UPDATE: These three decisions are now available on CanLII, here, here and here.

Two days ago, Bruce Mitchell of Windsor sent along some interesting decisions of Madam Justice Darla Wilson, all rendered last month in a case that is now being tried. Her Honour’s three rulings are attached to this post as they have not appeared in CanLII.

The case is Hoang et al. v. Vicentini et al. It is a personal injury action arising out of a motor vehicle accident and is being tried before a jury.

In two of the three attached decisions (the link is at the top of the post), Wilson J. declared mistrials because of improprieties in the opening addresses of counsel. Mr. Mitchell tells us that the trial began again, with a third jury, on January 24 and that the trial is scheduled to continue until March.

While the mistrial rulings are interesting, what caught our attention was one aspect of Justice Wilson’s first decision, rendered on January 10, 2012 (also discussed in her later rulings of January 11 and 17, 2012): can opinion evidence be elicited from witnesses who undertake some official investigation without complying with Rule 53.03 or even s. 12 of the Evidence Act? Is there an “ordinary work” exception that allows opinion evidence to be introduced while circumventing the requirements of the rule and the statute?

Justice Wilson’s ruling

Counsel for the plaintiff moved for leave to call more than three experts at trial and Justice Wilson ruled on which witnesses could be called. (Actually, the plaintiffs’ lawyer sought to go well beyond the three-witness limit of s. 12 of the Evidence Act; he proposed to call a total of 17 experts.)

As she has done before, Justice Wilson expressed her disapproval of the common judicial practice of taking a liberal approach to the admissibility of expert evidence and then addressing shortcomings in that testimony by attaching less weight to it. She quoted with approval observations made by Justice Ducharme in Dulong v. Merrill Lynch Canada Inc. (2006), 80 O.R. (3d) 378 (S.C.J.), where His Honour said:

There is no question that, in civil cases, at least, the path of least resistance in matters such as these seems to be to admit the evidence and then compensate for any of its weaknesses by attaching less weight to the opinion. But such an approach is an abdication of the proper function of the trial judge and was explicitly rejected by Binnie, J. in R. v. J-L.J…

One of the witnesses whom the plaintiffs’ lawyer wanted to call was a mechanic, employed by the investigating police force, who had inspected the defendant’s vehicle after the collision. The following three paragraphs from Justice Wilson’s reasons describe the proposed testimony and her decision to exclude it:

[14] Counsel for the Plaintiff wishes to elicit opinion evidence from Mr. Grisolia, the police mechanic who filled out a vehicle mechanical examination in the course of his duties on August 9, 2004. The two page form that was completed identifies Mr. Grisolia’s findings but does not set out any opinion. Mr. Grisolia noted on the form that the front calipers sliders seized [unsatisfactory] and the friction material [unsatisfactory]. He does not describe the effects of the two items he deemed unsatisfactory nor does he comment on the function of the brakes themselves. Counsel for the plaintiffs concedes this point, but submits that in speaking with the officer in preparation for trial, he was advised of Mr. Grisolia’s opinion on the brakes of the Vicentini car. After learning this, counsel sent a brief synopsis of the evidence of Mr. Grisolia, including his opinion on the function of the brakes. Counsel for the Plaintiffs argued that Mr. Grisolia has evidence that is relevant and material to the issues in this lawsuit and there is no other way to get that evidence before the Court other than to have him testify and state his opinion.

[15] I do not agree. The Rules of Civil Procedure have very specific provisions for the inclusion of expert testimony at trials and the 2010 amendments to the provisions governing expert reports provide for more stringent requirements before an expert is permitted to testify. No report from Mr. Grisolia that complies with Rule 53.03 has been tendered and there is no evidence before me of any attempts made by the solicitor for the Plaintiffs to secure an opinion from Mr. Grisolia on the brakes on the Viscentini [sic] car in a form of a report that complies with Rule 53. There is nothing in the document that he completed in 2004 that sets out his opinion. What he has done is to examine the various items listed on the document and tick off the appropriate box to indicate whether the component met the Ministry standards or not. I do not say this in a critical fashion; this is the document that Mr. Grisolia is required to fill out by the police when he inspects a vehicle that has been involved in a collision. The document, however, is deficient in terms of providing the minimum information that is contemplated by Rule 53 for expert reports. I have no information as to what qualifications Mr. Grisolia has, apart from the fact that he was employed by the police to do mechanical inspections of vehicles. I do not know if he has the proper qualifications to even permit him to be qualified us an expert at trial.

