COURT OF APPEAL
    FOR ONTARIO

CITATION: Westerhof v. Gee Estate, 2015 ONCA 206

DATE: 20150326

DOCKET: C56514 and C58021

Laskin, Sharpe and Simmons JJ.A.

BETWEEN

Jeremy Westerhof

Plaintiff (Appellant)

and

The Estate of William Gee
and Kingsway
    General Insurance

Defendant (
Respondent
)

and

BETWEEN

Daniel McCallum

Plaintiff
    (Respondent)

and

James Baker

Defendant
    (Appellant)

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

Heard: September 22, 23, 24, 26, 2014

On appeal from the order of the Divisional Court
    (Justices P. Theodore Matlow, David Aston and Thomas R. Lederer) dated June 20,
    2013 with reasons reported at 2013 ONSC 2093, 310 O.A.C. 335, affirming the
    judgment of Justice David S. Crane of the Superior Court of Justice dated
    October 26, 2011, following a decision by a jury; and on appeal from the
    judgment of Justice Gregory M. Mulligan of the Superior Court of Justice dated
    December 20, 2012, sitting with a jury.

Simmons
    J.A.
:

A.

introduction

[1]

Rule 53.03 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,
    sets out the requirements for introducing the evidence of expert witnesses at
    trial. These appeals, which were heard together, raise related issues about to
    whom 53.03 applies.

[2]

Both cases were tried following the 2010 amendments to the
Rules
,
    which were aimed at ensuring the neutrality and expertise of expert witnesses, as
    well as adequate disclosure of the basis for an experts opinion.

[3]

Those amendments set out the overriding duty of an expert engaged by or
    on behalf of a party to provide opinion evidence in relation to a proceeding
    that is fair, neutral and non-partisan and within the experts area of
    expertise: rule 4.1.01.

[4]

The 2010 amendments also specified certain information relating to an
    experts opinion and expertise that must be included in an experts report and
    required that the expert sign an acknowledgement of his or her duty, which
    identifies the party by or on behalf of whom the expert was engaged: rule
    53.03(2.1), Form 53.

[5]

Both appeals arise 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, and the issues at trial
    related to whether the accidents caused the plaintiffs injuries and the
    quantum of damages.

[6]

The

Westerhof

appeal raises the question of whether rule
    53.03 applies only to experts described in rule 4.1.01 and Form 53  experts
    engaged by or on behalf of a party to provide [opinion] evidence in relation
    to a proceeding (referred to in these reasons as litigation experts)  or
    whether it applies more broadly to all witnesses with special expertise who
    give opinion evidence. This broader group of witnesses would include, for
    example, treating physicians, who form opinions based on their participation in
    the underlying events (referred to in these reasons as participant experts) rather
    than because they were engaged by a party to the litigation to form an opinion.
    It would also include experts retained by a non-party to the litigation (for
    example, statutory accident benefits (SABS) insurers), who form opinions
    based on personal observations or examinations relating to the subject matter
    of the litigation for a purpose other than the litigation (referred to in these
    reasons as non-party experts).

[7]

At the
Westerhof

trial, the trial judge ruled
    inadmissible opinion evidence concerning history, diagnosis and prognosis from
    various medical practitioners who were either participant experts or non-party
    experts. The trial judge found that these witnesses were required to comply
    with rule 53.03 and had not done so. In addition, he ruled that a neurologist,
    who had complied with rule 53.03, could not refer to the diagnoses made by the
    witnesses who had not complied with rule 53.03 and that Mr. Westerhofs family doctors
    clinical notes and records could not be filed as an exhibit.

[8]

The trial judge also ruled inadmissible the evidence of a road safety
    consultant/driving therapist intern who had assessed Mr. Westerhof at the
    request of Mr. Westerhofs treating psychiatrist, holding that this witness was
    not qualified to give the opinion that would arise from his evidence.

[9]

Although the jury awarded Mr. Westerhof $22,000 for general damages and
    for $13,000 past loss of income, the trial judge dismissed his action. The trial
    judge found that Mr. Westerhofs claim for non-pecuniary damages did not meet
    the threshold prescribed by s. 267.5(5) of the
Insurance Act
, R.S.O.
    1990, c. I.8. In addition, he found the amount awarded for past loss of income
    was less than the collateral benefits Mr. Westerhof had already received.

[10]

On appeal
    to the Divisional Court, Mr. 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 and
    non-party experts. Mr. Westerhof argued that the latter two classes of
    witnesses are not caught by rule 53.03.

[11]

The
    Divisional Court disagreed. In dismissing Mr. Westerhofs 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:
    at para. 21. If the evidence at issue is opinion evidence, then compliance with
    rule 53.03 is required; if the evidence at issue is factual evidence, then
    compliance with rule 53.03 is not required.

[12]

On appeal
    to this court with leave, Mr. Westerhof reiterates his argument in the
    Divisional Court: rule 53.03 applies solely to litigation experts  expert
    witnesses engaged by or on behalf of a party to provide [opinion] evidence in
    relation to a proceeding.

[13]

For
    reasons that I will explain, I do not agree with the Divisional Courts
    conclusion that the type of evidence  whether fact or opinion  is the key
    factor in determining to whom rule 53.03 applies.

[14]

In my
    opinion, participant experts and non-party experts may give opinion evidence
    without complying with rule 53.03. Accordingly, I conclude that the trial judge
    in
Westerhof
erred in excluding the evidence of several witnesses. For
    that reason, I would order a new trial.

[15]

At the
McCallum

trial, which took place prior to the Divisional Courts decision in
Westerhof
,
    the trial judge permitted several medical practitioners who had treated Mr.
    McCallum to give opinion evidence concerning Mr. McCallums future employment
    prospects and future treatment needs without complying with rule 53.03. The
    trial judge concluded that because these witnesses were treating medical practitioners,
    they could give opinion evidence without complying with rule 53.03.

[16]

The jury
    awarded Mr. McCallum damages totalling $787,275.00. Mr. Baker appeals from that
    award. In oral argument before this court, he accepted that treating physicians
    may give opinion evidence directly related to their treatment of a patient,
    such as a working diagnosis and prognosis.

[17]

Nonetheless,
    he submits 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. He also submits that the trial
    judges jury instructions were unbalanced and failed to properly set out the
    defence position.

[18]

For
    reasons that I will explain, I would not accept these submissions, and I would
    dismiss the
McCallum
appeal.

[19]

I will
    begin my reasons by addressing the
Westerhof

appeal and the
    question of to whom rule 53.03 applies. I will review the factual background of
    the case, the Divisional Courts decision and then turn to my analysis of the
    rule 53.03 issue. I will then address the more specific questions raised by each
    appeal.

B.

Westerhof v. gee estate
: to whom does rule 53.03 apply?

(1)

Factual Background

(a)

The accident

[20]

Mr.
    Westerhof was injured in a car accident on the evening of April 22, 2004.  A
    friend picked Mr. Westerhof up from his home in Hamilton, and the two young men
    went out for a coffee. Mr. Westerhof rode in the front passenger seat of his
    friends 1987 Pontiac Grand Am. On their way back to Mr. Westerhofs house, they
    drove along Stone Church Road at the speed limit, 50 km/hr. The accident
    happened just after Mr. Westerhof spotted a single headlight in the side mirror
    of his friends car. Their car was hit hard from the rear suddenly and with
    such force that the trunk was pushed forward into the back of the Grand Am. Based
    on the distance their car travelled following the impact, Mr. Westerhof
    estimated that the car that hit them was travelling between 100 and 110 km/hr.

[21]

Mr.
    Westerhof was wearing a seatbelt, but his friends car did not have air bags.
    The force of the impact threw him back in his seat. He does not recall if his
    body struck the interior of the car. He got out of the car and leaned against a
    post. Eventually, his friends mother drove him home.

(b)

Mr. Westerhofs claim

[22]

Mr.
    Westerhof claims that he suffered serious permanent impairments of important
    physical, mental and psychological functions as a result of the accident,
    including: post-traumatic headaches; post-traumatic mechanical low back pain; numbness
    and tingling in both hands (bilateral radiculopathy); post-traumatic sleep
    disturbances; a labral tear at the left hip joint; depression; anxiety when
    driving or riding in a car; and chronic pain. The labral tear was diagnosed in
    2008 and surgically repaired in 2009. However, Mr. Westerhof claims that he still
    has restricted movement of his left hip and chronic pain as a result of his
    injuries.

[23]

Mr.
    Westerhof described himself as shaky and in shock when he got home after the
    accident. He testified that he began to experience other symptoms the next day.
    His neck and shoulder were the prominent issues, but he also experienced pain
    in his lower back, left knee, groin and left leg.

[24]

According
    to Mr. Westerhofs family doctor, Dr. Black, Mr. Westerhof attended his office the
    day after the accident and reported neck pain, left shoulder pain, left knee
    pain and numbness in the fingers of his left hand. Mr. Westerhof reported
    similar complaints to a chiropractor, Dr. Ramelli, whom he began seeing four
    days after the accident, on April 26, 2004.

