Hello. Below are summaries of this week’s Ontario Court of Appeal civil decisions (non-criminal).

Yesterday, the Court release an important decision in Westerhof v Gee Estate, 2015 ONCA 206, in which it confirmed that treating physicians who are involved in the care of the plaintiff or who are retained by insurers to evaluate the plaintiff, are entitled to give evidence on their observations, opinions and conclusions reached during the time of treatment without being classified as expert witnesses.  Accordingly, these experts are not litigation experts and, therefore, do not have to deliver an expert report in compliance with Rule 53.03 of the Rules of Civil Procedure.  Obviously, this decision will have relevance to situations outside the personal injury or med/mal context, and therefore all litigators should be familiar with it.

Other topics covered this week include the enforcement of foreign judgments, a motion by an insurance company to set aside a default judgment in the context of a “hold harmless agreement” and several endorsements on summary judgment, default judgment, a request for an order of mandamus.

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John Polyzogopoulos

Blaney McMurtry LLP
Tel: 416.593.2953

Kavoussi v. Moos, 2015 ONCA 195

[Epstein, Pepall and Benotto JJ.A.]

Moos, acting in person
D. Sherkin and R. Wozniak, for the respondents

Keywords: Enforcement of Foreign Judgment, Fraud, Fresh Evidence, Summary Judgment

Facts: In July 2009, the respondents sued the appellant in California for damages based on fraud and negligent misrepresentation. In January 2010, the appellant, who resides in Ontario, unsuccessfully challenged the jurisdiction of the California court, a decision that was not appealed. The appellant then participated in the trial by defending the respondents’ action on its merits. The trial resulted in a judgment in March of 2012, of approximately $3,000,000. The appellant’s appeal from that judgment was dismissed in October 2013. His attempt to have the dismissal reviewed by the Supreme Court of California was dismissed in January 2014. The respondents commenced this action for, among other relief, enforcement of the judgment in Ontario.

The respondents moved for summary judgment. Problems arose out of the appellant’s attempts to file additional materials. On January 6, 2014, the motion judge ordered that the appellant not be allowed to file additional material in response to the motion for summary judgment. The motion judge therefore concluded that there was no issue requiring a trial and ordered that the California judgment be recognized and enforced in Ontario.

Issue: Was the California judgment obtained by fraud?

Holding: Appeal dismissed.


No. The court found that the appellant’s argument depends on admitting the fresh evidence which the court cannot do. First, the motion judge refused to allow the appellant to submit this same evidence for the purposes of the summary judgment motion. That order was not appealed and is final.

Second, the proposed evidence does not meet the Palmer test.

Swain v. Gorman, 2015 ONCA 194

[Lauwers, Hourigan and Pardu  JJ.A.]

Kerr, for the appellant
R. Witt and R. Boucher, for the respondent Ross
G. Paliare and T. H. Lie, for the respondent Sherry Gorman

Keywords:  Endorsement, Civil Procedure, Summary Judgment, Motor Vehicle Accident

Facts: The defendant was granted summary judgment that she was not liable in the motor vehicle accident.

Holding: Appeal dismissed.

Han v. Li, 2015 ONCA 193

[Sharpe, Pepall and van Rensburg JJ.A. ]

A.S. Blott Q.C., for the appellant
Landy, for the respondents

Keywords: Endorsement, Civil Procedure, Default Judgment

Facts: This was an appeal from the order of Justice Andrea Pollak of the Superior Court of Justice, dated October 23, 2014.

Issues: Did the motion judge err in refusing to set aside the default judgment?

Holding: Appeal Dismissed.


The motion judge identified and applied the correct test and found that the appellant had failed on all three elements, and concluded that it was not in the interest of justice to set aside the default judgment.

Ontario v. Waskowec, 2015 ONCA 203

[Watt, Lauwers and Hourigan JJ.A.]

Waskowec, acting in person
Hurman, for the respondent

Keywords:  Endorsement, Mandamus

Facts: The appellant brought a private prosecution against Hydro One. The prosecution arose from a dispute regarding the refusal to courier bills to the appellant’s home. This was dismissed by the Justice of the Peace and the appellant appealed to the Superior Court. The application judge converted the appeal to an application for mandamus because an appeal was not available. The application judge noted that mandamus is discretionary and declined to exercise his discretion to grant mandamus.

