects and future treatment needs without complying with Civil Procedure Rule 53.03 (Ont.) - The trial judge concluded that because those witnesses were treating medical practitioners, they could give opinion evidence without complying with rule 53.03 - The jury awarded McCallum damages totalling $787,275 - The defendant (Baker) appealed - He submitted that the trial judge's jury instructions were unbalanced and failed to adequately summarize for the jury his overriding theory, and the evidence that supported it, that many of McCallum's complaints were being caused by the medications he was taking and that McCallum had not taken adequate steps to improve his condition - The Ontario Court of Appeal rejected that submission - Baker's counsel had a copy of the trial judge's jury instructions on the evening before the trial judge delivered his charge to the jury - Nonetheless, he did not raise the objection now advanced on appeal until after the trial judge had completed his instructions to the jury - "We see no reason not to treat the absence of a timely objection in the same fashion as we would treat a failure to object at trial" - The trial judge read out Baker's position statement verbatim as part of his jury instructions - When reviewing each head of damages in his jury instructions, the trial judge reviewed the defence position and the reasons for it - See paragraphs 176 to 183.

Practice - Topic 5193.1

Juries and jury trials - Charge to jury - Respecting causation - [See second Practice - Topic 5191 ].

Practice - Topic 9226

Appeals - New trials - Admissible evidence rejected or overlooked - [See fifth Evidence - Topic 7000.3 ].

Practice - Topic 9280

Appeals - Appeal from jury verdict - Review of jury charge - [See second Practice - Topic 5191 ].

Cases Noticed:

Moore v. Getahun et al. (2015), 329 O.A.C. 363; 2015 ONCA 55, refd to. [para. 32].

McNeill v. Filthaut, [2011] O.T.C. Uned. 2165; 2011 ONSC 2165, refd to. [para. 51].

Kusnierz v. Economical Mutual Insurance Co., [2010] O.T.C. Uned. 5749; 104 O.R.(3d) 113; 2010 ONSC 5749, revd. on other grounds (2011), 288 O.A.C. 104; 108 O.R.(3d) 272; 2011 ONCA 823, refd to. [para. 51].

Beasley v. Barrand, [2010] O.T.C. Uned. 2095; 2010 ONSC 2095, refd to. [para. 53].

Marchand v. Public General Hospital Society of Chatham et al. (2001), 138 O.A.C. 201; 51 O.R.(3d) 97 (C.A.), consd. [para. 67].

Burgess v. Wu, [2003] O.T.C. 1047; 68 O.R.(3d) 710 (Sup. Ct.), refd to. [para. 72].

Continental Roofing Ltd. v. J.J.'s Hospitality Ltd., [2012] O.T.C. Uned. 1751; 12 C.L.R.(4th) 90; 2012 ONSC 1751, refd to. [para. 75].

Robb Estate et al. v. Canadian Red Cross Society et al. (2001), 152 O.A.C. 60 (C.A.), refd to. [para. 103].

McGregor v. Crossland, 1994 CanLII 388 (Ont. C.A.), refd to. [para. 103].

Beldycki Estate v. Jaipargas et al. (2012), 295 O.A.C. 100; 2012 ONCA 537, refd to. [para. 122].

Khan v. College of Physicians and Surgeons (Ont.) et al. (1992), 57 O.A.C. 115; 9 O.R.(3d) 641 (C.A.), refd to. [para. 147].

Marshall v. Watson Wyatt & Co. (2002), 155 O.A.C. 103; 57 O.R.(3d) 813 (C.A.), refd to. [para. 177].

Statutes Noticed:

Civil Procedure Rules (Ont.) - see Rules of Civil Procedure (Ont.).

Courts of Justice Act, R.S.O. c. C-43, sect. 134(1)(b), sect. 134(6) [para. 121].

Rules of Civil Procedure (Ont.), rule 4.1.01(1) [para. 35]; rule 53.03(2.1) [para. 36].

Authors and Works Noticed:

Ontario, Ministry of the Attorney General, Report from the Civil Justice Reform Project: Summary of Findings and Recommendations (2007) (Osborne Report), pp. 71, 80 to 84 [para. 33].

Osborne Report - see Ontario, Ministry of the Attorney General, Report from the Civil Justice Reform Project: Summary of Findings and Recommendations.

Counsel:

Jane Poproski, Lou Ferro and Robert Zigler, for the appellant, Jeremy Westerhof;

Kieran C. Dickson and Kenneth J. Raddatz, for the respondent, the Estate of William Gee;

Donald Rollo and David Visschedyk, for the appellant, James Baker;

Paul J. Pape and Joanna Nairn, for the respondent, Daniel McCallum;

Richard Halpern and Brian Cameron, for the intervener, the Ontario Trial Lawyers Association;

William D. Black, Jerome R. Morse and John J. Morris, for the intervener, The Holland Access to Justice in Medical Malpractice Group;

John A. Olah and Stephen Libin, for the intervener, the Canadian Defence Lawyers Association;

Linda R. Rothstein and Jean-Claude Killey, for the intervener, The Advocates' Society.

These appeals were heard on September 22, 23, 24 and 26, 2014, before Laskin, Sharpe and Simmons, JJ.A., of the Ontario Court of Appeal. In reasons written by Simmons, J.A., the Court delivered the following judgment, released on March 26, 2015.