[25]

Eleven
    days after the accident, on May 3, 2004, Mr. Westerhof told Dr. Black he had
    low back pain, mainly on the left side with radiation down his left leg to his
    foot, and that this pain had developed within three or four days of the
    accident. Mr. Westerhof first reported low back pain to Dr. Ramelli fifteen
    days after the accident, on May 7, 2004. Dr. Ramelli concluded that Mr.
    Westerhof had tightness in the low back and pelvic area. In late May, Mr.
    Westerhof reported to Dr. Black difficulties with sleep, nightmares about the
    accident and anxiety, particularly about riding in a car. By early July, he was
    reporting headaches associated with nausea and vomiting.

[26]

Mr.
    Westerhof was 25 years old at the time of the accident and otherwise in good
    health. He worked full-time as a thermoform machine operator at ITML
    Horticultural Products, a company that manufactured plastic flower pots. In 2003,
    the year before the accident, he earned $27,000.

[27]

Following
    the accident, Mr. Westerhof remained off work because of his injuries for about
    five months, until September 13, 2004. His work required running and heavy
    lifting  roll bars weighing between 70 and 90 lbs and boxes weighing 50 lbs.
    Because of the pain he was experiencing, particularly in his left leg, Mr.
    Westerhof found it more and more difficult to cope. He found himself limping
    and eventually walked using a cane. He finally left his job at ITML on February
    2, 2006. In 2005, he earned $33,000.

[28]

After
    leaving his job, Mr. Westerhof felt depressed and started cutting himself.

[29]

Mr.
    Westerhof remained off work until late 2008. He took some cooking courses at
    Mohawk College before returning to work. In late 2008, he got a part-time job
    as a short order cook at Montanas Cookhouse. He continued working at Montanas
    until his hip surgery in June 2009 but returned to Montanas about three to
    four months after the surgery. He was off work again because of pain for three
    to four months in 2010, but returned to Montanas in November. About three to
    four weeks before the trial began on October 11, 2011, he became a kitchen
    supervisor, earning $12.50 per hour  an amount he claims is substantially less
    than what he could have earned had he been able to remain as a thermoform
    machine operator.

(c)

The 2010 amendments to the
Rules
relating to expert witnesses

[30]

Prior to
    the 2010 amendments to the
Rules
relating to expert witnesses, rule
    53.03 consisted primarily of procedural requirements and provided limited
    direction concerning the substance of an experts report.

[31]

In
    essence, pre-2010, rule 53.03 required a party to provide a signed report from
    an expert witness setting out the experts name, address and qualifications
    and the substance of his or her proposed testimony within specified time
    frames.

[32]

As Sharpe
    J.A. noted in
Moore v. Getahun
, 2015 ONCA 55, [2015] O.J. No. 398, in
    2010, significant changes were made to the
Rules

relating to
    expert witnesses following the recommendations of the Honourable Coulter
    Osborne in his review of the civil justice system,
Civil Justice Reform
    Project: Summary of Findings & Recommendations
(Toronto: Ontario
    Ministry of the Attorney General, 2007).

[33]

Mr.
    Osbornes report highlighted, at page 71, the common complaint that too many
    experts are no more than hired guns who tailor the reports and evidence to suit
    the clients needs. At pages 80-84 of his report, Mr. Osborne also highlighted
    the need for adequate disclosure of the basis for an experts opinion.

[34]

Two
    significant recommendations of the Osborne Report were subsequently adopted
    through amendments to the
Rules
, which came into effect on January 1,
    2010.

[35]

First,
    rule 4.1.01 was added to the
Rules
. It sets out the overriding duty of
    every expert engaged by or on behalf of a party to provide opinion evidence
    that is fair, objective and non-partisan and within the experts area of expertise.
    Significantly, the introductory paragraph to rule 4.1.01(1) refers specifically
    to the duty of experts engaged by or on behalf of a party:

4.1.01(1) It is the duty of every
expert engaged by or on
    behalf of a party to provide evidence in relation to a proceeding under these
    rules
. [Emphasis added.]

[36]

Second,
    rule 53.03(2.1) was added. It specifies the information to be included in an
    experts report and requires that the expert sign an acknowledgment of the
    experts duty. Some of the required information relates to the experts
    retainer to give evidence in relation to the proceeding:

53.03(2.1) A report provided for the purposes of subrule (1) or
    (2) shall contain the following information:

1. The experts name, address and area of expertise.

2. The experts qualifications and employment and educational
    experiences in his or her area of expertise.

3.
The instructions provided to the expert in relation to
    the proceeding
.

4.
The nature of the opinion being sought and each issue
    in the proceeding to which the opinion relates
.

5. The experts opinion respecting each issue and, where there
    is a range of opinions given, a summary of the range and the reasons for the
    experts own opinion within that range.

6. The experts reasons for his or her opinion, including,

i. a description of the factual assumptions on which the
    opinion is based,

ii. a description of any research conducted by the expert
    that led him or her to form the opinion, and

iii. a list of every document, if any, relied on by the
    expert in forming the opinion.

7. An acknowledgement of experts duty (Form 53) signed by the
    expert [Emphasis added.]

[37]

The
    acknowledgment mandated by rule 53.03(2.1)7 is set out in Form 53 and reads, in
    part, as follows:

ACKNOWLEDGMENT OF
    EXPERTS DUTY

1.

My name is
    .......................................................
(
name
)
. I live at
    .............................................
(
city
)
, in the ............................................
(
province/state
)
of ...........................................
(
name
    of province/state
)
.

2.

I have been engaged by or on behalf of
.
(name of party/parties) to provide evidence in
    relation to the above-noted court proceeding
.
[Emphasis added.]
[1]

(d)

The issues at trial

[38]

The major
    issues at the Westerhof trial related to causation and damages. Mr. Westerhof
    claimed that all of his injuries, and his resulting loss of future economic
    opportunity, were related to the motor vehicle accident.

[39]

The
    defence acknowledged that Mr. Westerhof suffered upper body soft tissue
    injuries in the accident. However, the defence maintained that those injuries
    resolved well before trial. Further, the defence claimed that Mr. Westerhofs
    remaining problems had other causes. According to the defence, Mr. Westerhofs
    hip and lower back problems were both caused by underlying conditions (hip: dysplasia
    (abnormality) of the femoral head and neck and femoral acetabular impingement;
    back: spondylosis and spondylolisthesis
[2]
).
    As his back and hip problems did not manifest themselves immediately after the accident,
    the defence claimed they were not related to it. Further, the defence claimed
    that Mr. Westerhofs psychological problems were caused largely by his non-accident
    related physical symptoms and domestic difficulties he was having with his
    spouse.

(e)

The impugned evidentiary rulings

[40]

Mr.
    Westerhof proposed to call evidence from nine medical witnesses at trial.
    According to him, only two of these witnesses were allowed to give their
    evidence in its entirety. Those witnesses were Dr. McComas, a neurologist
    engaged by counsel to perform EMG testing on Mr. Westerhof in August 2004 (who complied
    with rule 53.03); and Dr. Adili, the orthopedic surgeon who performed hip surgery
    on Mr. Westerhof in June 2009 (who did not comply with rule 53.03).

[41]

From the
    outset of the trial, the trial judge ruled that the medical witnesses who
    treated or assessed Mr. Westerhof but did not comply with rule 53.03 would not
    be entitled to give opinion evidence concerning their diagnosis or prognosis,
    even though they had not been retained for the purpose of the litigation. Those
    witnesses were also prevented from giving evidence of the history they had
    taken from Mr. Westerhof. These witnesses included: Dr. Ramelli, a treating
    chiropractor; Dr. Bartolucci, a treating psychiatrist; and Ms. Murray and Ms.
    Gross, a kinesiologist and a physiotherapist respectively, who conducted an
    assessment for Mr. Westerhofs SABS insurer.
[3]

The trial judge also ordered redactions to two MRI
    reports of statements relating to the cause of Mr. Westerhofs labral tear. In
    addition, he ruled that Dr. Rathbone, a neurologist, who had complied with rule
    53.03, could not refer in his evidence to the opinions of the witnesses who had
    not complied with rule 53.03.

[42]

The trial
    judge also ruled that Mr. Westerhofs family doctors clinical notes and
    records could not be marked as an exhibit. Finally, he ruled that Mr. Husler, a
    road safety consultant/driving therapist intern who had conducted an in-vehicle
    assessment of Mr. Westerhof, could not testify.

[43]

Mr.
    Westerhof claims that the trial judge adopted an unduly narrow approach to rule
    53.03, which led him to exclude relevant, material and probative evidence. I will
    return to these rulings when I address the specific issues raised on the
    Westerhof appeal.

(f)

The jurys verdict

[44]

The jury
    awarded Mr. Westerhof general damages of $22,000 and damages of $13,000 for
    past loss of income from April 22, 2004 until the date of the verdict on
    October 24, 2011. They did not award damages for future loss of economic
    opportunity or earning capacity.

(g)

The trial judges ruling dismissing the action

[45]

As of the
    date of the accident, a claimant seeking to recover damages for non-pecuniary
    loss arising from a motor vehicle accident had to show either a permanent
    serious disfigurement or a permanent serious impairment of an important
    physical, mental or psychological function:
Insurance Act
,
s.
    267.5(5).

[46]

The trial
    judge found that Mr. Westerhofs claim for non-pecuniary damages did not meet
    this threshold. He concluded that, to have a chance of meeting the threshold,
    Mr. Westerhof would have to show that his hip complaints related to the motor
    vehicle accident, and that Mr. Westerhof had not met this burden.