[16] In my view, on the basis of the document he completed on his inspection of the vehicle, I am not prepared to permit him to give expert testimony at this trial. To do so, in my opinion, would contravene the requirements of Rule 53 and would flout the reasoning giving rise to the amendments to the Rules governing expert evidence. The fact that the solicitor for the Plaintiff has provided a synopsis of his expected testimony does not, in my mind, get around the problems with Mr. Grisolia offering an expert opinion to this Court. Furthermore, no unfairness to the Plaintiffs will result as a consequence of my ruling. Counsel has retained an engineer who has delivered a report that complies with Rule 53 and he, presumably, will testify on the liability issues. On the other hand, to permit Mr. Grisolia to testify at this trial and to provide his opinion on the function of the brakes on the Viscentini [sic] vehicle at the time of the collision would be manifestly unfair to the defendants Viscentini [sic] and Ford Credit when the performance or the brakes has not been an issue in this lawsuit and no expert has opined on this to date.

In her later (January 17, 2012) mistrial ruling, Justice Wilson provided more information about the Grisolia form:

[4] [T]he Plaintiffs sought leave to call the police mechanic, Sergio Grisolia (“Grisolia”), who examined the Vicentini vehicle after the collision and filled out a two page form, which is found at tab 12 of Exhibit A in this trial. That document, dated August 9, 2004, contains a list of examination results for the various parts of the vehicle, including brakes, steering and tires. There are five columns next to the various items and the examiner can tick off whether the part in question was satisfactory or unsatisfactory. Identified as unsatisfactory in the brakes section are the friction material and the mechanical components, specifically that the “front calipers sliders seized”. The balance of the brake items are noted as satisfactory. None of the boxes indicating whether the defect existed prior to collision are marked.

Discussion

Fact or opinion?

A number of interesting issues arise from this part of Justice Wilson’s decision. First of all, was the proposed witness Grisolia really being tendered as an “expert”, so as to engage the requirements of Rule 53.03? The Rules of Civil Procedure do not define “expert”. However, s. 12 of the Evidence Act, which Justice Wilson quoted in her reasons, describes them as “persons entitled, according to the law or practice, to give opinion evidence”.

It is perhaps not entirely clear from her January 10, 2012 reasons alone, but it appears that Wilson J. did not prevent the plaintiffs from calling Grisolia as a witness at all. At paragraph 36 of her January 17, 2012 reasons, declaring the second mistrial, Her Honour said that “Grisolia can only testify about his findings, he will not be permitted to offer an expert opinion on the effect of his findings on the functioning of the brakes on the Vicentini vehicle. He will not be allowed to hypothesize to the jury on what the possible effects might be of the findings on the two items he identified as not meeting the Ministry standards”. And at paragraph 41 of the same reasons, she said, “as a result of my ruling on the ambit of Grisolia’s evidence, he will not be permitted to testify beyond the findings noted on the document he completed.”

Thus, it seems that no objection was being taken to Grisolia testifying as to the observations about the calipers and friction material that were noted on the form that he completed. However, it appears that counsel for the plaintiff wanted to have the witness go further and express an opinion about the role that the brakes played in the accident and that this was the basis of the defence objection that was upheld by the trial judge.

Justice Wilson said of the two-page form completed by the witness, that it “identifies Mr. Grisolia’s findings but does not set out any opinion”. She seems to have been content to have him provide the evidence contained in his form, but not to go further. In other words, Grisolia was being allowed to testify as a fact witness. Even though Grisolia had concluded that, with respect to the calipers and the friction material, the brakes of the defendant’s vehicle were “unsatisfactory”, this presumably involved merely making certain observations about the condition of the brakes and then comparing the findings with Ministry guidelines and so, was not really a subjective assessment on his part.

(Admittedly, even this is not completely clear because in her January 11, 2012 reasons, Justice Wilson said, “I specifically ruled that the mechanic Grisolia would not be entitled to express an expert opinion on the condition of the brakes and the issue of causation.”)

There was a significant issue in the case as to whether the plaintiffs ought to be permitted to suggest to the jury that faulty brakes had played a part in the collision at all, given that none of the acknowledged accident reconstruction experts, including their own, had expressed such an opinion. Justice Wilson ruled that the plaintiffs could not do so. And in fact, it was largely because counsel for the plaintiffs kept returning to the condition of the brakes in his opening addresses, that Justice Wilson declared mistrials. At paragraph 32 of her January 17, 2012 reasons, she said:

What Mr. MacDonald has done in his opening remarks is to invite the jury to find that the condition of Vicentini’s brakes played a role in the occurrence of the accident. There is no evidence to support this contention and as such, it is highly improper. The circumstances of the accident giving rise to this claim have been investigated by numerous experts, including engineers and human factors experts retained by the plaintiff and the defence. Nowhere in any of the reports, including the police investigation and police reconstruction report, is there any suggestion that the brakes on the Vicentini car had any effect on the occurrence of the accident.

