Challenges with Opinions from Treatment Providers

Author(s): Darcy R. Merkur

October 23, 2013

All treatment providers must now strictly comply with expert report rules before being able to provide opinion evidence at trial.

While obtaining compliant expert reports from treating health practitioners seems like an easy task, it is not always so, especially when dealing with publically funded providers unaccustomed to writing medical-legal reports and uncomfortable charging fees for doing so.

Until recently, there has been conflicting caselaw on whether the onerous expert report rules applied beyond medical-legal experts hired by a party to the litigation. The Ontario Superior Court in Beasley v. Barrand [2010] CarswellOnt 2172 (S.C.J.), had taken a strict compliance approach to the need for formal expert reports, while a more flexible approach to opinions by non-retained experts was taken by the Ontario Superior Court in McNeil v. Filthaut, 2011 ONSC 2165 (CanLII).

But on June 20th, the Ontario Division Court in Westerhof v. Gee (Estate), 2013 ONSC 2093, concluded that the expert report rules apply to all opinion evidence regardless of the person’s role or involvement in the case.

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