Affidavit From Participant Expert Not Required On Summary Judgment Motion – By Alan Melamud

In Maracle v. Mascarin,[1] the Plaintiff successfully resisted a summary judgment motion by relying on a combination of sections 35 and 52 of the Evidence Act[2] to tender the opinion, notes, and records of his expert (his treating cardiologist) into evidence, notwithstanding the absence of an affidavit from the expert.

Background

The case involved allegations of medical malpractice against a dentist, arising from an implant treatment. Two years prior to the treatment, the Plaintiff had undergone heart surgery and suffered a heart infection that made it necessary that he take prophylactic antibiotics prior to undergoing any kind of medical or dental procedure. The Defendant dentist was advised of the Plaintiff’s heart condition and did administer antibiotics, but was alleged to have failed to wait a sufficient amount of time to allow the antibiotics to be effective prior to starting the procedure. Over two months following the procedure, the Plaintiff suffered loss of vision in his right eye, and shortly thereafter was diagnosed with infective endocarditis by his treating cardiologist.

The Evidence on the Summary Judgment Motion

The Defendant brought a summary judgment motion on the basis of two expert reports that complied with Rule 53.03 and had been served on the Plaintiff. The expert reports indicated that (1) the loss of vision was a result of cardiac complications, (2) the Defendant had waited an adequate amount of time following the administration of antibiotics, and (3) it was extremely unlikely that the implant procedure had caused the infective endocarditis. The Defendant argued, and the Court accepted, that in cases of medical malpractice, where a defendant produces an expert opinion on a technical causation issue, the plaintiff must meet such evidence with an expert opinion to support the allegation of negligence. If the plaintiff fails to do so, then there will be no genuine issue requiring a trial and the defendant is entitled to summary judgment.

The only contrary evidence produced by the Plaintiff was the report, records, and notes of his treating cardiologist, who had concluded that the infective endocarditis had been the result of the Defendant dentist’s failure to wait a sufficient amount of time after administering the antibiotics. The Plaintiff did not provide a Rule 53.03 complaint report from his cardiologist, nor did he provide an affidavit from the cardiologist on the summary judgment motion. Instead, the Plaintiff relied on an affidavit of a paralegal in his lawyer’s office, which attached the relevant report, notes, and records.

Court Reaffirms Distinction between Litigation Experts and Participant Experts

The Defendant’s principal argument was that the evidence of the Plaintiff’s cardiologist could not be accepted absent a Rule 53.03 report. The Defendant relied on the Divisional Court’s decision in Westerhof v. Gee Estate.[3] The Court rejected this argument, noting that the Divisional Court’s decision had been recently overturned by the Court of Appeal, which had concluded that an expert not retained in the course of litigation, a participant expert, could give opinion evidence without complying with Rule 53.03.[4] The Court found that the Plaintiff’s treating cardiologist qualified as a participant expert.

Participant Expert’s Opinion Admissible Without an Affidavit

The Defendant’s second argument, based on a string of cases from the Superior Court,[5] was that expert evidence must be tendered in a manner that permits cross-examination to withstand a summary judgment motion. In other words, a party cannot rely on hearsay expert evidence. The Court rejected this argument too because these decisions pre-dated the Court of Appeal’s decision in Westerhoff. The Court cited the following passage from Westahoff, found at paragraph 85 of that decision:

“. . . I am not persuaded that disclosure problems exist in relation to the opinions of participant experts and non-party experts requiring that they comply with rule 53.03.  In many instances, these experts will have prepared documents summarizing their opinions about the matter contemporaneously with their involvement.  These summaries can be obtained as part of the discovery process.  Further, even if these experts have not prepared such summaries, it is open to a party, as part of the discovery process, to seek disclosure of any opinions, notes or records of participant experts and non-party experts the opposing party intends to rely on at trial. . .”