Given these observations, how would Grisolia’s evidence about the brakes (even without any opinion being expressed by him) have been relevant to any issue that could legitimately be argued before the jury? It should be noted that the plaintiffs had pleaded, in their statement of claim, that “the brakes were not in proper working order”. So, the condition of the brakes had certainly been placed in issue in the pleading. However, it was apparently the lack of any expert testimony to support the allegation that led Justice Wilson to rule that it had been improper for plaintiffs’ counsel to suggest, in his opening, that the condition of the brakes “played a role in the occurrence of the accident”. If such a suggestion was indeed improper, then how would Grisolia’s evidence (even limited to testifying about his completion of the form in which he had said that the calipers and friction material were “unsatisfactory”) have been material? On this basis, ought not Grisolia’s evidence to have been excluded altogether?

Applicability of Rule 53.03

Justice Wilson’s decision not to allow Grisolia to give opinion evidence was strongly influenced by the fact that no report from Grisolia had been provided to the defence pursuant to the provision of Rule 53.03. (She also questioned whether Grisolia had the requisite expertise to be qualified as an expert witness.)

This raises an issue on which we have commented before: to what extent, if at all, does Rule 53.03 apply to expert witnesses who have not been retained by either party? Let us assume that Grisolia was qualified to give expert testimony in this case (although, as Justice Wilson observed, this was not established). Would the failure to have provided a report pursuant to Rule 53.03 have prevented him from being called?

Madam Justice MacLeod-Beliveau found, in McNeill v. Filthaut, 2011 ONSC 2165 (CanLII), that “the requirements outlined in Rule 53.03, as they relate to expert witnesses, do not apply to individuals retained by non-parties to the litigation”. (In that case, the issue was whether reports were required in a tort action from experts retained by an accident benefits insurer.)

“Ordinary work” opinion evidence

Since then, the McNeill decision has been referred to in cases arising out of other circumstances. Some of these cases go a step beyond allowing expert testimony notwithstanding non-compliance with Rule 53.03. They get around the requirements of the Rule by treating the witness giving the opinion as a fact witness.

In Brandiferri v. Wawanesa Mutual Insurance, et al., 2011 ONSC 3464 (CanLII), a fire insurance dispute, Justice Lauwers had to decide whether to admit testimony from an “insurance restorator” who had been retained by the plaintiff insureds who wanted him to testify as to the estimated cost of remediating their home following a fire. Justice Lauwers refused to permit the witness to testify as an expert (largely because of perceived bias, as the witness had a financial interest in the outcome of the trial). However, His Honour did let the restorator testify as a fact witness. He said that the witness had been doing “his ordinary work” in preparing an estimate of remediation costs “and can testify as to the opinions he formed that are relevant to that ordinary work”. He cited the McNeill case, as well as two decisions of D.S. Ferguson J.:

In Hall v. Kawartha Karpet & Tile Co. 2007 CanLII 46915 (ON SC), 2007 CanLII 46915, [2007] O.J. No. 4293 (S.C.) (D.S. Ferguson J.), the witness was an assistant fire chief who attended at the scene of the fire, assisted in commanding the firefighters and then conducted an investigation of the origin and source of the fire. He prepared a one-page standard occurrence report which plainly did not satisfy the requirements of rule 53.03. The plaintiffs sought to call the assistant fire chief as a witness and elicit opinion evidence from him. The defendants objected because of the failure to comply with rule 53.03.

[38] Ferguson J. said at paras. 6, 7 and 12:

6    In my view Rule 53.08 was intended to apply to persons with special expertise who are retained by a party to assist in litigation. I appreciate that there is a chicken and egg analysis here and that one could argue that the rule should apply to anyone whom the court finds qualified to provide opinion evidence and that leave should be granted where it may be impractical to comply with the rule. However, I think a consideration of all the circumstances favours the conclusion that the rule does not apply here at all.

7    The purpose of the rule was stated in Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham, 51 O.R. (3d) 97 (C.A.) at para. 38:

… the purpose of the rule, … is to facilitate orderly trial preparation by providing opposing parties with adequate notice of opinion evidence to be adduced at trial.