[47]

Instead, the
    trial judge found that Mr. Westerhofs hip complaints and symptoms were not related
    to the motor vehicle accident, and that his upper body injuries had resolved
    long before trial. The trial judge also found that Mr. Westerhofs back
    complaints are congenital, although possibly aggravated by the motor vehicle
    accident. However, on balance, any back injuries arising from the motor vehicle
    accident were neither permanent nor serious. With respect to Mr. Westerhofs psychological
    symptoms, the trial judge concluded that they may have a pain component, but
    the pain related to the motor vehicle accident was not permanent.

[48]

It was
    undisputed that collateral benefits paid to Mr. Westerhof exceeded the jurys
    award for past loss of income.

[49]

In the circumstances,
    the trial judge dismissed Mr. Westerhofs action.

(2)

The Divisional
    Courts decision

[50]

The
    Divisional Court upheld the trial judges evidentiary rulings and dismissed Mr.
    Westerhofs appeal.

[51]

At the
    outset of its analysis, the Divisional Court reviewed various decisions, which had
    held that, at least in certain circumstances, medical practitioners retained by
    a non-party insurance company need not comply with the amended rule 53.03:

McNeil
    v. Filthaut
,
2011 ONSC 2165, [2011] O.J. No. 1863 (S.C.);
Slaight
    v. Phillips
(18 May 2010), Simcoe 109/07 (Ont. S.C.) and
Kusnierz v.
    The Economical Mutual Insurance Company
, 2010 ONSC 5749, 104 O.R. (3d)
    113, revd on other grounds, 2011 ONCA 823, 108 O.R. (3d) 272.

[52]

The
    Divisional Court rejected the conclusions in those cases, saying that they relied
    inappropriately on who the witnesses were (who retained them and for what
    purpose) rather than the nature of the evidence to be provided: at para. 14.

[53]

The
    Divisional Court then turned to
Beasley v. Barrand
, 2010 ONSC 2095,
    101 O.R. (3d) 452, leave to appeal to Div. Ct. refused, [2010] O.J. No. 6319 (Sup.
    Ct.), in which Moore J. disallowed the evidence of three medical practitioners
    retained by a non-party insurer because the practitioners had not complied with
    rule 53.03.

[54]

According
    to the Divisional Court, in
Beasley
, Moore J. focused on the nature
    and impact of the evidence, not the standing or involvement of the witnesses,
    and found there was no reason to distinguish between the three medical
    practitioners and other expert witnesses for the purposes of rule 53.03.

[55]

The Divisional
    Court concluded, at para. 21, that [t]he important distinction is not in the
    role or involvement of the witness, but in the type of evidence sought to be
    admitted. If it is opinion evidence, compliance with rule 53.03 is required; if
    it is factual evidence, it is not.

[56]

In
Beasley
,
Moore J. specifically noted that the three medical practitioners at issue were
    not treating physicians. Nonetheless, the Divisional Court stated at para. 23,
    [t]his does not suggest that, if they had been treating physicians, the three
    doctors would have been free to offer opinions without concern for rule 53.03.

[57]

Concerning
    treating professionals, the Divisional Court acknowledged that they are
    entitled to give factual evidence of their observations of a party and a
    description of the treatment provided without being qualified as experts and
    without complying with rule 53.03. However, when such witnesses [seek] to
    offer opinions as to the cause of an injury, its pathology or prognosis [then]
    the evidence enters into the area of expert opinion requiring compliance with
    rule 53.03: at para. 23.

[58]

The
    Divisional Court concluded that evidence of diagnosis and prognosis are
    opinions because they involve inferences from observed facts and may turn out
    to be either right or wrong. Thus, although a treating physician may give
    evidence of his or her diagnosis to explain the treatment provided, such
    evidence is not admissible for the truth of its contents. Rather, it is
    admissible only to understand the basis of the treatment provided.

(3)

Analysis: To Whom Does Rule 53.03
    Apply?

(a)

General
    principles

[59]

As I have
    said, I do not agree with the Divisional Courts conclusion that the type of
    evidence  whether fact or opinion  is the key factor in determining to whom
    rule 53.03 applies.

[60]

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 witnesss 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.

[61]

Such witnesses have sometimes been referred to as fact
    witnesses because their evidence is derived from their observations of or
    involvement in the underlying facts. Yet, describing such witnesses as fact
    witness risks confusion because the term fact witness does not make clear
    whether the witnesss 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.

[62]

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.

[63]

If
    participant experts or non-party experts also proffer opinion evidence
    extending beyond the limits I have described, they must comply with rule 53.03
    with respect to the portion of their opinions extending beyond those limits.

[64]

As with
    all evidence, and especially all opinion evidence, the court retains its gatekeeper
    function in relation to opinion evidence from participant experts and non-party
    experts. In exercising that function, a court could, if the evidence did not
    meet the test for admissibility, exclude all or part of the opinion evidence of
    a participant expert or non-party expert or rule that all or part of such
    evidence is not admissible for the truth of its contents. The court could also
    require that the participant expert or non-party expert comply with rule 53.03
    if the participant or non-party experts opinion went beyond the scope of an
    opinion formed in the course of treatment or observation for purposes other
    than the litigation.

(b)

Errors
    in the Divisional Courts analysis

[65]

In my
    view, the Divisional Court erred in concluding that rule 53.03 applies to
    participant experts and non-party experts who offer opinion evidence. I say
    this for several reasons.

[66]

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.

[67]

The
    leading pre-2010 case concerning the scope and application of rule 53.03 is
    this courts decision in
Marchand v. The Public General Hospital Society of
    Chatham

(2000), 51 O.R. (3d) 97. In

Marchand
, this
    court confirmed that treating physicians could testify about treatment opinions
    without complying with the former rule 53.03.

[68]

At para.
    120 of
Marchand
, this court held that a treating physician is called
    as a witness of fact, not as an expert witness, and therefore the former rule
    53.03 was not engaged:

Dr. Tithecott was not a "rule 53.03 witness". Dr.
    Tithecott was called as a witness of fact, not as an expert witness. Thus,
    insofar as Dr. Tithecott was testifying about the facts of his own involvement,
or the
opinions that went to the exercise of his judgment
, rule
    53.03 was not engaged. [Emphasis added.]

[69]

In
    describing Dr. Tithecott as a witness of fact, not as an expert witness, this
    court was not making a simple distinction between factual evidence and opinion
    evidence. This court said specifically that, insofar as Dr. Tithecott was
    testifying about the facts of his own involvement,
or the opinions that
    went to the exercise of his judgment
 (emphasis added), the former rule
    53.03 was not engaged.

[70]

Put
    another way, Dr. Tithecott, a treating physician, was permitted to testify
    about opinions that arose directly from his treatment of his patient, the
    plaintiff in the case. He was not required to comply with rule 53.03, and his
    opinion evidence was admitted for the truth of its contents. This was because
    he formed his opinions relevant to the matters at issue while participating in
    the events and as part of the ordinary exercise of his expertise. Accordingly,
    rather than being a stranger to the underlying events who gave an opinion based
    on a review of documents or statements from others concerning what had taken
    place, Dr. Tithecott formed his opinion based on direct knowledge of the
    underlying facts. He was therefore a fact witness, or, as I have referred to such
    witnesses in these reasons, a participant expert.

[71]

Other
    pre-2010 decisions also support the conclusion that rule 53.03 does not apply
    to opinion evidence given by participant experts.

[72]

For
    example, in
Burgess (Litigation Guardian of) v. Wu
(2003), 68 O.R.
    (3d) 710 (S.C.), in
obiter
comments, the trial judge differentiated
    between physicians opinions formed at the time of treatment  which involve making
    a diagnosis, formulating a treatment plan and making a prognosis (treatment
    opinions)  and opinions formed for the purpose of assisting the court at
    trial and based on consideration of information from a variety of sources
    (litigation opinions). Although the question of to whom rule 53.03 applies was
    not before the court, the clear distinction made between treatment opinions and
    litigation opinions supports the view that not all opinion evidence falls
    within the ambit of rule 53.03.

[73]

In my view,
    the Divisional Courts failure to refer to the pre-2010 jurisprudence was a
    significant oversight. In
Moore
, this court observed that the 2010
    amendments to rule 53.03 did not create new duties but rather codified and
    reinforced  basic common law principles: para. 52. 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.

[74]

Second,
    apart from
Westerhof
, 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. Following the amendments to
    rule 53.03, but prior to the decisions at issue, several Superior Court judges
    grappled with the question of to whom rule 53.03 applies. Opinion was divided
    concerning whether rule 53.03 applies to non-party experts, but apart from
Westerhof
,
no decision held that treating physicians must comply with rule 53.03.

[75]

The cases
    brought to our attention include those brought to the attention of the
    Divisional Court:

Kusnierz;
    Slaight; McNeill
; as well as
Continental v. J.J.s Hospitality
,
    2012 ONSC 1751, 12 C.L.R. (4th) 90.

[76]

Notably,
    in
McNeill
,
MacLeod-Beliveau J. described rule 4.1.01, rule
    53.03 and Form 53 as providing a comprehensive framework for the duty of an
    expert called as a witness at trial: at para. 18. She also described the
    ultimate purpose of rule 53.03 as being to limit and control the
    proliferation of experts retained by litigants: at para. 44. Further, she
    described the introduction of the new rules about expert witnesses as an
    effort to eliminate the use of hired guns or opinions for sale in civil
    litigation, where the use of which has resulted in potentially biased expert
    evidence being given at trial: at para. 44. Thus,
McNeill

provides
    support for the position that rule 53.03 was not intended to apply to participant
    and non-party witnesses.

