Tag Archives: Acknowledgement of Expert’s Duty

Rule 53.03 – Yet Another Shift in the Criteria for Expert Testimony

When is a treating Doctor an Expert under Rule 53.03? And what constitutes expert opinion?

In Westerhof v. Gee, the Divisional Court considered the requirements which apply to treating health care providers who are asked to give expert evidence in Court on behalf of a patient. The Court also considered what evidence treating health professionals can provide as fact witnesses, and at what point this evidence crosses over into the territory of expert evidence.

Previous lower court decisions, such as McNeill v. Filthaut, Kuznierz v. The Economical Mutual Insurance Company, and Slaght v. Philips), had focussed on the relationship of the health professional with the client to determine whether the health professional was required to comply strictly with Rule 53.03 of the Rules of Civil Procedure.

Rule 53.03 requires experts to prepare a report detailing their experience, area of expertise and outlining their opinion. In addition, Rule 53.03 also requires an expert to sign an Acknowledgment of Expert’s Duty which includes the following paragraph: “I have been engaged on behalf of the plaintiff to provide evidence in the above-noted court proceeding.” Also, an expert must be qualified as to his expertise before he will be permitted to give expert evidence. In the absence of any of these requirements, the expert is not permitted to give expert evidence at trial.

The decisions before the Divisional Court’s decision in Westerhof v. Gee suggested that treating health care professionals were not required to adhere strictly to the requirements of Rule 53.03, whereas experts hired for the purpose of the litigation, or “hired gun” experts were required to meet all conditions of Rule 53.03 in order to be permitted to testify.

In contrast to the earlier decisions Westerhof says that it is the nature of the evidence the expert intends to provide that determines the applicability of Rule 53.03, rather than the expert’s relationship to the Plaintiff.

Justice Thomas Lederer, writing for the Divisional Court concluded:  Continue reading