Hired Guns or Participating Witnesses? The Westerhof Appeal Shapes Expert Report Rules

In Westerhof v Gee Estate, 2015 ONCA 206 [Westerhof], the Court of Appeal for Ontario (“ONCA”) determined that experts who give opinions based on their participation in the events of a proceeding (a “participant expert”) may not need to comply with Rule 53.03 of the Rules of Civil Procedure, RRO 1990, Reg 194.

Rule 53.03 requires that experts provide a detailed report with a signed acknowledgement. Compliance with this Rule normally extends to all experts “engaged by or on behalf of a party.” However, this wording indicates that such a rule only applies to “litigation experts.” While there are compelling policy reasons for litigation experts to comply with Rule 53.03, these reasons do not extend to participant experts and other non-party experts. As a result, the Court of Appeal concluded that compliance with the rule is dependent on the type of expert, and not on the type of the evidence as claimed by the Divisional Court.

Facts

In Westerhof, Simmons J for the court heard two appeals, both stemming from similar claims. As the facts are similar, and Justice Simmons’ reasoning applies to both, this comment will deal only with the Westerhof appeal.

The basis of this case arose from injuries that the appellant, Westerhof, sustained in a car accident in 2004. Mr. Westerhof was in the passenger seat of a car driven by his friend when the car was hit in the rear, so hard that the trunk was pushed forward into the back of the car. Westerhof, though wearing a seat belt, was thrown back in his seat.

Westerhof claims that since the accident he has suffered post-traumatic headaches, back pain, sleep disturbances, depression and anxiety, and a labral tear in his left hip joint. The labral hip tear was surgically repaired in 2009, but Westerhof claims there is still restricted movement and chronic pain.

At the time of the accident, Westerhof was 25 years old. He had a job as a machine operator in a factory that manufactured plastic flower pots, earning about $27,000 a year. His job required running and heavy lifting. Westerhof’s injuries soon made this job impossible – he left in 2006, two years after the accident. As of the trial, Westerhof was a kitchen supervisor, earning $12.50 an hour. He claims this was “substantially less” than what he earned from his old job (Westerhof, para 29).

Trial and Divisional Court Rulings

At trial, defence argued that Westerhof’s back and hip problems could not be linked to the accident as they did not manifest themselves immediately. They also dismissed his psychological injuries as being caused by familial strife.

Westerhof sought to call evidence from nine medical witnesses, in order to support his claim that the injuries were directly caused by the accident in 2004. Only two of the witnesses were allowed to give the entirety of their evidence – a neurologist who performed EMG testing on Westerhof (who did comply with rule 53.03) and the orthopedic surgeon who performed Mr. Westerhof’s hip surgery in 2009 (who did not comply). The trial judge ordered two MRI reports relating to Mr. Westerhof’s labral tear to be redacted, and excluded the diagnoses and prognoses of a number of specialists who indicated that Mr. Westerhof’s injuries could in fact be causally related to the accident.

As a result, the trial judge found that Mr. Westerhof’s hip complaints could not be causally linked to the accident, and that the back complaints – while possibly aggravated by the accident – were likely congenital, and (somewhat contradictorily) neither permanent nor serious.

The Divisional Court upheld the trial judge’s ruling. They argued that the “important distinction is not in the role of involvement of the witness, but in the type of evidence sought to be admitted” (11). In other words, it does not matter if the expert is hired by a party to the proceeding to give an opinion, or was actually involved in the events in question. What matters is whether it is opinion evidence or factual evidence. If it is opinion evidence, according to the Divisional Court, then it must comply with Rule 53.03. As such, the trial judge excluded the evidence of Mr. Westerhof’s experts for non-compliance with this Rule.

Court of Appeal Ruling

The Court of Appeal fundamentally disagreed with the Divisional Court’s distinction that compliance with the rule should be based on the type of evidence. Simmons J argued that it should instead be based on the type of expert. He defined a new type of expert, the “participant expert,” as an example of an expert who could be exempt from this rule. The participant expert, as a party who has not been engaged by or on behalf of a party to the litigation, does not have to comply with Rule 53.03 where:

1. Their opinion is based on their observation of or participation in the events at hand; and
2. The opinion was formed in the “ordinary exercise of his or her skill, knowledge, training and experience” during the time in which they observed or participated in the events.