[77]

Third, I
    see nothing in the Osborne Report that indicates an intention to address
    participant experts or non-party experts. Mr. Osborne began the section of his
    report on expert evidence with the following statement, at page 68:

There is general agreement that the increased use of experts is
    a factor that increases the cost of litigation and causes delay through trial
    adjournments. There is very little agreement on what to do about it.

[78]

Mr.
    Osborne identified several problems with expert evidence, including, for
    example: the proliferation of experts and expert reports, resulting in an
    industry of competing experts and associated increases in costs; expert bias;
    lengthy and uncontrolled expert testimony; the absence of a rule requiring
    experts to meet to seek to narrow disputed issues; problems with the timeliness
    of expert reports; and lack of regulation of the standard content of expert
    reports.

[79]

By their
    nature, the problems Mr. Osborne identified relate to litigation experts
    expert witnesses engaged by or on behalf of a party to provide opinion evidence
    in relation to a proceeding. I see nothing in his discussion or recommendations
    indicating an intention to address participant experts or non-party experts,
    whose evidence is relevant because of their observation of or participation in
    events underlying the litigation.

[80]

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. For example,
    the use of the words expert engaged by or on behalf of a party to provide
    [opinion] evidence in relation to a proceeding in rule 4.1.01 and Form 53
    makes this clear. An expert must be engaged by or on behalf of a party to
    provide [opinion] evidence in relation to the proceeding before the rule
    applies.

[81]

Like
    MacLeod-Beliveau J. in
McNeill
, I conclude that rule 4.1.01, rule
    53.03 and Form 53 are a comprehensive framework addressing a specific class of
    expert witnesses and expert reports. Although the words engaged by or on
    behalf of a party to provide [opinion] evidence in relation to a proceeding do
    not appear in rule 53.03, they appear in both rule 4.1.01 and Form 53. Rule
    4.1.01 defines the experts duty referred to in rule 53.03(2.1)7, and rule
    53.03(2.1)7 requires that Form 53 be signed. Taking account of these factors, I
    see no basis for concluding that rule 53.03 was intended to apply to persons
    other than expert witnesses engaged by or on behalf of a party to provide
    [opinion] evidence in relation to a proceeding.

[82]

Witnesses,
    albeit ones with expertise, testifying to opinions formed during their
    involvement in a matter, do not come within this description. They are not
    engaged by a party to form their opinions, and they do not form their opinions
    for the purpose of the litigation. As such, they are not engaged by or on
    behalf of a party to provide [opinion] evidence in relation to a proceeding.  A
    party does not engage an expert to provide [opinion] evidence in relation to
    a proceeding simply by calling the expert to testify about an opinion the
    expert has already formed.

[83]

Similarly,
    the requirement in rule 53.03(2.1)3 that an experts report set out the
    instructions provided to the expert in relation to the proceeding makes it
    abundantly clear that rule 53.03 only applies to litigation experts. A party
    does not provide instructions to a litigation expert or a non-party expert in
    relation to the proceeding  that it is because these experts have already formed
    their opinions.

[84]

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. As I have said, in my view,
Marchand
makes it clear that
    prior to 2010, rule 53.03 did not apply to participant experts. I see nothing
    in rule 53.03 reflecting an intention on the part of the Civil Rules Committee
    to change the status quo. 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.

[85]

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. In many instances, these experts will have prepared documents
    summarizing their opinions about the matter contemporaneously with their
    involvement. These summaries can be obtained as part of the discovery process. Further,
    even if these experts have not prepared such summaries, it is open to a party,
    as part of the discovery process, to seek disclosure of any opinions, notes or
    records of participant experts and non-party experts the opposing party intends
    to rely on at trial. If the notes produced are illegible, the party producing
    them must provide a readable version.

[86]

Sixth, I
    agree with the submissions of the parties and interveners who say that the
    Divisional Courts ruling will actually exacerbate the problems of expense and
    delay that it purports to alleviate. Unlike an expert witness engaged by or on
    behalf of a party to provide opinion evidence in relation to the proceeding,
    participant experts and non-party experts do not testify because they are being
    paid an experts fee to write the report contemplated by rule 53.03. Rather,
    they testify because they were involved in underlying events and, generally,
    have already documented their opinions in notes or summaries that do not comply
    with rule 53.03. Rule 53.03(2.1) contains strict requirements. Requiring 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 because of potential
    difficulties in obtaining rule 53.03 compliant reports, and add unnecessarily to
    the workload of persons not expecting to have to write rule 53.03-compliant
    reports (e.g. emergency room physicians, surgeons and family doctors).

C.

Westerhof v. Gee estate
:
    specific issues

(1) Did the trial judge err in his
    evidentiary rulings?

[87]

Based on my
    conclusions concerning to whom rule 53.03 applies, I agree that the trial judge
    erred in holding as a general matter that the various medical practitioners who
    had treated or assessed Mr. Westerhof could not give opinion evidence because
    they had not complied with rule 53.03. Nonetheless, I am not convinced that he
    erred in excluding all of the evidence that he excluded. I will address each of
    the impugned rulings in turn.

Dr. Ramelli

[88]

Dr.
    Ramelli is a chiropractor who treated Mr. Westerhof from April 26, 2004 (four
    days after the accident) until April 2005. He was not permitted to give
    evidence of the history he took from Mr. Westerhof or of his diagnosis or
    prognosis. In addition, Dr. Ramelli could not give evidence that he submitted a
    treatment plan to the accident benefits insurer, nor that the insurer had
    accepted the treatment plan.

[89]

Dr.
    Ramelli was permitted to give evidence of Mr. Westerhofs complaints and of the
    treatments he provided. He also gave evidence about the observations he made of
    Mr. Westerhof.

[90]

Although I
    agree that the trial judge erred in making a blanket ruling that treating
    practitioners could not give evidence of the histories they took and of their
    diagnosis and prognosis, based on the record before us, I am not persuaded that
    he erred in excluding the portions of Dr. Ramellis evidence to which objection
    was taken. Defence counsel objected to Dr. Ramellis giving opinion evidence in
    part because defence counsel did not receive Dr. Ramellis clinical notes until
    the evening before Dr. Ramelli testified and had no indication of what Dr.
    Ramellis opinion would be. There was no suggestion at trial that this was an invalid
    objection. In these circumstances, it was open to the trial judge to exclude the
    portions of Dr. Ramellis evidence to which objection was taken.

Dr. Bartolucci

[91]

Dr.
    Bartolucci is a psychiatrist and pain specialist. He treated Mr. Westerhof
    during about 30 sessions between May 2006 (about two years post-accident) and
    March 2009.

He was not permitted to give evidence of the history
    he took, or of his diagnosis or prognosis. Like Dr. Ramelli, Dr. Bartolucci was
    permitted to testify about Mr. Westerhofs complaints, his observations of Mr.
    Westerhof, and the treatment he provided, including the medications he
    prescribed and why he prescribed them.

[92]

Dr.
    Bartoluccis medical reports (which did not comply with rule 53.03) were not
    admitted into evidence at trial, but they were marked as lettered exhibits and
    included in the appeal record. The reports list a variety of diagnoses
    including: chronic pain; psychiatric post-traumatic symptoms (fear of the worst
    happening, dizziness, heart pounding and racing, nervousness, and fear of
    losing control); and moderate to severe major depressive disorder.

[93]

As Dr.
    Bartolucci was a treating psychiatrist and pain specialist, I agree that the
    trial judge erred in making a blanket ruling that he could not give evidence of
    the history he took and of his diagnosis and prognosis. This evidence should
    have been admitted.

Dr. Blacks clinical notes
    and records

[94]

Dr.
    Black, Mr. Westerhofs family doctor, was permitted to describe Mr. Westerhofs
    pre-motor vehicle accident medical history, as well as Mr. Westerhofs
    presenting symptoms and complaints the day after the accident and on subsequent
    visits. He also testified about the treatments he prescribed, the tests he
    ordered, and the referrals he made.

[95]

Mr.
    Westerhofs counsel was not, however, permitted to file Dr. Blacks clinical
    notes and records covering the period April 23, 2004 (the day after the
    accident) to June 30, 2009, as business records under s. 35 of the
Evidence
    Act
, R.S.O. 1990, c. E.23.

[96]

At trial, defence
    counsel conceded that Dr. Blacks clinical notes are the type of records that
    can be admitted as business records. However, he objected to the introduction
    of the clinical notes and records for two reasons. First, the notes and records
    contained reports and opinions from other practitioners (which defence counsel
    acknowledged could be redacted). Second, the notes and records had little added
    probative value because Dr. Black had given evidence about his visits with Mr.
    Westerhof. Further, they had the potential to distract the jury because they were
    recorded in Dr. Blacks own shorthand.

[97]

The trial
    judge held that the clinical notes and records had limited probative value and
    declined to admit them.

