As
a lawyer practicing in litigation for
almost 20 years I have rarely been happier to see a Court of Appeal decision as
I have with the recent decision in Westerhof
v. Gee Estate 2015ONCA 206. A simple 2010 rule change in our Civil Procedure book
blew up to such a mess it took the Court of Appeal, and 5 years of hard fought
battles to sort it out.
In
2010, a new and supposedly harmless form, Form 53. the “Acknowledgement of Expert Duty”
was introduced. Every expert who was to testify at trial had to acknowledge a
duty to the Court to be independent. It was supposed to reduce the use of “hired
gun” experts, and reduce trial time/costs by avoiding cases which turned solely
on a “battle of the experts”. Instead however,
crafty lawyers used the form to prevent
experts from testifying in cases where they wouldn’t , or couldn’t, sign the form.
Common
law rules of evidence and the Ontario
Evidence Act make a clear distinction between fact and opinion evidence and
there are longstanding rules about the admissibility of each. Opinion evidence
could only come from a qualified
expert. The bar to be an expert is low;
there need only be a particular expertise or special knowledge that is beyond
the knowledge of the finder of fact, Judge or Jury. Typically, and for decades,
a medical doctor, rehabilitation nurse, or physiotherapist, with proper
professional credentials would be able to
give “expert” opinions at trial.
Now they might need to also sign this form.
Typically
“hired guns” had no problem signing
these forms, they were paid to do so. Treating medical doctors, such as
surgeons, family practitioners, and physiotherapists would sometimes sign and sometimes
not. They were uncomfortable, they did
not understand the forms, they wanted legal advice. It became impossible for Plaintiff lawyers
like myself, to convince a family doctor to sign the form.
Then at
trial there were further battles about whether only hired guns had to sign form
53. Plaintiff lawyers would argue that a family doctor who has treated an
injured party for 20 years did not need to sign this form before being allowed
to testify. Some Judges agreed, and
others limited the family doctors to discussing the “facts” of their medical
treatment. Sometimes doctors were hired in unrelated matters involving
disability benefits. Were they also required so sign these forms? Again
differing caselaw appeared. More court time was spent fighting over this issue,
What
was intended to help the court process became a real mess for both defendants
and plaintiffs particularly in the personal injury fields. Our trials tend to center
around medical opinion evidence.
And
long last the Court of Appeal has ruled that only hired gun” experts need sign
the form. Back to the good old rules
surrounding opinion evidence that have worked for centuries.
Andrea Girones is a personal injury lawyer in Ottawa, visit her website at www.girones.ca