Notably, the Court of Appeal in Westahoff was not addressing whether expert evidence could be tendered in an indirect way to resist a summary judgment motion. Indeed, the passage cited seems to be limited to reinforcing the Court of Appeal’s conclusion that compliance with Rule 53.03 is not required for a party to rely on a participant expert or non-party expert’s opinion.

The Court went on to hold that the Defendant had been aware of the Plaintiff’s reliance on his cardiologist for a considerable period of time and could have cross-examined the cardiologist under Rule 39.03 (examination as a witness on a pending motion). However, the Superior Court has previously held that consistent with the view that an expert cannot be sheltered from cross-examination by way of an affidavit sworn on information ad belief, “it is not the defendants’ obligation to examine witnesses whose evidence is not properly before the Court.”[6]

Finally, the Court added that the cardiologist’s reports, notes, and records are admissible under sections 35[7] and 52[8] of the Evidence Act. It is not clear from the reasons for decision whether the Plaintiff provided proper notices under those sections but reliance on those sections was expressed in one of the affidavits filed by the Plaintiff’s paralegal.

Accordingly, the Court held that the notes, records and opinion of the cardiologist were admissible, and there were therefore two competing medical opinions on the issue of causation in evidence. The Court could not resolve the causation issue on a summary judgment motion and the motion was consequently dismissed.

Takeaways

Notwithstanding the lack of clarity as to why the Superior Court’s previous rulings regarding the need for direct expert evidence on a summary judgment motion should no longer apply, it does appear that the combination of sections 35 and 52 of the Evidence Act permits such a result at least in the case of medical-type experts. It is noteworthy that section 52 only applies to the reports of medical-type practitioners. While section 35 of the Act is broader, it does not permit the admission of opinion evidence like section 52.[9] Accordingly, where parties are met with such a report on a summary judgment motion, they should be wary about not pursuing rights of examination under Rule 39.03.

Lastly, it is arguable, that the use of section 52 should be limited to non-litigation experts. In Doran v. Melhado, the Superior Court refused to accept a report of a litigation expert pursuant to section 52, holding that, at least for a trial, the court should have the opportunity to determine if the expert is qualified.[10] A similar logic could apply to summary judgment motions, given that the submission of a report that is not compliant with Rule 53.03 may well not provide the expert’s qualifications.

[1]              2016 ONSC 537.

[2]              R.S.O. 1990, c. E.23.

[3]              2013 ONSC 2093 (Div. Ct.).

[4]              2015 ONCA 206. [Westerhoff (ONCA)]

[5]              For example, Sunwry v. Women’s College Hospital, [2008] O.J. No. 883 at paras. 26-31 (S.C.J.).

[6]              Ibid. at para. 31.

[7]           35. (1) In this section,

“business” includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise; (“entreprise”)

“record” includes any information that is recorded or stored by means of any device. (“document”)

(2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.

(3) Subsection (2) does not apply unless the party tendering the writing or record has given at least seven days notice of the party’s intention to all other parties in the action, and any party to the action is entitled to obtain from the person who has possession thereof production for inspection of the writing or record within five days after giving notice to produce the same.

[8]           52. (1) In this section,

“practitioner” means,

(a) a member of a College as defined in subsection 1 (1) of the Regulated Health Professions Act, 1991,

(b) a drugless practitioner registered under the Drugless Practitioners Act,

(c) a person licensed or registered to practise in another part of Canada under an Act that is similar to an Act referred to in clause (a) or (b).

(2) A report obtained by or prepared for a party to an action and signed by a practitioner and any other report of the practitioner that relates to the action are, with leave of the court and after at least ten days notice has been given to all other parties, admissible in evidence in the action

[9]              Westerhoff (ONCA), supra note 4 at paras. 99-103; Robb Estate v. Canadian Red Cross Society, [2001] O.J. No. 4605 at para. 152 (C.A.)

[10]             [2015] O.J. No. 221 at paras. 35-42.

 

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