Issue: Did the application judge err by not granting mandamus?

Holding:  Appeal dismissed.

Reasoning:  No.  Hydro One had no duty to courier mail to the appellant’s home and had fulfilled its statutory duties for the delivery of bills.

Intact Insurance Company v Kisel, 2015 ONCA 205

[Laskin, Simmons and Watt JJ.A]

J.A. Campion and T. Hanrahan, for the appellant
Rooz, for the respondents

Keywords: Civil Litigation, Insurance, Accident Benefits, Hold Harmless Agreements, Accrual of Cause of Action, Default Judgment, Noting in Default, Rules of Civil Procedure, Rule 19.03(1), Rule 19.08(1)

Facts: Rade Bijelic and Yaroslava Kisel were injured in a car accident in December 2009. Each applied for statutory accident benefits with their insurer, Intact Insurance, and most of these benefits were paid. Intact claimed that two of their health service providers- Osler Rehabilitation Centre and Assessment Direct- had submitted invoices for excessive amounts. Intact settled its dispute with Bijelic and Kisel under a partial settlement on February 5, 2013 and a full settlement on February 11, 2013. Under the partial settlement, Intact agreed to settle all accident benefit claims save for outstanding amounts of approximately $60,000 and $67,000, submitted to Intact by the two service providers. Under the full settlement, Bijelic and Kisel agreed to release Intact from any further claims, and Intact agreed to hold harmless and indemnify them for any claims brought by the two services providers for the outstanding amounts.

Both Osler Rehabilitation and Assessment Direct sent demand letters to Bijelic and Kisel for payment of their outstanding debts. Intact took the position that the hold harmless agreements had not been triggered because they had not yet started an action for payment. Bijelic and Kisel sued Intact alleging they had breached the hold harmless agreements. Intact delivered a notice of intent to defend in each action, but did not deliver statements of defence. Each plaintiff moved promptly to obtain a default judgment, in one case, and a noting of default in the other.

Intact moved to set aside the default judgment and noting of default. In dismissing Intact’s motions, the motions judge did not accept that Intact had a reasonable excuse or explanation for its default and viewed that Bijelic and Kisel would be more prejudiced by granting Intact an indulgence than would Intact be prejudiced by a refusal to set aside the defaults. Intact Insurance appealed the refusal of the motion judge to set aside the noting of default and the default judgment.

Issues: (1) Did the motion judge err in dismissing the motion to set aside the noting of default and default judgment?

Holding: Appeal allowed.


(1) Yes, the motion judge erred in relying on the two grounds for refusing to set aside the default judgment. The Court found that Intact had a reasonable explanation for its defaults and neither plaintiff would have been prejudiced by allowing Intact to defend each action.

In finding that Intact had not offered a reasonable explanation for its defaults, the motion judge stopped short of interpreting the hold harmless agreements. However, the proper interpretation of the agreement was fundamental to Intact’s submission that it had a reasonable explanation for not defending the action. Intact submitted that on a proper interpretation of the hold harmless agreements, the plaintiff’s causes of action against Intact had not accrued because when they sued Intact, neither service provider had yet sued them. The Court agreed with this submission and held that neither plaintiff had a cause of action against Intact when each chose to sue the insurer. Thus, although Intact ought to have delivered a statement of defence, it had a reasonable explanation for not doing so.

The court held the motion judge’s conclusion that the plaintiffs would be more prejudiced from setting aside the defaults than Intact would be maintaining them, was unreasonable. Setting aside the defaults would cause no prejudice to either Kisel or Bijelic. On the ground of prejudice alone, the Court set aside the defaults.

Petre v. Petre, 2015 ONCA 199

[Simmons, Tulloch and Pardu JJ.A.]

Petre, in person
Petre, in person

Keywords: Family Law, Endorsement, Separation Agreement

Facts: The appellant appealed the order of Kruzick J. dismissing his request to set aside the separation agreement he entered into with the respondent.

Issues: Did Kruzick J. err in law in refusing to set aside the parties’ separation agreement?

Holding: Appeal Dismissed.


