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Westerhof v. Gee Estate [2015] ONCA 206

Decided March 26, 2015

“All witnesses with special skill or training and who observed or were involved in the underlying facts of the case are permitted to proffer evidence as witnesses at trial without signing the Rule 53 Compliance Form.”

Ontario Court of Appeal

The Plaintiff was injured in a 2004 motor vehicle accident, following which he was treated by a number of health professionals ranging from his family doctor to chiropractors and kinesiologists. At trial, the Plaintiff proposed to call a number of treating health professionals as witnesses. The trial judge excluded or restricted much of this evidence, ruling that medical witnesses who had treated or assessed the Plaintiff could not give opinion evidence concerning their diagnosis or prognosis unless they had complied with Rule 53.03.

The Court of Appeal confirmed that Rule 53.03 applies only to “expert witnesses engaged by or on behalf of a party to provide opinion evidence in relation to a proceeding.” It was held that “participant experts” (i.e., witnesses with special skill, knowledge, training or experience and who had observed or were involved in the underlying facts of the case), are permitted to give opinion evidence without compliance where, (1) the opinion to be given is based on the witness’ observation of or participation in the events at issue; and, (2) 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. “Non-party experts” are permitted to give opinion evidence without complying with Rule 53.03 where the witness 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.

Submitted to the FDCC by David A. Bertschi, a founding partner at Bertschi Orth Solicitors and Barristers LLP.

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