[98]

I see no basis
    on which to hold that the trial judge erred in his decision. If counsel for Mr.
    Westerhof wished to have the reports of other practitioners included in Dr.
    Blacks notes and records admitted for the truth of their contents, he should
    have served notices under s. 52 of the
Evidence Act
.
[4]
There is no indication in the appeal record that this was done. Further,
    because Dr. Black had testified, the decision whether to also admit his
    clinical notes and records was an issue within the trial judges discretion. I
    see no basis on which to interfere with that exercise of discretion.

The MRI reports

[99]

Counsel
    for Mr. Westerhof tendered two MRI reports, dated July 16, 2008 and September
    21, 2008 (conducted with contrast), for admission as business records under s.
    35 of the
Evidence Act
. The trial judge admitted them subject to
    redactions to exclude the radiologists comments on causation related to the
    motor vehicle accident. The trial judge also ruled that, if called, the
    radiologist who authored the MRI reports would not be permitted to opine on
    causation because he had not filed a rule 53.03 report.

[100]

Among other things, the MRI
    reports disclosed: dysplasia of the femoral head and neck; the potential for
    femoral acetabular impingement syndrome, which would be a chronic issue; mild
    bone marrow edema; a 5 mm loose body adjacent to the anterior acetabulum; and a
    degenerative complex labral injury with associated articular cartilage injury.

[101]

The following redactions
    were made to the first report:

·

There is a history of a previous MVA.

·

Given the history of recent trauma the labral injury may in fact
    be due to an acute injury as well.

·

This [5 mm loose body] may represent an avulsed bony injury
    given the history of trauma and the presence of the bone marrow edema.

[102]

The following statement was
    redacted from the second report:

·

The labral tear is probably secondary to trauma superimposed on
    a background of CAM femoroacetabular impingement.

[103]

Because these reports were
    tendered under s. 35 of the
Evidence Act
, the opinions concerning
    causation were not admissible for the truth of their contents:
Robb Estate
    v. Canadian Red Cross Society

(2001), 152 O.A.C. 60 (C.A.)
,
at
    para. 152;
MacGregor v. Crossland
,
1994 CanLII 388 (Ont. C.A.) at
    para. 3. Further, the appeal record contains no indication that notice was
    served for the admission of these reports under s. 52 of the
Evidence Act
.

[104]

Nonetheless, I conclude that
    the trial judge erred in ruling that the author of the MRI reports could not be
    called because he had not complied with rule 53.03. The MRIs were conducted to
    diagnose and treat Mr. Westerhof. Thus, the author of the MRI reports was
    effectively a treating physician. There was no suggestion at trial that he was
    not qualified to give the opinions he offered.

Dr. Rathbone

[105]

Dr. Rathbone testified as a
    rule 53.03 litigation expert. He was initially qualified as a neurologist and
    was later qualified as having expertise in the diagnosis (but not treatment or
    assessment) of muscular skeletal injuries and in the field of physical and
    rehabilitative medicine.

[106]

Dr. Rathbone examined Mr.
    Westerhof on June 10, 2011. He was permitted to give evidence about his own
    diagnosis and prognosis, and to provide an opinion on causation, including his
    review of the MRI reports. He was not permitted to give evidence about diagnoses
    made by other professionals who had not complied with rule 53.03, namely, the
    causation opinion contained in the MRI reports and Dr. Bartoluccis psychiatric
    diagnoses, including any chronic pain diagnosis.

[107]

As I understand it, Mr.
    Westerhofs complaints in relation to Dr. Rathbone are twofold. First, the
    trial judge erred in preventing Dr. Rathbone from giving evidence about the
    opinions of other rule-53.03-non-compliant experts for the truth of its
    contents. Second, Dr. Rathbone was precluded from referring to the evidence of
    the other rule-53.03-non-compliant experts to explain how he arrived at his own
    conclusions.

[108]

I would not give effect to
    Mr. Westerhofs first complaint. As I have said, the author of the MRI reports
    and Dr. Bartolucci should have been permitted to testify about their opinions,
    and the trial judge erred in refusing to permit them to do so. However, whether
    the other rule-53.03-non-compliant experts testified, Dr. Rathbone could not
    give evidence about their opinions for the truth of its contents. The other
    experts had to give that evidence themselves; his recounting of their opinions
    would constitute hearsay.

[109]

However, Mr. Westerhofs
    second complaint is valid. Dr. Rathbone was precluded from giving evidence at
    trial about his diagnosis that Mr. Westerhof suffered accident-related
    post-traumatic psychological changes and his recommendations in that regard.
    The reason was that he had relied, at least in part, and perhaps largely, on Dr.
    Bartoluccis reports to reach that conclusion. An expert witness is entitled to
    refer to the reports of other experts to explain how he or she reached his or
    her conclusions. It is then up to the trier of fact to assess whether the basis
    for the experts conclusions have been proven in evidence, and, if they have
    not, to determine how that should affect the weight to be given to the experts
    opinion. Thus, the trial judge erred in precluding Dr. Rathbone from testifying
    about his opinions concerning the psychological effects of the accident on Mr.
    Westerhof and his recommended treatments.

[110]

As for the MRI reports, I
    acknowledge that, although Dr. Rathbone was not permitted to read the redacted
    portions of the MRI reports into the record
[5]
,
    he was permitted to testify about his diagnosis of Mr. Westerhofs hip problem
    based on his review of the MRI reports  and he was also able to state his
    opinion that Mr. Westerhofs labral tear most probably happened traumatically.

[111]

Dr. Rathbone testified that
    the MRI reports disclosed a labral tear; that such tears almost always occur in
    the presence of some abnormality in the bone; that the first MRI disclosed
    changes within the labrum that looked like a crack and that the second MRI was
    compatible with degenerative changes plus trauma. He also testified that a
    forceful movement is necessary to tear the labrum. And he explained that the
    literature says that 2.5 years from trauma to diagnosis is characteristic.
    Nonetheless, the fact remains that Dr. Rathbone was not permitted to refer to
    the redacted portions of the MRI reports, which were consistent with his
    opinion that the labral tear happened traumatically  something he would have
    been entitled to do had the radiologist who authored the reports been permitted
    to testify.

Ms. Gross and Ms. Murray

[112]

Ms. Gross is a
    physiotherapist, and Ms. Murray is a kinesiologist. They conducted a functional
    abilities assessment on Mr. Westerhof in August 2006 and prepared a report for
    Mr. Westerhofs SABS insurer.

[113]

Ms. Gross and Ms. Murray
    each signed a Form 53 acknowledgement of experts duty; however, the trial
    judge ruled that they could not provide rule 53.03 evidence because they were
    not retained for the purposes of the litigation. The trial judge held that they
    could give evidence of their observations of Mr. Westerhof, but that they could
    not testify about their conclusions and opinions, including opinions that Mr.
    Westerhof was experiencing pain. Due to these restrictions, Mr. Westerhof did
    not call them as witnesses.

[114]

I agree that the trial judge
    erred in ruling that these witnesses could not testify about their opinions because
    they had not or could not comply with rule 53.03. In my view, they were
    entitled to testify concerning the history they took, the tests they performed,
    and the results they observed, including their observations about whether Mr.
    Westerhof was experiencing pain, without complying with rule 53.03, because of
    their status as non-party experts.

[115]

Their report is in the
    appeal record and includes the following notes and assessments:

i.

Mr. Westerhofs present complaints include: constant pain in the left
    lumbar spine and left groin region; shooting intermittent pain in the left leg;
    intermittent aching in the left neck and shoulder blade region; driving anxiety;
    depression; irritability; mood swings; short concentration; and sleep
    disturbances;

ii.

Mr. Westerhof currently demonstrates the ability to work at a light
    physical demands level with a maximum of 20 lbs. being manipulated. He
    demonstrated the ability to walk on an occasional basis and stand on a frequent
    basis with the opportunity to alter his position approximately every 30
    minutes. His demonstrated abilities are probably an over-estimation of his
    actual abilities to sustain activity on a day to day basis. Mr. Westerhof
    continues to be challenged by low back pain with static and repetitive postures,
    left/leg hip weakness, with standing activities and low level postures;

iii.

Mr. Westerhof cannot return to his previous job as a thermoform machine
    operator because [h]is physical/functional abilities do not meet the
    requirements of his job for walking, standing, low level positioning, lifting,
    pushing, and reaching. Mr. Westerhof could manage a job that allows for
    frequent altering of position between sitting and standing, light lifting
    requirements and no low level positioning;

iv.

There were some observed pain behaviours primarily with motion of the
    left hip; Squatting resulted in marked left hip pain which continued for
    approximately 1 to 2 minutes; A [h]ip evaluation shows the left hip to have
    decreased mobility. The right hip mobility was pain free and full range of
    movement;

v.

Having reviewed Mr. Westerhofs file, derived a history, performed a
    physical examination, it is the opinion of this assessor that Mr. Westerhofs
    presentation today is consistent with the motor vehicle accident as described.
    There is a temporal relationship from the accident to the onset of symptoms.
    The mechanism of injury is consistent with whiplash and rear end collision.
    There was no pre-existing condition noted in his history;

vi.

Mr. Westerhof  was involved in a motor vehicle accident which occurred
    on April 22, 2004. From this motor vehicle accident, he has sustained cervical,
    shoulder soft tissue injuries with EMG demonstrated radiculopathy and lumbar
    spine spondylolisthesis with EMG demonstrated L5 radiculopathy. There also
    appears to be left hip dysfunction.