No.  The appellant failed to demonstrate that Kruzick J made any error in law in his reasoning, nor did he show any basis to interfere with any of the findings of fact made by Kruzick J. at trial. Kruzick J. fully considered all of the appellants’ arguments, including the contention that he was pressured into signing the separation agreement. Kruzick J. made findings of fact against the appellant on all his arguments.


Westerhof v Gee Estate, 2015 ONCA 206

[Laskin, Sharpe and Simmons JJ.A.]

Poproski, L. Ferro and R. Zigler, for the appellant Jeremy Westerhof
K.C. Dickson and K.J. Raddatz, for the respondent the Estate of William Gee
Rollo and D. Visschedyk, for the appellant James Baker
P.J. Pape and J. Nairn, for the respondent Daniel McCallum
Halpern and B. Cameron, for the intervener the Ontario Trial Lawyers Association
W.D. Black, J.R. Morse and J.J. Morris, for the intervener The Holland Access to Justice in Medical Malpractice Group
J.A. Olah and S. Libin, for the intervener the Canadian Defence Lawyers Association
L.R. Rothstein and J.C. Killey, for the intervener The Advocates’ Society

Keywords: Torts, Motor Vehicle Accident, Evidence Law, Evidence Act, Trial Procedure, Expert Evidence, Rules of Civil Procedure, Rule 53.03, Form 53, Fact Witnesses, Treating Physicians, Whether Required to Deliver Expert Report in Compliance with Rule 53.03Courts of Justice Act, s. 134, Jury Instructions

Facts (Westerhof v Gee Estate):
Mr. Westerhof was injured in a car accident. He claimed that he suffered serious permanent impairments of important physical, mental and psychological functions as a result of the accident.

The major issues at trial related to causation and damages. Mr. Westerhof claimed that all of his injuries, and his resulting loss of future economic opportunity, were related to the motor vehicle accident. The defence maintained that his upper body soft tissue injuries had resolved well before trial, and that his remaining problems, including psychological, were not related to the accident.

Mr. Westerhof proposed to call evidence from nine medical witnesses. From the outset of the trial, the trial judge ruled that the medical witnesses who treated or assessed Mr. Westerhof but did not comply with rule 53.03 would not be entitled to give opinion evidence concerning their diagnosis or prognosis, even though they had not been retained for the purpose of the litigation. The trial judge dismissed the action, finding that Mr. Westerhof’s claim for non-pecuniary damages did not meet the threshold in s. 267.5(5) of the Insurance Act

On appeal, the Divisional Court upheld the trial judge’s evidentiary rulings and dismissed Mr. Westerhof’s appeal. The Divisional Court rejected the conclusions of prior cases that a medical practitioner retained by a non-party insurance company and other “fact witnesses” need not comply with the amended rule 53.03 to give expert opinion evidence at trial. The Divisional Court had held that “[t]he important distinction is not in the role or involvement of the witness, but in the type of evidence sought to be admitted. If it is opinion evidence, compliance with rule 53.03 is required; if it is factual evidence, it is not.”

Issue: Did the Divisional Court err in affirming the trial judge’s decision that Rule 53.03, dealing with expert evidence, applies to all medical practitioners who provide opinion evidence, whether or not they were retained for the purposes of the litigation?

Holding: Appeal allowed. A new trial was ordered.


Yes.  The Court of Appeal rejected the Divisional Court’s conclusion that the type of evidence – whether fact or opinion – is the key factor in determining to whom rule 53.03 applies. Instead, the Court concluded 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 (“participant experts”) may give opinion evidence for the truth of its contents without complying with rule 53.03 where:

  • the opinion to be given is based on the witness’s observation of or participation in the events at issue; and
  • the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

Similarly, the Court concluded 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.

If participant experts or non-party experts also proffer opinion evidence extending beyond the limits noted above, they must comply with rule 53.03 with respect to the portion of their opinions extending beyond those limits. As always, the court retains its gatekeeper function.

The Court of Appeal rejected the Divisional Court’s analysis and conclusions for six reasons.

