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Expert Evidence in a Personal Injury Case (Ontario)

Personal Injury, Long Term Disability and Car Accident cases across Ontario are built upon EVIDENCE. Our legal system doesn’t play out in such a way as a Plaintiff makes a claim, yells a lot that they’re entitled to compensation, and then they get what they want. If Courts worked that way, those with the loudest voices would always win. In order for your case to succeed, you need evidence.

Evidence can’t be made up or fabricated. In order to be persuasive and carry weight, your evidence needs to be pure, legitimate, and not tampered with or altered.

Evidence comes in a lot of different forms. Evidence can be oral testimony from an examination for discovery. It can come from testimony at trial while a witness or party is on the stand. Oral evidence can come from parties to the litigation, witnesses to the action, lay persons/character witnesses, or experts.

Evidence can also come in the form of documentary evidence. Police reports, medical reports, video surveillance, 911 recordings, photos of injuries etc. All of these items are forms of evidence as well.

Cases are made and broken based on evidence. How much weight evidence is given depends on the Judge/Jury.

Some of the most important evidence in disability and personal injury cases comes in the form of expert reports, or expert testimony from medico-legal experts.

These are doctors who are hired by the parties to deliver an opinion as to damages and causation of those damages. What the expert says, or doesn’t say, can often make or break a personal injury case.

Medico-legal experts are of particular importance in personal injury cases where the OHIP treating doctor has died, isn’t available for trial, or there simply isn’t an OHIP treating doctor available to testify. These experts can be characterized by both sides as “hired guns” for the parties. They are not paid by the public health care system (OHIP) to appear in Court and to deliver an opinion.

On the contrary, these doctors are paid by the parties handsomely to deliver their findings. If their findings won’t support what a party has to say, chances are you won’t see them testify at trial. Would you call a witness to trial who isn’t going to deliver a favourable opinion for your case? That’s simply bad litigation strategy.

When it comes to calling these so called experts, there are laws and rules with respect to how many each party can call. The first place to look is section 12 of Ontario’s Evidence Act which states:

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.

The Evidence Act, needs to be read in conjunction with Rule 53 of the Ontario Rules of Civil Procedure:


    53.03 (1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference scheduled under subrule 50.02 (1) or (2), serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).  O. Reg. 438/08, s. 48; O. Reg. 170/14, s. 17.

    (2) A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).  O. Reg. 438/08, s. 48.

    (2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information:

    1. The expert’s name, address and area of knowledge.London Head Shot Brian Goldfinger

    2. The expert’s qualifications and employment and educational experiences in his or her area of knowledge.

    3. The instructions provided to the expert in relation to the proceeding.

    4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.

    5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.

    6. The expert’s reasons for his or her opinion, including,

    i. a description of the factual assumptions on which the opinion is based,

    ii. a description of any research conducted by the expert that led him or her to form the opinion, and

    iii. a list of every document, if any, relied on by the expert in forming the opinion.

    7. An acknowledgement of expert’s duty (Form 53) signed by the expert.  O. Reg. 438/08, s. 48.

    Schedule for Service of Reports

    (2.2) Within 60 days after an action is set down for trial, the parties shall agree to a schedule setting out dates for the service of experts’ reports in order to meet the requirements of subrules (1) and (2), unless the court orders otherwise.  O. Reg. 438/08, s. 48.

    Sanction for Failure to Address Issue in Report or Supplementary Report

    (3) An expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set out in,

    (a) a report served under this rule; or

    (b) a supplementary report served on every other party to the action not less than 30 days before the commencement of the trial.  O. Reg. 348/97, s. 3.

    Extension or Abridgment of Time

    (4) The time provided for service of a report or supplementary report under this rule may be extended or abridged,

    (a) by the judge or case management master at the pre-trial conference or at any conference under Rule 77; or

    (b) by the court, on motion.

The reality is that some of the best experts aren’t these so called “hired guns”. In fact, in my experience, the experts on either side will more often than not cancel each other out. The best experts are those doctors with no vested interest in the litigation whatsoever. They are the OHIP paid family doctors of the accident victim, or the OHIP paid treating doctors. They know the Plaintiff’s injuries the best. They don’t often appear in Court so they aren’t “too slick” for the Judge/Jury. They could also care less who wins the case. Their job is to present evidence as objectively as possible. And it’s that objectivity which Judges/Jurors and Insurers detect in order to make large awards for damages in relation to a personal injury claim.

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