While the developing case law with respect to Rule 53 had drawn a distinction between treating physicians and experts hired only for the purpose of the litigation, the recent ruling of the Divisional Court rejects that approach. The only question, according to the Westerhof v. Gee (Estate), 2013 ONSC 2093, is whether the evidence to be called is fact evidence or opinion evidence. The provisions of Rule 53 will apply to all opinion evidence whether or not the witness is a treating physician.
The Court concluded: “In determining whether and how rule 53.03 is to be applied, there is no basis for distinguishing between witnesses who treated the plaintiff and those who were retained solely to provide an opinion at trial. Rule 53.03 has to be applied taking into account the nature of the evidence to be called. Is it factual or opinion evidence?” Furthermore, the Court noted that in the absence of compliance with Rule 53, including a properly served report and a signed Form 53, treating physicians can only be called to give factual evidence of what they observed and the course of treatment they provided. The Court noted that nearly all diagnoses and prognoses are opinions. In previous Superior Court cases, diagnoses of treatment providers had been treated as facts, but the Divisional Court rejected this approach.
In the absence of a Rule 53 compliant report, a treating physician can only testify as to his or her diagnosis to explain the basis of the course of treatment the plaintiff received and not for the truth or accuracy of the diagnosis. The Court explained the distinction as follows: if a physician gives evidence of his or her diagnosis to explain the treatment provided, it is a fact that the diagnosis was the catalyst for the treatment. The diagnosis may still have been wrong. The statement of the witness does not establish as a fact that it correctly diagnoses the injury or illness. It is only relevant and admissible to understand the basis of the treatment chosen.
The critical lesson for all personal injury cases is that if you want your treating doctor to explain his or her diagnosis and prognosis at trial, it is essential this doctor provide a Rule 53 compliant report and that the doctor sign a Form 53.
At Howie, Sacks & Henry LLP we keep you abreast of all current and relevant personal injury legislation. For more information about Rule 53, contact D. Joel Dick at djdick@hshlawyers.com or 416-572-3516.