First, the Divisional Court made no reference to pre-2010 jurisprudence supporting the conclusion that, prior to the 2010 amendments to the Rules of Civil Procedure,  participant experts were entitled to give opinion evidence arising from their observation of or participation in events for the truth of its contents without complying with the former rule 53.03. In Marchand v The Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97, the Court of Appeal had confirmed that treating physicians could testify about treatment opinions without complying with the former rule 53.03.

Second, apart from Westerhof, no cases were brought to the Court’s attention that supported the view that participant experts were obliged to comply with rule 53.03 when giving evidence concerning treatment opinions.

Third, nothing in the report of the Honourable Coulter Osborne, which related to expert witnesses in the civil justice system, indicated an intention to address participant experts or non-party experts.

Fourth, the text of the 2010 amendments supported the view that rule 53.03 did not apply to participant experts or non-party experts. The Court agreed with the judge in McNeil v Filthaut, 2011 ONSC 2165 that rule 4.1.01, rule 53.03 and Form 53 formed a comprehensive framework addressing a specific class of expert witnesses and expert reports. There was no basis for concluding that rule 53.03 was intended to apply to persons other than expert witnesses “engaged by or on behalf of a party to provide [opinion] evidence in relation to a proceeding”.

Fifth, the Court was 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.

Sixth, requiring participant witnesses and non-party experts to comply with rule 53.03 could only add to the cost of the litigation, create the possibility of delay because of potential difficulties in obtaining rule 53.03 compliant reports, and add unnecessarily to the workload of persons not expecting to have to write rule 53.03-compliant reports (e.g. emergency room physicians, surgeons and family doctors).

Based on these conclusions, the Court of Appeal agreed that the trial judge erred in holding as a general matter that the various medical practitioners who had treated or assessed Mr. Westerhof could not give opinion evidence because they had not complied with rule 53.03. The Court considered each impugned evidentiary ruling that the trial judge made, concluding that some of the treating physicians and non-party experts should not have been excluded from giving expert opinion evidence, while others were properly excluded. Notably, the Court held that the trial judge erred in excluding the opinion testimony of two non-party experts who conducted a functional abilities assessment of Mr. Westerhof in August 2006 and prepared a report for Mr. Westerhof’s SABS insurer. These witnesses were entitled to testify  concerning the history they took, the tests they performed, and the results they observed, including their observations about whether Mr. Westerhof was experiencing pain, without complying with rule 53.03, because of their status as non-party experts.

Finally, the Court held that the trial judge’s erroneous evidentiary rulings warranted a new trial, pursuant to s. 134 of the Courts of Justice Act. The trial judge’s erroneous evidentiary rulings prevented Mr. Westerhof from placing important evidence before the judge and jury that could reasonably have affected the outcome of the trial.

Facts (McCallum v Baker):

In this companion case to Westerhof, Mr. McCallum suffered injuries in a motor vehicle accident. Mr. McCallum claimed that he was healthy prior to the accident, but that as a result of the accident he suffered serious injuries to his neck, back, shoulder and hands, as well as chronic pain, chronic headaches and severe depression. He claimed that these injuries prevented him from returning to work and severely curtailed his activities of daily living. He also claimed that it was unlikely that he would ever be able to return to work.

The defendant, Mr. Baker, admitted liability and agreed that Mr. McCallum was entitled to damages, including a significant amount for general damages and sums for future loss of wages and future care. However, Mr. Baker also claimed that Mr. McCallum had pre-existing conditions that were aggravated by the accident, and disputed Mr. McCallum’s assertions that he would never be able to return to work.

At trial, the trial judge permitted several medical practitioners who had treated Mr. McCallum to give opinion evidence concerning Mr. McCallum’s future employment prospects and future treatment needs without complying with rule 53.03. The trial judge concluded that because these witnesses were treating medical practitioners, they could give opinion evidence without complying with rule 53.03.

