Expert witnesses are not exempt from Rule 53 based on which category they fall into.

The Ontario Divisional Court has upheld a decision of a Trial Judge whereby he refused to admitted evidence from his treating medical and rehabilitation specialists based on the ruling that they did not meet the requirements under Rule 53.

Justice Lederer, on behalf of the court, acknowledge the existence of a line of cases which stand for the proposition that treating med/rehab witnesses and insurer examination assessors fall into a category of expert witness that are exempt from the requirements under Rule 53.  These cases are McNeil v. Filthaut2011 ONSC 2165 (CanLII), Slaight v. Phillips (May 18, 2010, unreported, Court File No. 109/07) and Kusnierz v. Economical Insurance Company 2010 ONSC 5749.

Justice Lederer rejects these decisions and reverts back to the principles inBeasley v. Barrand 2010 CarswellOnt 2172 (S.C.J); the first decision to deal with the changes to Rule 53.  Justice Lederer finds there is no basis in Rule 53 upon which a witness may rely upon in order to be exempt from the requirements and states at para. 21 as follows:

“The important distinction is not 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.”

This does not mean that a witness who does not comply with Rule 53 is barred from giving evidence. In those circumstances, the witness will be limited to giving fact evidence and cannot provide opinion evidence relating to the cause of the injury, diagnosis and/or prognosis.

It is clear the Court is sending a very strong message and will be standing firm on the requirements under Rule 53.   Lawyers must carefully review all of the medical records and rehabilitation reports well in advance of a pre-trial to ensure that any opinion evidence contained in the reports is being properly put before the Court by a qualified expert who meets all of the requirements of Rule 53.