Court File and Parties
COURT FILE NO.: 14-61439
DATE: 2021/03/31
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MELONIE HIGASHI Plaintiff
– and –
ANDREA CHIAROT and GUY CHIAROT Defendants
Counsel: Joseph Y. Obagi and Adam J. Aldersley, for the Plaintiff Pasquale Santini and Mitchell Kitagawa, for the Defendants
HEARD: March 15, 2021
REASONS FOR RULING
m. smith j
[1] This motor vehicle accident trial began on March 15, 2021. At the outset of trial, the parties sought a ruling on the following issue: Does s. 12 of the Evidence Act, R.S.O. 1990, c. E.23 (“section 12”) apply to participant experts and to non-party experts?
[2] The Plaintiff plans on calling four litigation experts and two participating experts to give viva voce opinion evidence. The Plaintiff is not yet bringing a Motion seeking leave under section 12 of the Evidence Act to call more than three such witnesses.
[3] In addition, the Plaintiff seeks to file medical reports, treatment plans and clinical notes and records from various doctors and health care professionals, pursuant to s. 52 of the Evidence Act (“section 52”). There are 97 tabs in the Plaintiff’s proposed section 52 Medical Reports Brief.
[4] On March 19, 2021, I delivered my oral ruling with written reasons to follow.
[5] For the reasons set out below, I find that section 12 is limited to litigation experts only.
POSITIONS OF THE PARTIES
The Plaintiff
[6] The Plaintiff argues that section 12 applies to litigation experts and to non-party experts. An example of a non party-expert is a physician who is retained by an insurer to conduct an independent medical assessment within the context of a statutory accident benefits claim.
[7] The Plaintiff submits that the rationale behind the filing of a report under section 52 is to avoid having numerous health care practitioners testify unnecessarily. If the other party is concerned regarding the filing of the report, they can summons the expert for cross-examination. If the Court subsequently finds that the expert’s testimony was not required at trial, then there is a corresponding costs penalty.
[8] The Plaintiff says that unlike litigation experts and non-party experts, participant experts form their opinion in the course of treatment. The participant experts form the foundation for which the litigation experts and non-party experts opine. As long as the participant expert’s opinion does not go beyond the scope of an opinion that was formed in the ordinary course of treatment, they are not caught by section 12.
[9] Practically speaking, it is argued that if section 12 captures all participant experts, every single trial would open with a Motion for leave, which would increase the costs and the complexity of trials.
The Defendants
[10] The Defendants say that section 12 covers all types of experts.
[11] They submit that the Plaintiff seeks to call 6 litigation experts, 12 participant doctors, and 14 participant health care experts, many of whom have overlapping areas of expertise. In comparison, the Defendants propose to call three litigation experts.
[12] The Defendants say that section 52 allows a party to file an expert report instead of calling the expert to testify viva voce. It therefore stands to reason that because the filing of reports is the same as the calling of witnesses, these reports should be included within the three expert limitation contained in section 12.
[13] The Defendants submit that there has been a culture shift in civil litigation. To support that claim, they rely upon the Supreme Court of Canada’s decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, where it was said that change is necessary to create an environment that promotes timely and affordable access to justice: at para. 2. The trend in the case law is such that the piling on of experts is no longer acceptable. It is necessary to limit the duplication of expert testimony, and to eliminate unnecessary evidence which increases the costs of litigation.
ANALYSIS
Legislation
[14] Section 12 and section 52 read as follows:
Expert evidence
12 Where it is intended by a party to examine as witnesses persons entitled, according to the law or practice, to give opinion evidence, not more than three of such witnesses may be called upon either side without the leave of the judge or other person presiding. R.S.O. 1990, c. E.23, s. 12.
Reports and evidence of practitioners
Definition
52 (1) In this section,
“practitioner” means,
(a) a member of a College as defined in subsection 1 (1) of the Regulated Health Professions Act, 1991,
(b) a drugless practitioner registered under the Drugless Practitioners Act,
(c) a person licensed or registered to practise in another part of Canada under an Act that is similar to an Act referred to in clause (a) or (b). R.S.O. 1990, c. E.23, s. 52 (1); 1998, c. 18, Sched. G, s. 50.
