On April 9, 2010, Mr. Justice J.P. Moore held in Beasley v. Barrand that the tort defendant could not call experts retained by the accident benefit insurer to give opinion evidence at trial because their reports did not comply with Rule 53.03.
Just over a year later, another Superior Court judge (Madam Justice MacLeod-Beliveau) has issued a ruling disagreeing with Beasley and finding that Rule 53.03 does not apply to accident benefit assessors where the accident benefit carrier is not a party to the litigation.
Rule 4.1.01, in force since January 1, 2010, imposes on experts an overriding duty to the Court to provide fair and objective evidence:
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,
(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 the expert’s area of expertise; and
(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.
(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged. O. Reg. 438/08, s. 8. [Emphasis added.]
Rule 53.03 imposes requirements regarding the content and delivery of expert reports where an expert is anticipated to give evidence at trial. In force since January 1, 2010, Rule 53.03(2.1) mandates that expert reports contain specific information. Form 53, the acknowledgement of expert’s duty, must also be signed by the expert. Of note, the form contains the following statement:
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]
In Neill v. Filthaut, 2011 ONSC 2165 (April 26, 2011), MacLeod-Beliveau J. found that Rule 53.03 cannot be extended in its applicability to experts engaged by non-parties to litigation, namely, accident benefit assessors. In her reading and interpretation of Rule 53.03, its application is limited to experts engaged by or on behalf of a party. The ultimate purpose of Rule 53.03 is to limit and control the proliferation of experts retained by litigants by imposing on those experts a duty of fairness, objectivity, and non-partisanship to the court, which prevails over any other obligations owed by the expert to a party. The introduction of the new rules about expert witnesses is 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.
In this case, the accident benefit assessors were retained by the accident benefit insurer to complete their assessments and reports. The accident benefit assessors were not retained by a party to the tort action. Those reports did not comply with Rule 53.03 as they failed to contain the entirety of the information required by Rule 53.03(2.1). MacLeod-Beliveau J. held it would be misleading for these expert witnesses to sign the Acknowledgement of Experts’ Duty in Form 53 because they were not engaged to prepare their reports by a party to the litigation.
It would be interesting to know whether MacLeod-Beliveau J. would have found differently if the accident benefit carrier was also a “party” to this proceeding but only the tort defendant wanted to call the AB assessors to testify. Does this ruling mean that plaintiffs will now bring one action against the tort defendant and the AB carrier?
MacLeod-Beliveau J. realised that the existing jurisprudence interpreting Rule 53.03 is in a state of flux and uncertainty. As her decision is squarely at odds with Beasley, an appeal appears to be imminent.
Read the decision on CanLII.