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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The Chief Medical Officer of Health for Ontario has issued an updated Directive #2 (dated May 26, 2020) for Regulated Health Professionals in the province.
Pursuant to the updated Directive #2, all deferred non-essential and elective services by health care providers may be gradually restarted – subject to the rest of the requirements set out in the Directive.
The updated Directive #2 does not provide particularly detailed guidance to health professionals on how to proceed, likely because it applies to such a broad spectrum of health care and health professionals. It does, however, provide some principles to assist health care providers in making decisions as we enter this transitional period.
In addition to the mask and hand sanitizer shortages, Ontario’s response to COVID-19 highlights the need for more frontline health care workers. Each regulated health profession’s college responded differently, and we have discussed some of those changes in other posts to keep you apprised.
Today, we focus on the College of Physicians and Surgeons of Ontario (CPSO), who set out to increase the number of available and licenced physicians out on the frontlines through certificates of registration that authorize supervised practice of short duration. The temporary licences authorize practice for 30 days.
Undoubtedly, COVID-19 has affected how health professionals practice. Pharmacists across the country are not only experiencing changes in how they practice (for example, accepting emailed prescriptions, where appropriate) but the scope of their practice as well. The latter change is not permanent, although the disruptions in practice may be felt long after the COVID-19 emergency subsides.
On March 19, 2020, Health Canada issued a short-term section 56(1) exemption under the Controlled Drugs and Substances Act (CDSA) that would authorize pharmacists to prescribe, sell, or provide controlled substances in limited circumstances, or transfer prescriptions for controlled substances (the CDSA Exemption).