In the recently released decision of Spirito v Trillium Health Centre, 2013 ONSC 5238, the Ontario Superior Court limited the testimony of treating physicians who had not complied with Rule 53.03 of the Rules of Civil Procedure.

This issue arose in the context of medical malpractice litigation following the death of a patient, Emilio Spirito, at Trillium Health Center. Mr. Spirito’s estate and his family sued the treating physicians, hospital and nurses in negligence. The claim was dismissed in its entirety.

At the commencement of trial, the plaintiffs sought leave, under section 52 of the Evidence Act to file medical reports of two treating physicians and to call them as expert witnesses. The plaintiffs had not complied with the notice requirement for filing medical reports under the Evidence Act. Nor had they complied with the requirements of Rule 53.03.

Rule 53.03 requires parties intending to rely on expert witnesses to deliver a signed report containing specific information, including the expert’s qualifications employment, and educational experience; the instructions provided to the expert; the nature of the opinion being sought and each issue to which the opinion relates; the opinion, the reason for it and any factual assumptions on which it is based; any research conducted by the expert; and a list of every document relied upon in forming the opinion. Rule 53.03 also requires experts to sign an “Acknowledgement of Expert’s Duty” document in which, among other things, the expert acknowledges the obligation to provide opinion evidence that is “fair, objective, and non-partisan.”

The Court held that Rule 53.03 applies to all physicians called to provide opinion evidence, regardless of whether they are experts retained by a party or treating physicians. Accordingly, in this case, the Court did not accept the two treating physicians as expert witnesses and did not permit the filing of their respective medical reports. The two physicians were permitted to testify as fact witnesses and could give evidence about treatment opinions formed at the time they were involved with Mr. Spirito. This case highlights the importance of full compliance with Rule 53.03 and the notice provisions of the Evidence Act.


Edona C. Vila


Insurance and Tort Liability