Can medical expert evidence be filed at trial without making the witness available to give viva voce evidence?

January 28, 2016, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

A Summary Judgement was issued in a case before The Superior Court of Justice in Ontario. The case involves an assault between two fathers outside a hockey banquet hall for the daughters. Mr. M struck Mr. D in the face and caused Mr. D loss of eyesight and psychological distress. This case motion involves the admissibility of expert reports filed at the court or whether the experts must testify to the evidence.

Mr. D’s legal representative indicated at the outset of the trial that he intended to file two medical expert reports as evidence without calling them to give viva voce evidence. Representatives for Mr. M brought this motion forward on the basis that he had no medical expert to call on behalf of the defendant.

The Judge considered the Rules of Civil Procedure as the related to the proposed expert evidence, and whether the report of a medical practitioner that a party is relying upon as expert evidence can be filed under section 52 of the Evidence Act instead of calling that expert to testify at trial. The Judge noted that pursuant to the Evidence Act, if the proposed expert is a medical practitioner, Section 52 allows for a party to file his or her report as evidence if notice is given at least ten days before trial and with leave of the court, instead of calling that medical practitioner as a witness at trial. The Judge then reviewed previous decisions and noted that language used in the subrules of Sec 53 of the act and noted these subrules suggest that the expert witness called by a party, notwithstanding that the witness is a medical practitioner who would otherwise be subject to section 52 of the Evidence Act, shall be required to attend a court and give viva voce evidence if called as a litigation expert.

The Judge concluded that because rule 53.03 contemplates that an expert witness is required to attend and give his or her opinion evidence at trial, it would be inappropriate for this court to grant leave for the reports of a medical practitioner proffered as a litigation expert to be filed and relied upon as that medical practitioner’s evidence.

The Judge issued a summary finding of liability against Mr. M on the basis of Mr. D’s affidavit filed in support of the motion. The Judge also considered the transcript of evidence and a finding of guilt on the same facts in the Ontario Court of Justice Criminal Code conviction. The Judge finally considered the issues of timely and affordable justice in this case.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

The opinions expressed here, while intended to provide useful information, should not be interpreted as legal recommendations or advice.