Rule 53.03 does not apply to this type of expert in these circumstances, nor to non-party experts where that 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” (62). Simmons J did note, however, that the participant experts and non-party experts must comply with rule 53.03 should the scope of their opinion extend beyond the boundaries laid out above.

The Court’s Reasoning

Expert evidence serves an important function in assisting courts with specialized issues of fact. However, the use of experts is often costly and time-consuming, leading to delays in proceedings. The Honourable Coulter Osborne’s recommendations in the Civil Justice Reform Project: Summary of Findings and Recommendations (Toronto: Ontario Ministry of the Attorney General, 2007) proved enlightening. In addition to the costs and delays, the report also highlighted complaints that “many experts are no more than hired guns who tailor the reports and evidence to suit the client’s needs” (para 33). Following the recommendations of the report, the Rules were amended in 2010 to standardize mandatory requirements for expert reports (among other things) in an attempt to expedite and simplify the expert’s role in court proceedings.

One of these newly amended rules was none other than Rule 53.03(2.1), which deals with the content of expert reports. It requires the inclusion of information like the nature of the opinion being sought and how it relates to the issues in the proceeding, the expert’s opinion on each issue, and reasons for those opinions. In addition, the expert report needs to include a signed acknowledgment of the expert’s duty (Form 53). Rule 4.1.01 was also added as per these recommendations – this rule states that the overriding duty of every expert engaged by or on behalf of a party to provide opinion evidence must provide that evidence in a manner which is “fair, objective and non-partisan and within the expert’s area of expertise” (para 35).

The Court of Appeal decided the Westerhof appeal with the policy behind these amendments in mind. Justice Simmons outlined six reasons where the Divisional Court erred in their reasoning.

First, their decision did not comply with case-law that was decided prior to the 2010 amendments. This case-law supported the conclusion that rule 53.03 does not apply to participant experts. The 2010 amendments “codified and reinforced…basic common law principles” rather than created any new duties, so there was no reason not to apply this pre-2010 jurisprudence (para 73).

Second, no decision has held that treating physicians must comply with rule 53.03.

Third, the Osborne Report does not address participant experts or non-party experts. The recommendations are meant to apply to litigation experts in order to prevent the “hired-gun” concerns, which do not apply to participant experts and non-party experts. The policy reasons behind the Osborne Report are not being harmed by excluding these types of experts.

Fourth, the 2010 amendments themselves support the view, particularly in the wording of rule 4.1.01 which specifies that 53.03 applies to an expert who is “engaged by or on behalf of a party to provide [opinion] evidence in relation to the proceeding” (para 80). There is no basis to assume this rule applies to any other kind of expert. In fact, applying it to other kinds of experts would go against prior jurisprudence and practice.

Fifth, concerns that non-compliance with Rule 53.03 will lead to disclosure problems are unwarranted – these experts will have prepared documents of their opinions contemporaneously with their involvement, which can be obtained as part of the discovery process. In the alternative that such summaries have not been prepared, a party may still seek disclosure of any related opinions notes and records.

Lastly, the Court of Appeal highlighted that the Divisional Court’s ruling will actually cause the problems that the Osborne report and the amended rule 53.03 itself sought to alleviate. Requiring participant experts and non-party experts to comply with this rule in providing the required report will only add to the cost of litigation, potentially delay proceedings in an attempt to obtain reports that are compliant, and add to the workload of experts who might not expect to write rule 53.03 compliant reports at the time of their participation (e.g., emergency room physicians, surgeons).

In conclusion, the Court of Appeal found that excluding the evidence brought forward by a number of Westerhof’s participant experts could “reasonably have affected the outcome of the trial” (para 127), particularly concerning the cause of Mr. Westerhof’s hip problems. The court highlighted the key issue as not being the type of evidence, but rather the type of expert. The court allowed Westerhof’s appeal, ordered a new trial, and highlighted compelling policy reasons for concluding the way they did.