[116]

I am satisfied that Ms.
    Gross and Ms. Murray were entitled to testify concerning the contents of the first
    four paragraphs set out above. These paragraphs include statements about the
    history these witnesses took from Mr. Westerhof, their observations of Mr.
    Westerhof during their assessment, and their conclusions about his ability to
    return to his pre-accident employment in the light of his presenting condition.
    All of these matters related to their interactions with Mr. Westerhof and fell
    within the scope of the ordinary exercise of their expertise.

[117]

Concerning the fifth and
    sixth paragraphs, which addressed causation, the trial judge could properly
    have excluded these opinions, or required the witnesses to comply with rule
    53.03 in relation to them. This decision would depend on the trial judges
    assessment of factors such as the witnesses expertise and the extent to which their
    opinions were based on information gained from sources beyond their interactions
    with Mr. Westerhof. Rather than making a blanket ruling excluding the evidence
    of these witnesses, the trial judge should have determined the admissibility of
    the contested portions of their opinions as part of the usual exercise of his
    gatekeeper function.

Mr. Husler

[118]

Mr. Husler is a road safety
    consultant and driving therapist intern. At the request of Dr. Bartolucci, Mr.
    Husler did an in-vehicle assessment of Mr. Westerhof in February 2007 for
    assessment with regard to diagnosed anxiety in-vehicle as well as pain factors
    in the ergonomics of safe driving. Mr. Husler also prepared a letter setting
    out his observations and conclusions and a treatment plan.

[119]

At trial, Mr. Westerhof
    submitted that Mr. Husler was a treater not an expert, and that compliance
    with rule 53.03 was not required. However, the trial judge concluded that Mr.
    Husler was being called to give evidence that Mr. Westerhof had a pathology of a
    psychiatric nature arising from the motor vehicle accident and that he was not
    qualified to give that opinion. In the result, the trial judge ruled that Mr.
    Husler could not testify.

[120]

It is unclear from Mr.
    Huslers report exactly what qualifications he has, but there is no dispute
    that Dr. Bartolucci referred Mr. Westerhof to him and asked that he conduct an
    assessment and prepare a treatment plan. Based on this referral, it seems
    likely that Mr. Husler was sufficiently qualified to conduct the tasks he was
    asked to perform. His qualifications should have been explored more fully
    before any ruling was made. In any event, he should have been allowed to
    testify concerning his observations of Mr. Westerhof during the in-car
    assessment.

(2) Do the trial judges erroneous evidentiary rulings warrant a new trial?

[121]

Section 134(1)(b) of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, authorizes an appeal court to order
    a new trial. However, s. 134(6) provides that this court "shall not direct
    a new trial unless some substantial wrong or miscarriage of justice has
    occurred."

[122]

As this court stated in
Beldycki
    Estate v. Jaipargas
, 2012 ONCA 537, 295 O.A.C. 100, at para. 42, in a
    civil trial, a new trial will only be ordered where the interests of justice
    plainly require it.

[123]

Counsel for the respondent
    submits that, even if the trial judge erred in applying rule 53.03, an order
    for a new trial is not warranted because substantially all of Mr. Westerhofs
    tendered evidence was before the court in any event.

[124]

For example, Drs. Ramelli,
    Black and Bartolucci were all entitled to describe their visits with Mr.
    Westerhof; the complaints he made; their observations of him; the treatments
    they prescribed or administered; and the referrals they made. Although
    precluded from testifying concerning his formal diagnosis, Dr. Bartolucci was
    permitted to describe Mr. Westerhof as depressed and explain some of the
    complaints and symptoms that led him to this conclusion.

[125]

Further, Dr. Rathbone was
    able to give his opinion on causation concerning Mr. Westerhofs hip and back
    problems. Although he was not entitled to read from the redacted portions of
    the two MRI reports, he was able to say he reviewed the MRIs and formed his
    conclusions, at least in part, on the basis of that review.

[126]

Finally, although the trial
    judge ruled the driving counsellor could not testify, several lay witnesses
    testified as to their observations of Mr. Westerhofs state when riding in a
    car.

[127]

I would not accept these
    submissions. In my view, the trial judges erroneous evidentiary rulings
    prevented Mr. Westerhof from placing important evidence before the judge and
    jury that could reasonably have affected the outcome of the trial.

[128]

As the trial judge observed
    in his threshold ruling, causation was a central issue at trial. Mr.
    Westerhofs claims that he is disabled, in chronic pain and suffering
    significant psychological post-traumatic symptoms are all inextricably linked
    to the question whether he suffered hip and back injuries as a result of the
    accident.

[129]

At trial, each side called a
    rule-53.03-compliant witness to testify about causation. Mr. Westerhof called
    Dr. Rathbone, a neurologist, who examined Mr. Westerhof on June 10, 2011. I
    have described the essence of his testimony relating to Mr. Westerhofs hip
    problems above. Concerning Mr. Westerhofs low back pain,
Dr. Rathbone testified that the x-rays of Mr.
    Westerhofs lower back revealed spondylosis and spondylolisthesis. He indicated
    that although spondylolisthesis can develop in a relatively young man one has
    to suspect that its most probably caused by trauma. In his view, Mr.
    Westerhofs low back pain was related to the accident. While there was likely
    some pre-existing degenerative change, it was asymptomatic. The additional
    stress of the motor vehicle accident likely caused Mr. Westerhofs lower back
    pain.

[130]

The respondent called Dr.
    Cividino, a rheumatologist, as its rule-53.03-compliant expert.
[6]
He examined Mr. Westerhof on June 20, 2006. He opined that the motor vehicle
    accident did not cause Mr. Westerhofs low back and hip problems and that the
    soft tissue injuries Mr. Westerhof suffered in the accident had resolved prior
    to trial.

[131]

According to Dr. Cividino,
    at the time of his examination, Mr. Westerhof reported left leg pain, groin
    pain and lower back pain on certain movements. Dr. Cividino opined that these
    were not valid complaints because the particular movements should not have
    produced pain in the areas identified by Mr. Westerhof. Despite this
    conclusion, Dr. Cividino accepted that Mr. Westerhof had mechanical low back
    pain (activity-related pain) as of June 2006. However, he opined that it was
    unrelated to the accident because Mr. Westerhof had not reported low back pain
    to either his family doctor or his chiropractor immediately following the
    accident.

[132]

Dr. Cividino also reviewed
    additional medical records generated subsequent to his examination. He said
    they reflected worsening back pain and complaints of left hip pain. He noted
    that Mr. Westerhof had had an MRI done on his back, which showed some mild
    degenerative changes, and two MRIs of his hip, which showed dysplasia of the
    femoral neck and a labral tear.

[133]

In Dr. Cividinos view, the
    labral tear at the left hip could not have resulted from the car accident. He
    said that in order to tear the labrum from trauma you have to sublux or
    dislocate the hip, meaning that the ball and socket come out partially or
    completely. These would be painful, memorable events, which would render a
    person unable to bear weight. Mr. Westerhof was able to get up and walk around
    after the accident, and his hip symptoms came years later. In Dr. Cividinos
    view, this was consistent with the natural history of femoral impingement that
    had been building up over time.

[134]

Concerning the low back
    pain, Dr. Cividino indicated that Mr. Westerhofs spondylosis and
    spondylolisthesis are things that develop in the late teen years in the lower
    spine  so  over the years [hes] been having changes to his low back. And so
    having them become symptomatic at some point its not surprising. Further, it
    was his view that because Mr. Westerhof did not report back pain until two
    weeks after the accident, the source of the back pain was unrelated to the
    accident.

[135]

Dr. Cividino also testified
    that Mr. Westerhofs hip problems could be affecting Mr. Westerhofs level of
    back pain. This was because Dr. Adili confirmed he saw and removed the synovium
[7]
during surgery, which indicated there was arthritis in the joint. People
    develop flexion contractures as a result of arthritis, meaning that they cannot
    move their leg back. That results in flexion of the hip, so that when a person
    stands up they arch their back and really load up their lower back joints.

[136]

Based on the jurys verdict
    and the findings of the trial judge on the threshold motion, it is apparent
    that Dr. Cividinos evidence was accepted and that Dr. Rathbones evidence was
    not accepted.

[137]

In my view, had the
    improperly excluded evidence been admitted, at least three aspects of that
    evidence, in combination, could reasonably have affected the outcome of the
    trial.

[138]

First, the evidence of Ms.
    Gross and Ms. Murray concerning Mr. Westerhofs condition in August 2006 could
    have undermined the evidence and credibility of the defence expert, Dr.
    Cividino.

[139]

As I read his evidence, Dr.
    Cividino testified, in effect, that as of June 2006, Mr. Westerhof was
    malingering. Moreover, Dr. Cividino testified in-chief that Mr. Westerhof did
    not complain of hip pain at the time of his examination.
[8]

[140]

On the other hand, Ms. Gross
    and Ms. Murray observed pain behaviours and restricted hip movement. They
    described no observations suggesting malingering. In my view, their evidence
    had the potential to undermine Dr. Cividinos credibility and neutrality
    concerning whether Mr. Westerhof was malingering and concerning whether Mr.
    Westerhof was experiencing hip problems in the summer of 2006  factors that
    may well have been important to the jurys (and the trial judges) acceptance
    of Dr. Cividinos evidence.