Medical reports
(2) A report obtained by or prepared for a party to an action and signed by a practitioner and any other report of the practitioner that relates to the action are, with leave of the court and after at least ten days notice has been given to all other parties, admissible in evidence in the action. R.S.O. 1990, c. E.23, s. 52 (2).
Entitlement
(3) Unless otherwise ordered by the court, a party to an action is entitled, at the time that notice is given under subsection (2), to a copy of the report together with any other report of the practitioner that relates to the action. R.S.O. 1990, c. E.23, s. 52 (3).
Report required
(4) Except by leave of the judge presiding at the trial, a practitioner who signs a report with respect to a party shall not give evidence at the trial unless the report is given to all other parties in accordance with subsection (2). R.S.O. 1990, c. E.23, s. 52 (4).
If practitioner called unnecessarily
(5) If a practitioner is required to give evidence in person in an action and the court is of the opinion that the evidence could have been produced as effectively by way of a report, the court may order the party that required the attendance of the practitioner to pay as costs therefor such sum as the court considers appropriate. R.S.O. 1990, c. E.23, s. 52 (5).
Caselaw
[15] In my view, the analysis should begin with the Court of Appeal for Ontario’s seminal decision in Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721, leave to appeal refused, [2015] S.C.C.A. No. 198. This case provides, inter alia, clarity around the role of experts. In that case, the Court drew a distinction between experts who are retained for litigation purposes (“litigation experts”) and those experts who have formed an opinion for non-litigation purposes (“participant experts” or “non-party experts”). In relation to the issue at hand, the relevant takeaways of the Westerhof decision are:
a. Participant experts or non-party experts can give opinion evidence: at paras. 60-62.
b. Litigation experts are engaged by a party to provide opinion evidence in relation to the proceeding: at para. 79.
c. Treating physicians are permitted to testify regarding treatment opinions without complying with r. 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”): at paras. 60-61, 70 and 73.
d. Rule 53.03 was not intended to apply to participant experts and non-party experts: at para. 14.
e. Compliance with r. 53.03 is not required where the opinion evidence is given by a witness that has a special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation: at para. 60.
f. Participant experts and non-party experts must proffer opinion evidence that was formed during the course of treatment or observed for purposes other than the litigation: at para. 62. Otherwise, the Court may require compliance with r. 53.03: at para. 63.
[16] With these principles in mind, I will review how the caselaw has developed throughout the years. I have considered all of the caselaw relied upon counsel but find the following to be the most pertinent to the issue before me.
Marsland v. Nochez, 1995 CarswellOnt 1360 (Gen. Div.)
[17] The plaintiff proposed to call five medical experts regarding the plaintiff’s back problem. Three of the experts were to give similar evidence. For this reason, the Court found that the plaintiff would be limited to three experts: at para. 3.
[18] The Court then commented, at para. 5, on the effects of a section 52 report and found that it was not caught by section 12:
That having been said however, it seems to me that section 12 specifically confines itself to a party who wishes to examine as witnesses, persons entitled to give opinion evidence and does not refer to counsel introducing that report into evidence. It seems to me that had the section intended to also include introduction of the report, it could very easily have done so. It could have simply said, where it is intended by a party to examine as witnesses or to introduce their report into evidence, pursuant to section 52 of this Act, etcetera, etcetera. It does not do so, and I find that I am bound by the specific wording of the Act to apply the section to where a party wishes to examine as witnesses, persons entitled to give opinion evidence. In that case, although I am not giving the plaintiff leave to call more than three expert witnesses with respect to this back injury or the back problem of the plaintiff, I am not limiting the plaintiff to the extent of not allowing the plaintiff to introduce the reports of any of the other doctors, including the other orthopedic surgeons. [Emphasis added.]
Igbokwe v. Price, 2003 CarswellOnt 1990 (S.C.)