12 In addition, a witness who has been involved in the history of a matter might well not be qualified to be an expert under Rule 53.08 because the witness is not independent. For example, the expert witness in a malpractice case who had some role in the history (for example, an anaesthetist who witnessed the surgery performed by a defendant surgeon) might be a colleague of the defendant professional or even his or her partner. A number of cases have now established that an expert has a duty to the court and must provide “independent” opinion rather than just a “hired gun” opinion for the purpose of assisting the party who retained him or her: Ferguson, Ontario Courtroom Procedure, LexisNexis, 2007, at p. 930 ff. Consequently, the case law indicates that where a person with expertise may have knowledge or an opinion about a case, that person should not be considered an expert witness in this sense. This tends to suggest that such a witness would not fall under Rule 53.08.

[39] A similar approach has been taken by Turnbull J. in Slaght v. Phillips and Wicaartz, May 18, 2010, Simcoe Ontario, 109/07:

I am not aware of any exclusionary rule that would be offended by the admission of the opinion offered by Ms. Malacaria, particularly in light of the fact that we can consider her as essentially a treating expert witness. In other words, she is giving opinions based upon her work with the plaintiff as opposed to being hired as a litigation expert who has not had any involvement with either party in the litigation.

[40] Turnbull J. relied on the decision of D.S. Ferguson J. in Burgess (Litigation Guardian of) v. Wu 2003 CanLII 6385 (ON SC), (2003), 68 O.R. (3d) 710, [2003] O.J. No. 4826 (S.C.) where a distinction was drawn at para. 80 between the “treatment opinions” created by a treating physician and “litigation opinions” formed by experts hired for the purpose of litigation. Turnbull J. and Ferguson J. both found that rule 53.03 applies only to the latter.

[41] The conclusion that rule 53.03 is meant to apply only to litigation experts was adopted by MacLeod-Beliveau J. in McNeill v. Filthaut,
2011 ONSC 2165 (CanLII), 2011 ONSC 2165, [2011] O.J. No. 1863 at para. 44:

44  Respectfully, I disagree with my learned colleague. In doing so, I am mindful that consistency in the decisions of this court is preferred, and that my decision conflicts with J.P. Moore J.’s decision in Beasley v. Barrand. I cannot find, as he did, that Rule 53.03 can be extended in its applicability to experts engaged by non-parties to litigation, namely, accident benefit assessors. In my 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.

[42] Looking at the mischief that rule 53.03 was intended to address, I do not find Mr. Jones to be a typical “hired gun” or just a litigation expert in this case.

(There is disagreement among the judiciary as to whether Rule 53.03 applies to experts who have not been retained by the parties to the litigation. The leading case in favour of applying the Rule to non-litigation experts is Beasley v. Barrand, 2010 ONSC 2095 (CanLII), a decision of Justice J. Patrick Moore. It was this decision with which Justice MacLeod-Beliveau expressly disagreed in McNeill.)

In Grigoroff v. Wawanesa Mutual Insurance Company, 2011 ONSC 2279 (CanLII), Justice Darla A. Wilson agreed with Moore J., holding that before experts retained by accident benefits insurers testify in a tort action, they “should” comply with Rule 53.03. However, the decision of Justice MacLeod-Beliveau in McNeill had not yet come out and would be released later the same month.

So, there remains uncertainty as to whether compliance with Rule 53.03 is required in the case of experts who have not been retained by one of the parties to the lawsuit. This issue needs to be addressed by an appellate court.

However, on the view articulated in McNeill, Hall and Brandiferri, it would probably not have been necessary for plaintiffs’ counsel in Hoang to deliver a Rule 53.03 report before calling Grisolia as an expert. Indeed, it is not even clear, under this approach, that Justice Wilson’s other concern—whether Grisolia could be qualified to give expert testimony—should have stood in the way of him testifying. Arguably, he could have been treated in the same way that Justice Lauwers dealt with the restorator in Brandiferri, by allowing him to testify as a fact witness but to provide his opinions nevertheless, on the basis that he was doing “his ordinary work” in preparing an estimate of remediation costs “and can testify as to the opinions he formed that are relevant to that ordinary work”.

These sorts of witnesses, who form opinions while doing their “ordinary work”, exist in all sorts of contexts. Police officers routinely undertake accident reconstructions in car accident cases. Officials with the Technical Standards and Safety Authority investigate oil spill incidents and provide opinions as to the cause of the spills. Family physicians form opinions and conclusions about a patient’s condition and his or her prognosis. If, in each of these instances, the witness is able to testify as a fact witness with respect to opinions formed in the course of performing his or her “ordinary work”, then this constitutes a fairly significant loophole to the requirements of Rule 53.03.

We aren’t taking one side of this debate or the other (not today, at least). We’re just suggesting that it might have been possible to place the opinion evidence of police mechanic Grisolia before the jury in Hoang, without complying with Rule 53.03. And that this area of the law is in some need of clarification, either from the appellate courts or from the Civil Rules Committee.