In last week's blog, we reviewed the general rule as to the non-admissibility of opinion evidence and the exception for expert evidence. We also examined the two-stage test for the admissibility of any expert testimony and the common law duty of an expert to the adjudicative body before which they propose to testify.
In this blog, we will examine the duties imposed on expert witnesses by the Ontario Rules of Civil Procedure (Rules). We will also examine the admissibility of expert evidence from professionals who were not retained specifically for their expert knowledge, but rather those who came to form their opinion in the course of treating a party to the litigation, or other past involvement with the matter at hand.
The Rules were amended in 2010 to add to the duty of an expert “engaged by or on behalf of a party” to provide opinion evidence “in relation to a proceeding” that is fair, neutral and non-partisan and within the expert’s area of expertise (Rule 4.1.01). The amendments (Rule 53.03(2.1)), also specified certain information relating to an expert’s opinion and expertise that must be included in an expert’s report and required that the expert sign an acknowledgement of his or her duty, which identifies the party by or on behalf of whom the expert was engaged (Form 53). Before 2010, the Rules called only for a signature, and address, the expert's qualifications and the substance of the proposed testimony.
Not all experts who may be called to testify were retained in this way. Any of the treating health care professionals or others engaged in one of the parties' past medical history may be called. As they were not retained to provide expert evidence but came to their knowledge through prior treatment or involvement, they do not have to comply with Rule 4.1.01 or Form 53.
The ONCA, in Westerhof v. Gee Estate, held that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with Rule 53.03 where:
Similarly, I conclude that Rule 53.03 does not apply to the opinion evidence of a non-party expert where the non-party expert has formed a relevant opinion based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation.
However, it must be remembered that the SCC in White Burgess held that an expert's lack of impartiality or bias and their independence all go to the admissibility of their evidence, as well as to the weight it ought to be given if admitted. As with all evidence, and especially all opinion evidence, the court retains its gatekeeper function. In exercising that function, a court could, if the evidence did not meet the test for admissibility, exclude all or part of the opinion evidence of a participant expert or non-party expert or rule that all or part of such evidence is not admissible for the truth of its contents.
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In December 2019, Ontario’s Attorney General introduced Bill 161, the Smarter and Stronger Justice Act (the “Act”), which became law on July 8, 2020. The Act hopes to simplify a complex and outdated justice system by bringing changes to how legal aid services are delivered, how class actions are handled, and how court processes are administered.
Of note, the Act has amended the Judicial Review Procedures Act (JRPA) to establish new rules as to when an application for judicial review may be brought.
Any decisions made on or after July 8, 2020 are now subject to a 30-day limit for bringing an application for judicial review unless another Act provides otherwise. Courts, however, retain powers to extend the time for making an application for judicial review if satisfied that there are apparent grounds for relief and that no prejudice or hardship will be incurred by the delay. Before these amendments, the JRPA did not set out any time limits for bringing an application, but courts had powers to extend the time to bring an application if another Act prescribed the limit.
In early August 2020, the Federal Minister of Health granted an exemption under the Controlled Drugs and Substances Act (CDSA) to four terminally ill Canadians to use psilocybin in their end of life care.
Psilocybin is one of the active ingredients/chemicals in “magic mushrooms,” the other is psilocin. Both psilocybin and psilocin are controlled substances under Schedule III of the CDSA. The sale, possession, production, etc. are prohibited unless authorized for clinical trial or research purposes under Part J of the Food and Drug Regulations. Both have been illegal in Canada since 1974. According to Health Canada, there are no approved therapeutic products containing psilocybin in Canada. However, the purified active ingredient, i.e. psilocybin, is being studied in supervised clinical settings for its potential to treat various conditions such as anxiety and depression.