Tort Defendant Not Permitted to Call Evidence from Plaintiff's Accident Benefits Assessors

Beasley and Scott v. Barrand, 2010 ONSC 2095 (S.C.J.)

This case involves the interpretation of the new requirements for experts pursuant to Rule 53.

The tort defendants in this trial sought to call evidence from three doctors who had assessed the plaintiff on behalf of his accident benefits carrier. The defendants made efforts to have the doctors brought into compliance with the new Rule 53.03 by having them sign an Acknowledgement of Expert’s Duty.

Justice Moore refused to allow the doctors to testify given that they could not comply with Rule 53.03. They were retained by an insurer that was not before the court, were not treating physicians and their instructions were not clear from the evidence. Justice Moore Held:

I am not to be heard to state that experts retained by accident benefits insurers cannot give opinion evidence in a tort action; rather, I say that such experts should first comply with Rule 53.03. I say “should” for there may be cases where that is not possible and then the court may consider relieving against non-compliance to ensure a fair adjudication of the issues upon their merits but this is not one of those cases.

This case places great constraints on the ability of the defence to call evidence with respect to the plaintiff’s injuries. It imposes a high hurdle for the defendants in order to call evidence relevant to the plaintiff’s injuries. Perhaps the accident benefits assessors could be called as fact witnesses which would mean r. 53.03 would not apply. It appears that this would be an area that would benefit from appellant intervention.

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