On appeal, Mr. Baker accepted that treating physicians may give opinion evidence directly related to their treatment of a patient, such as a working diagnosis and prognosis. However, he submitted that the trial judge retained a gatekeeper function in relation to opinion evidence of treating physicians who do not comply with rule 53.03 and that, in his case, the trial judge erred in failing to fulfill his gatekeeper function in three ways:

  • (1) permitting treating physicians to give opinion evidence concerning matters such as future employability and future medication requirements that were not directly related to the treating physician’s treatment of Mr. McCallum and that had not been disclosed prior to trial;
  • (2) permitting treating physicians to give opinions that went beyond their expertise; and
  • (3) by permitting treating physicians to opine on matters that properly fell within the boundaries of rule 53.03 expert evidence, the trial judge unfairly allowed an excessive amount of expert evidence and ran afoul of the provisions of s. 12 of the Evidence Act, R.S.O. 1990, c. E.23. Subject to leave, s. 12 limits to three the number of experts who may testify for a party.

Mr. Baker also submitted that the trial judge’s jury instructions were unbalanced and failed to adequately summarize for the jury his overriding theory – and the evidence that supported it – that many of Mr. McCallum’s complaints were being caused by the medications he was taking and that Mr. McCallum had not taken adequate steps to improve his condition.


(1) Did the trial judge err in failing to limit the nature of the opinion evidence proffered by the medical practitioners who had examined McCallum without being required to comply with Rule 53.03, dealing with expert evidence?

(2) Did the trial judge err in failing to limit the amount of expert evidence proffered by McCallum?

(3) Did the trial judge err in his charge to the jury?

Holding: Appeal dismissed.


(1) No. On Mr. Baker’s first and second arguments, the treating physicians’ testimony concerning Mr. McCallum’s future medication requirements and future employability related to their treatment of Mr. McCallum and fell within their respective areas of expertise. It appeared that the opinions at issue were formed at the time of treatment. There was no indication in the transcript that the opinions had not been disclosed prior to trial. Similarly, the opinions given concerning Mr. McCallum’s ability to return to work appeared to have been formed at the time of, and arose directly from, the practitioners’ treatment of Mr. McCallum. Further, they were not complex vocational opinions requiring highly specialized expertise, and there was no indication that they had not been disclosed prior to trial.

(2) No. The Court of Appeal was not persuaded that the trial judge erred in failing to exclude some of the impugned evidence to avoid an “avalanche” of expert evidence. Again, the opinions concerning ability to return to work were not complex vocational opinions of the kind one would expect from a rule 53.03 expert. They were formed by treating practitioners in the course of their treatment. There was no suggestion that these practitioners were litigation experts in disguise.

(3) No. In the context of a civil jury trial, failure to object to the charge, particularly in a case involving non-direction, will often be fatal to any subsequent claim that the charge was flawed: Marshall v. Watson Wyatt & Co. (2002), 57 O.R. (3d) 813 (C.A.). Counsel for Mr. Baker did not raise an objection to the trial judge’s jury instructions despite having received a copy of them the evening before the judge’s charge to the jury. Counsel who receive a copy of such jury instructions have an obligation to the court to review them before the charge is delivered. Counsel who fail to review the instructions and make prompt objections in advance of their delivery to the jury do so at their peril. Further, the nature of Mr. Baker’s objection would have made it difficult for the trial judge to promptly prepare a meaningful recharge.

Tags: Torts, Motor Vehicle Accident, Evidence Law, Evidence Act, Trial Procedure, Expert Evidence, Rules of Civil Procedure, Rule 53.03, Form 53, Fact Witnesses, Treating Physicians, Whether Required to Deliver Expert Report in Compliance with Rule 53.03

Abdulle (Re), 2015 ONCA 209

[Simmons, Juriansz and van Rensburg JJ.A]

D.F. Embry, for the appellant
Medeiros, for the respondent Ministry of the Attorney General
Warner, for the respondent Centre for Addiction and Mental Health

Keywords: Administrative Law, Endorsement, Ontario Review Board, Detention Order

Issues: Did the Board err by imposing a detention order?

Holding: Appeal dismissed.

Reasoning: No. It was open to the Ontario Review Board to accept the expert opinion that further violence was inevitable if the appellant remained in a medium secure facility. The doctor’s report addressed the issue of risk as well as the issue of criminal responsibility.

Tags: Administrative Law, Endorsement, Ontario Review Board, Detention Order

The information contained in our summaries of the decisions is not intended to provide legal advice and does not necessarily cover every matter raised in a decision. For complete information or for specific advice, please read the decision or contact us.