[19] The plaintiff sought leave under section 12 to call more than three expert witnesses. The defendant objected to the number of psychiatrists and psychologists (five in total) who would testify. The Court found that each of the proposed witnesses would be giving similar evidence and found that it was “sufficient overkill to engage the provisions of section 12”: at para. 4. Therefore, the Court only permitted the plaintiff to call three experts to testify as to the plaintiff’s psychiatric and psychological health: at para. 6.
[20] In regards to the interplay between section 12 and section 52, the Court wrote, at para. 10: “It may well be that there might be situations in which a trial judge could refuse to grant leave under section 12 but grant leave to file a written report under section 52 particularly if the trial will not be thereby unduly lengthened.”
Hall v. Kawartha Karpet & Tile Company Limited, [2007 CanLII 46915](https://www.canlii.org/en/on/onsc/doc/2007/2007canlii46915/2007canlii46915.html) (Ont. S.C.)
[21] In this case, the Court was asked to decide whether r. 53.03 applied to a person with expertise who was involved in the history of the matter or whether it was limited to experts retained by a party.
[22] The matter involved a fire loss. The plaintiff wished to call the assistant fire chief as a witness and elicit opinion evidence from him. In deciding that r. 53.03 did not apply, the Court offered this explanation, at para. 10:
Section 12 of the Ontario Evidence Act limits to three the number of experts a party can call without leave. That statute does not define the term ‘expert’. However, I do not think anyone would suggest that a person who was involved in the history of the matter in the normal course should be included in the maximum of three. For instance, if the action were a professional negligence case against an engineer I do not think anyone would suggest that the defendant engineer was to be counted as one of the three permitted experts. Similarly, if the action involved a personal injury I don’t think anyone would suggest that a physician who had treated the plaintiff in the normal course, say in the emergency department of a hospital, should be counted as one of the three permitted experts. [Emphasis added.]
[23] The Court added that r. 53 was not intended to apply to witnesses where a party could not be expected or even able to comply with the requirements of the rule: at para. 13.
Davies v. The Corporation of the Municipality of Clarington, [2016 ONSC 1079](https://www.canlii.org/en/on/onsc/doc/2016/2016onsc1079/2016onsc1079.html), 95 M.V.R. (6th) 231
[24] This was a personal injury case where the sole issue was damages. The trial had consumed 10 weeks of court time, with a further 8-10 weeks needed to complete the trial. The plaintiff had 18 litigation experts and 18 participant experts.
[25] The defendants sought a ruling on the interpretation of Westerhof as it pertains to participant experts and whether their opinions are caught by section 12.
[26] The Court noted that the policy behind section 12, namely limiting the proliferation of experts, has existed for nearly 100 years: at paras. 30-31. At para. 31, the Court reaffirmed that leave is to be granted “only where the time and expense involved in calling more than three experts is justified”.
[27] The Court pointed out that section 12 was never intended to be used to allow duplicative evidence: at para. 35.
[28] The Court clearly concluded that leave was not required, at para. 40:
The plaintiff does not have to seek leave to call, as a participatory expert, any of the plaintiffs treating doctors to the extent their evidence relates to the history taken from the plaintiff; the treatment afforded the plaintiff; the diagnosis of the doctor; and the doctor's prognosis as revealed in his clinical notes. To the extent a doctor proceeds to offer opinion evidence, along the lines set forth in the report of Dr. Baranowski, the plaintiff will have to seek leave to call that evidence if the plaintiff also intends to call the evidence of a litigation expert in the same specialty. In short, the plaintiff and the defendants will be limited to one expert per specialty unless leave is first sought from the court. [Emphasis added.]
McNamee v. Oickle, [2020 ONSC 432](https://www.minicounsel.ca/scj/2020/432)
[29] The plaintiffs sought an order under section 12 granting them leave to call more than three experts at the trial. In applying the factors for granting leave, as set out in K.N.B. v. Wu, 2005 CanLII 5874 (Ont. S.C.), the Court limited the number of experts who could testify.