[141]

Second, had the radiologist
    been entitled to testify and express the opinion on causation that he expressed
    in the MRI reports, that evidence would have provided direct support for Dr.
    Rathbones evidence concerning the cause of Mr. Westerhofs hip problems.

[142]

Third, had Dr. Rathbone been
    entitled to refer to the radiologists opinion expressed in the MRI reports,
    that could have been an important factor supporting his credibility. Dr.
    Rathbone testified about causation in relation to the hip injury based in part
    on his review of the MRI reports. Yet the references to the motor vehicle
    accident and the opinion that the labral tear was secondary to trauma were
    redacted from the MRI reports that were filed as exhibits. What remained in
    both exhibits was reference to a degenerative complex labral injury,
    suggesting nothing more than wear and tear. Had Dr. Rathbone been permitted to
    refer to the redacted portions of the MRI reports, his evidence would have been
    supported rather than possibly undermined. This could have been important in
    determining which experts evidence to accept.

[143]

For the sake of
    completeness, I note that Dr. Adilis evidence could be interpreted as
    assisting the defence. Dr. Adili is the orthopedic surgeon who performed hip
    surgery on Mr. Westerhof in June 2009. He had not complied with rule 53.03 and
    therefore was not entitled, under the trial judges rulings, to give opinion
    evidence.

[144]

Dr. Adili described the
    surgery he performed as femoral reshaping, basically taking off the offending
    parts of the bone that were causing an impingement. He explained that he found
    a lesion over the femoral neck that was banging into the cup part of the hip
    joint and some fraying of the labral material. He trimmed [the labrum] back to
    stable margins, which he analogized to trimming frayed ends of a rug.

[145]

During his
    examination-in-chief, he volunteered that for the most part  it looked like
    the labrum was stable, so [his] suspicion [was] that fraying was secondary to
    the bone banging up against the cartilage.

[146]

Although this evidence may
    imply that it was Dr. Adilis opinion that Mr. Westerhofs hip problems are the
    result of wear and tear and not trauma, I do not think it appropriate that I
    draw that inference on appeal. Neither counsel referred to this evidence in
    their appeal submissions. Moreover, counsels examination of Dr. Adili was
    circumscribed by the trial judges ruling that witnesses who had not complied
    with rule 53.03 could not give opinion evidence.

[147]

In my opinion, the trial
    judges error in applying rule 53.03 resulted in the exclusion of important
    evidence tendered by Mr. Westerhof that could reasonably have affected the
    outcome of the trial. Based on my review of the record, I am not satisfied that,
    either the trial judge, in his threshold ruling, or the jury, in its verdict,
    "would necessarily have reached the same result" had such evidence
    not been excluded:
Moore
, at para. 117;
Khan v. College of Physicians
    and Surgeons
(1992), 9 O.R. (3d) 641 (C.A.), at p. 676. Accordingly, in all
    the circumstances, I would order a new trial.

D.

McCallum v. Baker

(1) Introduction

[148]

Mr. McCallum suffered
    injuries in a motor vehicle accident on March 23, 2009. The accident happened
    at about 6:45 a.m. He was on his way to work in a full size GMC Sierra pickup
    truck, southbound on Highway 400. Traffic in the southbound lanes came to a
    stop just north of King Road. Mr. McCallum was in the far left lane. He looked
    in his rear view mirror and saw headlights coming and braced himself for a
    collision. The rear of his pickup truck was then struck by a car driven by Mr.
    Baker.

[149]

Mr. McCallum was 41 years of
    age at the time of the accident and was working as an electrical
    sub-contractor. He claims that he was healthy prior to the accident, but that as
    a result of the accident he suffered serious injuries to his neck, back,
    shoulder and hands, as well as chronic pain, chronic headaches and severe
    depression. He claims that these injuries prevented him from returning to work
    and severely curtailed his activities of daily living.  Mr. McCallum also
    claims that it is unlikely that he will ever be able to return to work.

[150]

Mr. McCallum sued Mr. Baker
    for damages. In addition to general damages and damages for past loss of income,
    Mr. McCallum claimed significant amounts for future loss of income and future
    costs of care, including $598,209 for medications.

[151]

Mr. Baker admitted liability
    and agreed that Mr. McCallum was entitled to damages, including a significant
    amount for general damages and sums for future loss of wages and future care. However,
    Mr. Baker also claimed that Mr. McCallum had pre-existing conditions that were
    aggravated by the accident, and disputed Mr. McCallums assertions that he will
    never be able to return to work. He claimed that some of Mr. McCallums
    symptoms are side effects of medications Mr. McCallum has been prescribed, and
    that Mr. McCallums award should be reduced for failure to mitigate by reducing
    his dependency on these medications.

[152]

The trial was held before a
    judge and jury prior to the Divisional Courts decision in
Westerhof
.

[153]

At trial, the trial judge
    permitted several medical practitioners who had treated Mr. McCallum to give
    opinion evidence concerning Mr. McCallums future employment prospects and
    future treatment needs without complying with rule 53.03. The trial judge
    concluded that because these witnesses were treating medical practitioners,
    they could give opinion evidence without complying with rule 53.03.
[9]

[154]

The jury awarded damages to
    Mr. McCallum totalling $785,275. That figure is broken down as follows:

·

General damages: $175,000

·

Past loss of income: $47,081

·

Future loss of income: $272,285

·

Future costs of care:

o

Multidisciplinary and other programs: $19,772

o

Medications: $222,016

o

Aids to daily living: $4,821

o

Physiotherapy: $25,000

o

Housekeeping and home maintenance: $19,300

[155]

On appeal, Mr. Baker
    accepted that treating physicians may give opinion evidence directly related to
    their treatment of a patient, such as a working diagnosis and prognosis. Nonetheless,
    he submits that the trial judge retains a gatekeeper function in relation to
    opinion evidence of treating physicians who do not comply with rule 53.03 and
    that, in his case, the trial judge erred in failing to fulfill his gatekeeper
    function in three ways.

[156]

First, the trial judge erred
    in permitting treating physicians to give opinion evidence concerning matters
    such as future employability and future medication requirements that were not
    directly related to the treating physicians treatment of Mr. McCallum and that
    had not been disclosed prior to trial.

[157]

Second, the trial judge
    erred in permitting treating physicians to give opinions that went beyond their
    expertise.

[158]

Third, by permitting treating
    physicians to opine on matters that properly fell within the boundaries of rule
    53.03 expert evidence, the trial judge unfairly allowed an excessive amount of
    expert evidence and ran afoul of the provisions of s. 12 of the
Evidence
    Act
. Subject to leave, s. 12 limits to three the number of experts who may
    testify for a party.

[159]

Mr. Baker also argues that
    the trial judges jury instructions were unbalanced and failed to properly set
    out key portions of the evidence and his submissions and theory of the case.

(2) The opinion evidence issue

[160]

Mr. Baker called seven rule
    53.03-compliant medical expert witnesses at trial:

·

a neurologist, qualified to speak about chronic pain and
    psychological issues as a sub-specialty;

·

an anaesthetist qualified to give evidence about medical psychotherapy
    and pain medication;

·

a physiatrist;

·

an orthopedic surgeon with a sub-specialty in chronic pain and
    orthopedic disability;

·

a psychiatrist;

·

a family physician who works at a pain centre; and

·

a psychologist qualified to give evidence about psychology and
    vocational rehabilitation and chronic pain.

[161]

In addition to these
    experts, Mr. Baker called seven treating medical practitioners, the evidence of
    five of whom is controversial:

·

Dr. Cutbush, his family doctor;

·

Dr. McMaster, a treating psychologist;

·

Dr. Kraus, a treating psychiatrist;

·

Dr. May, a treating family doctor and pain specialist; and

·

Mr. Ball, a treating physiotherapist.

[162]

The controversial aspects of
    these witnesses testimony all relate to opinions concerning Mr. McCallums
    prognosis. Mr. Baker objects to the following general areas of testimony:

·

Dr. Cutbush and Mr. Ball testified that with respect to the
    conditions for which they were treating Mr. McCallum he appeared to have
    plateaued and was unlikely to improve further;

·

Drs. May and Kraus testified that Mr. McCallum would need to
    remain on medication indefinitely;

·

Dr. Kraus testified that if Mr. McCallum stopped taking his
    anti-depressants, he would be at increased risk of suicide; and,

·

Drs. McMaster, Kraus and Cutbush and Mr. Ball testified that Mr.
    McCallum was not able to return to work.

[163]

Mr. Bakers first two
    complaints in relation to this evidence are inter-related. He says the opinions
    on matters such as future medication requirements and future employability were
    not directly related to these practitioners treatment of Mr. McCallum, that
    such opinions had not been disclosed prior to trial, and that such opinions
    went beyond the treating practitioners expertise.

[164]

With respect to the opinions
    relating to potential for improvement and future medication requirements, I see
    no merit in Mr. Bakers complaints. On their face, these opinions relate to the
    practitioners treatment of Mr. McCallum and fall within their respective areas
    of expertise. Although some of the transcript excerpts to which we were
    referred may be somewhat ambiguous, it appears that the opinions at issue were
    formed at the time of treatment. I see no indication in the transcript that the
    opinions had not been disclosed.

