Canada: Westerhof v Gee Estate: More "Expert" Influence From Ontario

[Note: This post can be viewed as a companion piece to an earlier Bench Press commentary  about the Ontario Court of Appeal decision in Moore v Getahun on expert reports]

Introduction

When is an expert not really an expert? No, it's not a riddle, but a question that the Court of Appeal for Ontario wrestled with in Westerhof v Gee Estate, a recent decision in two personal injury appeals.[1] Justice Simmons, for a unanimous Court, confirmed that certain treating practitioners can provide opinion evidence about a party's medical condition without having to comply with the formalities of a traditional expert report under Ontario's Rule 53.03.

The Nova Scotia Civil Procedure Rules already draw a somewhat similar distinction between expert reports (Rule 55.04) and physicians' treatment narratives (Rule 55.14). The release of Westerhof is a good opportunity to provide a refresher on the applicable principles in this province, and to compare the two approaches.

The ONCA's purposive approach

Ontario's Rule 53.03 combined with Rule 4.1.01—much like Nova Scotia's Rule 55.04—set out extensive criteria for expert reports, including requirements that experts affirm their objectivity; describe their qualifications; explain the assumptions they have made; and acknowledge the limits of their conclusions.

Westherhof was about the extent of Ontario Rule 53.03: Which "experts" have to comply with these detailed requirements?

Briefly, "litigation experts" do have to comply with Rule 53.03, but "participant experts" do not.[2] Participant experts can therefore testify at trial if they have not submitted formal expert reports, although Justice Simmons was careful to mention that their notes and records can be explored through discovery and disclosure.[3]

The labels reveal that the distinction between the two categories is a purposive one:  Litigation experts are so called because they have been retained to provide their opinions for the purpose of litigation. Participant experts, on the other hand, have formed their "opinions based on their participation in the underlying events rather than because they were engaged by a party to the litigation to form an opinion."[4] This category would include ER doctors, treating physicians, and the like (more on this below).

Justice Simmons created the following rule for participant experts:

It is important to underline that both categories of experts are giving opinion evidence; it is how and why they formed their opinion that matters, when it comes to whether they have to comply with Rule 53.03 and submit a formal report.[5]

The Court of Appeal therefore rejected the Divisional Court's attempt to distinguish between fact and opinion evidence for the purposes of Rule 53.03. The Divisional Court had held that factual evidence did not have to follow Rule 53.03, but opinion evidence did.[6] This is a blurry line, according to Justice Simmons: "the term 'fact witness' does not make clear whether the witness's evidence must relate solely to their observations of the underlying facts or whether they may give opinion evidence admissible for its truth."[7]

She confirmed that participant experts are still "experts" of a sort because they may be giving opinion evidence. But there are circumstantial safeguards to this evidence, which make the restrictions of Rule 53.03 less relevant. The participant experts were part of the medical events as they unfolded and made their observations in that context – they are not "outsiders" engaged by one party to provide a litigation-friendly report.

Complementary or contradictory?

Nova Scotia's Rule 55.14 "creates a limited exception to [the] otherwise strict requirements for admitting an expert's report into evidence":[8]

Note that in Ontario, "participant experts" under Westerhof do not necessarily have to be medical doctors. This is a big difference from Nova Scotia, where treatment narratives are explicitly limited to evidence from physicians. Medical practitioners like chiropractors[9] and psychologists[10] are not included and may not provide treatment narratives under this Rule.

Justice Duncan in the leading case of Russell v Goswell considered this issue, and suggested that "what constitutes a treating physician's narrative must be strictly construed" – perhaps indicating a narrower approach for Nova Scotia than Westerhof's for Ontario.[11]

Digging deeper, however, the limited Nova Scotia jurisprudence on this Rule recognizes that narratives are not purely factual and might contain some limited and contextual opinion evidence.[12] In this respect, it seems that Nova Scotia courts have been applying similar purposive reasoning to Westerhof to consider whether the proposed evidence is the kind of opinion that can legitimately be contained in a treating physician's narrative as opposed to an expert's report. (Rule 55.15 permits the party to move for an advance ruling on admissibility of the narrative.)

In Shaw v JD Irving Ltd, Justice Scaravelli allowed a doctor's treatment records to come in under Rule 55.14 even though there were some notes about causation, but not a subsequent report the doctor drafted pending trial in response to "requests from plaintiff's counsel for a medical/legal type report."[13] This purposive analysis meshes well with Westerhof.

In Russell, Justice Duncan held that a doctor's letters to the Section B insurer, and to the plaintiff's counsel, were not treating physician narratives, in part because they strayed "beyond what was done in treatment" into traditional expert-style opinions on the plaintiff's prognosis and causation of her injuries.

Similarly, in Strickey v Strickey, Justice Lynch of the Family Division refused to classify a doctor's letter as a treatment narrative when the first paragraph said it was being written at counsel's request for the purpose of a custody application.[14]

This reasoning is also consistent with the Ontario Westerhof approach.

Conclusion

Westerhof is of course not binding in Nova Scotia and cannot override Rule 55.14. But at the very least, it should help Nova Scotia courts decide whether a proposed treatment narrative fits the purpose of that category—providing medical evidence in a more streamlined and efficient manner—and is not an expert report trying to get in through the back door. However, unless the Nova Scotia Rule is amended, only physicians will likely be able to provide these narratives.

[1] Westerhof v Gee Estate, 2015 ONCA 206.

[2] Westerhof at paragraph 6. The Court also looked at experts retained by non-parties (appropriately called "non-party experts"), like statutory accident benefits insurers in Ontario, and decided that they do not have to submit formal expert reports either, as long as "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" (paragraphs 6, 62).

[3] Westerhof at paragraph 85.

[4] Westerhof at paragraph 6.

[5] Westerhof at paragraph 72.

[7] Westerhof at paragraph 61; italics in original.

[8] Russell v Goswell, 2013 NSSC 383 at paragraph 46, leave to appeal to NSCA refused. Rule 55.14(6) gives some leeway for a treating physician to actually give expert opinion at the trial or hearing if the other party had appropriate notice, and time to hire its own expert and / or prepare for cross-examination.

[9] Gillis v Roy Stutley Plumbing and Heating Ltd, 2011 NSSC 514.

[10] Russell at paragraphs 48-61.

[11] Russell at paragraph 24; emphasis added.

[12] Shaw v JD Irving Limited, 2011 NSSC 487 at paragraph 11.

[13] Shaw at paragraphs 12-13.

[14] Strickey v Strickey, 2014 NSSC 410 at paragraph 15.

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