[30] Citing the Davies decision, the Court reviewed the policy behind section 12 and noted that this section was enacted well before the Court of Appeal for Ontario had made a distinction between the various types of experts in Westerhof: at paras. 12-18.
[31] The Court rejected the plaintiffs’ argument that section 12 pertained only to litigation experts, commenting that in Davies, no distinctions were made between litigation experts and participant experts: at paras. 14-15.
The Osborne Report
[32] In 2007, the former Associate Chief Justice of Ontario, the Honourable Coulter Osborne, Q.C., delivered a report entitled Civil Justice Reform Project: Summary of Findings & Recommendations (Toronto: Ontario Ministry of the Attorney General, 2007) (the “Osborne Report”). There were numerous areas of reform identified, but the one that is the most important for our purposes deals with Expert Evidence: at pp. 68-84.
[33] Justice Osborne suggested that changes are necessary to address: (1) new mechanisms to control the proliferation of experts; (2) the time for delivery of expert reports; and (3) greater disclosure of the information upon which the expert’s opinion is based: at p. 70.
[34] In reviewing section 12, the Osborne Report commented that in some cases, such as in personal injury trials, leave may be required. At p. 68, the Osborne Report says: “In those actions it is frequently necessary to call more than three doctors. In addition, actuarial evidence is often required where there are future loss claims. Many personal injury claims raise ‘level of care’ and more general ‘future care’ cost issues. It is difficult to contemplate a serious personal injury case being presented (or defended) without more than three expert witnesses.”
[35] At p. 74, the Osborne Report concluded that section 12 has not been effective in controlling the proliferation of experts and its associated costs:
Section 12 of the Evidence Act seeks to limit the number of experts (to three), but with a balancing mechanism (leave from the trial judge to call more than three experts) that recognizes that more than three experts may reasonably be required in some cases. The problem is that, in practice, s. 12 is ignored by counsel and the courts. In addition, costs relating to an expert will have already been incurred before the trial judge deals with leave for more than three experts or with the issue whether any expert evidence on a particular issue is admissible. Thus, s. 12 does not appear to me to be effective in controlling the number of experts or costs related to experts. [Emphasis added.]
[36] The Osborne Report then goes on to address the concerns regarding the developing trend of the use of experts as “hired guns”. At pp. 75-76, Justice Osborne writes:
The issue of “hired guns” and “opinions for sale” was repeatedly identified as a problem during consultations. To help curb expert bias, there does not appear to be any sound policy reason why the Rules of Civil Procedure should not expressly impose on experts an overriding duty to the court, rather than to the parties who pay or instruct them. The primary criticism of such an approach is that, without a clear enforcement mechanism, it may have no significant impact on experts unduly swayed by the parties who retain them.
An expressly prescribed overriding duty to provide the court with a true and complete professional opinion will, at minimum, cause experts to pause and consider the content of their reports and the extent to which their opinions may have been subjected to subtle or overt pressures. Matched with a certification requirement in the expert’s report, it will reinforce the fact that expert evidence is intended to assist the court with its neutral evaluation of issues. At the end of the day, such a reform cannot hurt the process and will hopefully help limit the extent of expert bias. [Emphasis added.]
[37] Justice Osborne recommended amending section 12, adopting a new provision in the Rules or the Evidence Act to establish an expert’s duty to assist the court and modifying the time for the delivery of the expert reports: at pp. 82-84.
Discussion
[38] The issues raised in the Osborne Report regarding expert evidence were not geared towards participant experts or non-party experts. A concerning trend was developing with respect to the hiring of experts and the costs associated with retaining such experts. At times, civil litigation had become an expensive competition involving a battle of the experts, and that reality had to be addressed. As the Osborne Report indicated, section 12 was being underutilized as a tool to limit the number of litigation experts permitted to testify. The Osborne Report identified this problem as one that was linked to litigation experts. Recommendations were therefore made to correct this evolving problem related to the hiring of experts.