[165]

The opinions concerning
    ability to return to work are more difficult. Nonetheless, in the circumstances
    of this case, I am not persuaded that the trial judge erred in allowing Drs.
    McMaster, Kraus, Cutbush and Mr. Ball to give them. The opinions appear to have
    been formed at the time of, and arise directly from, the practitioners
    treatment of Mr. McCallum, they are not complex vocational opinions requiring highly
    specialized expertise, and I see no indication that they had not been
    disclosed.

[166]

Dr. McMaster gave her
    opinion in the context of describing her DSM IV diagnosis. To make this
    diagnosis, Dr. McMaster assessed Mr. McCallum on five axes. She described axis
    5 as a Global Assessment of Functioning (GAF), and said that a score of 60 on
    the GAF scale is considered a minimum requirement for return to work (a score
    of 65 is ideal). She classified Mr. McCallum as a 50 on the GAF scale. She
    explained that although Mr. McCallum was making a little bit of a turning
    point, he continued to have issues accepting his new body and dealing with
    what it cant do anymore. Thus, in her view, Mr. McCallum was definitely not
    ready to return to work.  There is no suggestion that Dr. McMaster was not
    qualified to conduct this assessment.

[167]

Concerning Dr. Kraus, when
    asked if Mr. McCallum could return to any form of gainful employment, he
    testified that if Mr. McCallum was going to go back to work as an electrician,
    he (Dr. Kraus) would not let Mr. McCallum into his house. He explained:

[B]ut if you look at  with the way he is right now, his
    concentration isnt good enough, his motivation is not good enough, his energy
    level is not good enough. I dont think that he could do any kind of activity
    related to any sort of complex task that would require a significant period of
    sustained activity that arent [
sic
] interruptible. I dont think he
    could do those things because he cant right now and I dont see anything on
    the horizon that is rapidly likely to change that.

[168]

Considered in context, Dr.
    Krauss opinion concerning Mr. McCallums employability was no more than a
    conclusion that flowed naturally from his observations concerning Mr.
    McCallums presenting condition. The observations and Dr. Krauss conclusion
    arising from them fell within his expertise.

[169]

Dr. Cutbush was asked if he
    formed an opinion with respect to Mr. McCallums employability when he wrote a
    report dated January 8, 2012. In what appears to be a direct quotation from
    that report, Dr. Cutbush testified, [i]n my opinion Mr. McCallum is
    permanently disabled from gainful employment for which he is qualified by
    training and/or experience, as a direct result of the motor vehicle accident of
    March 23, 2009.

[170]

Dr. Cutbush also testified
    that in the same report he listed the following diagnoses in relation to Mr.
    McCallum: Whiplash Associated Disorder III, with left arm neuropathy; cervical
    spine injury: discogenic, facet, or mechanical; lumbar spine injury:
    discogenic, facet, or mechanical; traumatic bilateral carpal tunnel syndrome;
    chronic post-traumatic headaches, posttraumatic depression and anxiety and
    chronic pain disorder.

[171]

It appears that Dr.
    Cutbushs opinion concerning Mr. McCallums ability to work flowed directly
    from the diagnoses he had made in his capacity as Mr. McCallums family doctor.
    Again, this was not a complex vocational assessment, but simply a
    straightforward opinion formed as part of his ongoing treatment of Mr.
    McCallum.

[172]

Finally, Mr. Balls opinion
    was based on the simple fact that Mr. McCallum could not do overhead work
    because of the condition of the facet joints in his neck. This opinion was
    straightforward and fell within Mr. Balls area of expertise.

[173]

Mr. Bakers third complaint
    is that, in permitting treating physicians to give the opinions noted above (which
    he claims fall more properly within the boundaries of rule 53.03 litigation
    expert opinion) the trial judge unfairly permitted an avalanche of expert
    evidence.

[174]

I agree that it 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. As I have said, the 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. McCallums 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.

[175]

In the result, I would not
    give effect to this ground of appeal.

(3) The jury instructions issue

[176]

Mr. Baker submits that the
    trial judges jury instructions were unbalanced and failed to adequately
    summarize for the jury his overriding theory  and the evidence that supported
    it  that many of Mr. McCallums complaints were being caused by the medications
    he was taking and that Mr. McCallum had not taken adequate steps to improve his
    condition. We did not call on Mr. McCallum to respond to this argument.

[177]

In the context of a civil
    jury trial, failure to object to the charge, particularly in a case involving
    non-direction, will often be fatal to any subsequent claim that the charge was
    flawed:
Marshall v. Watson Wyatt & Co.
(2002), 57 O.R. (3d) 813
    (C.A.), at para.15.

[178]

In this case, counsel for
    Mr. Baker had a copy of the trial judges jury instructions by approximately 5
    p.m. on the evening before the trial judge delivered his charge to the jury.
    Nonetheless, he did not raise the objection he now advances on appeal until
    after the trial judge had completed his instructions to the jury.

[179]

The trial judge declined to
    recharge the jury. Among other things, he said it would be a virtually
    impossible and potentially confusing task:

I also agree that it would be very confusing and difficult to
    go back to recharge the jury on issues that [defence counsel] suggest percolate
    through the whole evidence review, an issue which we could have tackled
    yesterday  or at least been alerted to this morning.
But having given them
    that information to go back and try to readdress it I think is an impossible
    task and certainly might represent utter confusion to the jury
. [Emphasis
    added.]

[180]

In 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.

[181]

In the circumstances, we
    agree that the nature of Mr. Bakers objection would have made it difficult for
    the trial judge to promptly prepare a meaningful recharge. 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.

[182]

In any event, Mr. Baker
    acknowledges that, prior to instructing the jury, the trial judge asked counsel
    to provide him with a statement of their positions for inclusion in his charge
    and that the trial judge read out Mr. Bakers position statement verbatim as
    part of his jury instructions. We note as well that, when reviewing each head
    of damages in his jury instructions, the trial judge reviewed the defence
    position and the reasons for it.

[183]

In the circumstances, we declined
    to give effect to this ground of appeal.

E.

disposition

[184]

Based on the foregoing
    reasons, I would allow Mr. Westerhofs appeal, set aside the jurys verdict and
    the trial judges judgment, and order a new trial. I would dismiss Mr. Bakers
    appeal. If the parties are unable to agree as to costs, we will receive brief
    written submissions.

Released:

MAR 26 2015                                   Janet
    Simmons J.A.

JL                                                    I
    agree John Laskin J.A.

I
    agree Robert J. Sharpe

Appendix A

ACKNOWLEDGMENT OF EXPERTS DUTY

1. My name is
    ....................................................... (name). I live at
    ............................................. (city), in the
    ............................................ (province/state) of
    ........................................... (name of province/state).

2. I have been
    engaged by or on behalf of ........................... (name of party/parties)
    to provide evidence in relation to the above-noted court proceeding.

3. I acknowledge that
    it is my duty to provide evidence in relation to this proceeding as follows:

(a)

to provide opinion evidence that is fair, objective and non-partisan

(b)

to provide opinion evidence that is related only to matters that are
    within my area of expertise; and

(c)

to provide
    such additional assistance as the court may reasonably require, to determine a
    matter in issue.

4. I acknowledge that the duty
    referred to above prevails over any obligation which I may owe to any party by
    whom or on whose behalf I am engaged.

Date ..............................

Signature

[1]

The full text of Form 53 is included in Appendix A.

[2]
Mr. Westerhofs expert, Dr. Rathbone, described spondylosis and spondylolisthesis
    without explicitly explaining the distinction between the two conditions. After
    describing vertebrae, the cushion between them and the nearby facet joints, he
    said a break can occur in the area going to the facet joint which leads to
    inflammation and pressure on the nerve root.  He said in Mr. Westerhofs case,
    he also has slippage of one vertebrae over another, causing further pressure on
    nerve roots.

The respondents expert, Dr.
    Cividino, explained that spondylosis is a condition where the area between a
    bone in the vertebra and another part of the spine becomes stretched out and
    weakened. Spondylolisthesis refers to the slippage of that vertebra on the
    vertebra below.

[3]

In addition to the medical practitioners listed, Mr. Westerhof
    also called a treating physiotherapist, Dr. Bakri. Mr. Westerhof did not make
    any submissions concerning Dr. Bakri on the appeal.

[4]
Section 52(2) of the
Evidence Act

provides:

(2)
A
    report obtained by or prepared for a party to an action and signed by a
    practitioner and any other report of the practitioner that relates to the action
    are, with leave of the court and after at least ten days notice has been given
    to all other parties, admissible in evidence in the action.

[5]

At one point in his examination-in-chief, Dr. Rathbone
    referred to the fact that the second MRI report disclosed the appearance of
    degenerative changes  with secondary trauma. Counsel for Mr. Westerhof
    immediately asked him to please refrain from that and to just state his
    opinion arising from his review of the MRI report.

[6]
Dr. Cividino drafted his report in 2006, several years before the amendments to
    rule 53.03. As such, his report did not include a description of the
    instructions provided by defence counsel, as required by rule 53.03(2.1). A
    copy of defence counsels instructions was provided to plaintiffs counsel
    before cross-examination.

[7]

A fluid membrane lining the joint.

[8]

Dr. Cividino did acknowledge in cross-examination that Mr.
    Westerhof complained of left groin pain at one point during his physical
    examination and that the pain could have been referred from the hip.

[9]

The trial judges original ruling in this regard is not in the
    appeal record. However, Mr. Baker renewed his objection to this form of
    evidence when the witnesses were testifying.