[39] In Westerhof, the Court of Appeal for Ontario referred to the Osborne Report and commented that this report was not intended to address participant experts or non-party experts: at paras. 77 and 79. The Court went on to say that the discussion regarding reform related to litigation experts and not the other types of experts, “whose evidence is relevant because of their observation of or participation in events underlying the litigation”: at para. 79.
[40] None of the discussions and/or recommendations made in the Osborne Report regarding the proposed amendments to section 12 and the Rules applied to participant and non-party experts. In my opinion, this supports the proposition that section 12 relates only to litigation experts.
[41] Further, I believe that there are fundamental and critical differences between the experts who are caught under section 12 and those who are intended to fall under section 52. These sections exist for different purposes and relate to different types of experts.
[42] It has often been said that section 12 has been created to limit the proliferation of experts. Although the word “expert” is not defined in this section, I find that with the evolution of expert evidence rules in the jurisprudence and the changes to the Rules, it has become much clearer that it was meant for litigation experts only, namely those experts who are retained by the parties solely for litigation purposes. Strict parameters needed to be created for these litigation experts because of the identified issues surrounding “hired guns” and the ever-increasing costs of litigation. The 2010 amendments to the Rules required that litigation experts meet the criteria set out in r. 53.03. These changes were meant to alleviate some of the concerns raised by Justice Osborne when dealing with experts who were hired by a party. Timelines for the delivery of litigation expert reports were modified to a 90-day notice period before the pre-trial conference, providing sufficient advance notice to the other party and promoting settlement discussions.
[43] In contrast, section 52 is focused primarily on trial efficiency regarding the use of medical records and medical reports. This section exists to provide a cost-effective mechanism to the parties for introducing these types of documents into evidence, all while ensuring that they are dealt with in the most expeditious manner. Section 52 pertains to non-litigation experts who are no strangers to the dispute. Their involvement is independent to the litigation. They are acquainted with the circumstances of the case and section 52 allows the admission of their opinion evidence as an alternative to oral testimony. Notice provisions under this section are significantly different (10 days’ notice before trial), and there are cost consequences if a party unnecessarily demands that the expert be called to give oral testimony.
[44] In terms of the jurisprudence, I find that it has been fairly consistent when it comes to the distinction between experts and the applicability of section 12. I adopt the Court’s reasoning in the cases of Hall and Davies. In both these matters, it was determined that participant experts are not required to seek leave pursuant to section 12.
[45] Regarding non-party experts, I do not accept the Plaintiff’s submission that they are litigation-type experts who fall within the scope of section 12. In my opinion, if the expert’s report exists independently of and disconnected from the litigation, then this expert is not a litigation expert.
CONCLUSION
[46] Considering the findings and recommendations set out in the Osborne Report, the jurisprudence and the amendments to the Rules, I conclude that section 12 applies only to litigation experts.
[47] This decision is not to be interpreted to mean that carte blanche is to be given in the calling of litigation experts, participant experts and non-party experts. I agree with Counsel for the Defendants when he says that there has been a culture shift. The piling on of experts is no longer acceptable. Trials are expensive to run and one of the trial judge’s gatekeeper functions is to make sure that the trial is conducted in the most expeditious, least expensive and fair manner. This includes ensuring that the evidence is not duplicative.
[48] As such, I would ask counsel to consult one another regarding the proposed calling of litigation experts as well as the participant and non-party experts in relation to their section 52 medical reports. In doing so, consider Edwards J.’s comments in Davies in which he said the following at para. 27 of his decision: “Will their evidence add anything to what may already be before the court, or is it simply duplicative and for want of a better expression, is it an example of ‘piling on’”.
[49] I would like to thank all counsel for their helpful and comprehensive written and oral submissions.
Justice Marc Smith
Released: March 31, 2021
COURT FILE NO.: 14-61439
DATE: 2021/03/31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MELONIE HIGASHI Plaintiff
– and –
ANDREA CHIAROT and GUY CHIAROT Defendants
REASONS FOR RULING
Justice Marc Smith
Released: March 31, 2021