The Ontario Court of Appeal’s recent decision in Girao v Cunningham, provides important guidance to both trial judges and counsel. While the case is a personal injury action, the principles enumerated by the court are broadly applicable to all areas of litigation. This is the second of a three part series, focusing on the proper use and admission of medical expert evidence, and principles related to ss. 35 and 52 of the Evidence Act  An overview of the trial and Court of Appeal decisions is detailed in our first blog, which can be found here. It addresses considerations that a trial judge and counsel must make when a party is self-represented.
The Trial Decision
The Court of Appeal dealt with two issues that arose during the trial with respect to the use of expert evidence: (1) the trial judge’s refusal to allow an expert called by the plaintiff/appellant (“Girao”) to testify beyond a limited issue; and (2) the admissibility of hearsay expert evidence that was favourable to the defendant/respondent (“Cunningham”).
Girao had submitted her notice of intent under ss. 35 and 52 of the Evidence Act, listing several medical reports she intended to admit. One of these was a report by Dr. Becker that summarized the medical examinations related to Girao’s statutory accident benefits claim. However, the trial judge did not allow Dr. Becker to speak to the substance of his report, instead limiting his evidence to the system for determining entitlement to statutory benefits. The trial judge told the jury that the evidence Dr. Becker did provide was not at issue, effectively expunging Dr. Becker’s evidence. Furthermore, for reasons not before the Court of Appeal, Dr. Becker’s report was also struck as an exhibit. Dr. Becker’s summary included a doctor’s report that was identified as being highly favourable to Girao’s position. While a copy was contained in Girao’s appeal book, the trial judge’s decision prevented it from being before the jury.
Cunningham served a request to admit on Girao, asking her to admit a letter of opinion by Dr. Sanchez. When Girao refused, Cunningham served a notice under s. 35 of the Evidence Act that listed several medical reports, including that of Dr. Sanchez, and gave notice that Cunningham could rely on the evidence of healthcare providers by filing their respective reports or calling them to testify. Dr. Sanchez was not made available for cross-examination. Cunningham’s insurer, who was represented by separate counsel at trial, did the same, filing several reports including that of Dr. Sanchez under both ss. 35 and 52.
Who is an Expert?
First, the Court of Appeal outlined the threshold requirement for the admission of expert evidence: (1) the evidence must be relevant; (2) it must be necessary in assisting the trier of act; (3) no other evidentiary rule should apply to exclude it; and (4) the expert must be properly qualified, assuming there is no novel scientific issue. The trial judge must act as a gatekeeper with respect to admitting expert evidence.
Next, the court looked to whether a person who has expertise, but is not qualified as an expert witness under s. 53.03 of the Rules of Civil Procedure, can still provide opinion evidence. The court found that such a person could and identified two types: (1) Participant Experts: those who form opinions based on their participation in the underlying events (such as a treating physician); and (2) Non-Party Experts: those who are retained by a non-party to the litigation and who form opinions based on personal observations or examinations that relate to the subject matter of the case, but for another purpose (such as a medical examination of a claimant for statutory accident benefit insurance purposes). The court cited Simmons J.A., who held:
I conclude 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 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.
The court concluded that there were no issues under rule 53.03, as all evidence was being provided by properly qualified medical professionals.
Admissibility and the Evidence Act
In determining whether the expert evidence was properly admitted, the court focused on two exceptions to the hearsay rule that are found in ss. 35 and 52 of the Evidence Act.
Section 35 relates to business records, and provides that if a record is 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, then the record is admissible as evidence of such act. While a qualified business record may be taken for the truth of its contents, s. 35 cannot be used as a basis for the admission of opinion evidence or medical notes.
Section 52 relates to medical records and permits the court to admit a medical report without the need to call the practitioner, allowing the report to be accepted for the truth of its contents. However, the court noted that the trial judge is obligated to require the author of the report to testify and be available for cross-examination if it is requested by a party. Unlike s. 35, s. 52 allows the admission of opinions and diagnoses contained in medical reports as an alternative to oral testimony.
The court concluded that it could not find any reasonable legal basis on which the evidence of Dr. Becker should have been excluded. It was an error to not allow him to testify about the substance of his report and to exclude his report from the trial record, given that Girao had provided notice under s. 52. The fact she provided notice under s. 35 and 52 was not fatal to her ability to have his evidence admitted. The court noted that it is common in an assessment of a claimant for statutory accident benefits for there to be a report similar to the one prepared by Dr. Becker, thus there should have been no reason to limit his testimony.  The court found that he should have been allowed to testify about the reliance he placed on the reports that he summarized, including the one that was highly favourable to Girao. Had proper procedure been followed, Cunningham would have been allowed to examine Dr. Becker or the authors of the reports that he relied on. The trial judge’s decision to exclude the expert evidence favourable to Girao was found to be grossly unfair. The court quoted Justice Barr: “it should be remembered that any time a court excludes relevant evidence the Court's ability to reach a just verdict is compromised.”
Turning to Dr. Sanchez’s letter of opinion, the court raised issue with the fact that this opinion was included in the charge to the jury and taken for the truth of its contents. This was especially onerous, as Girao had raised an objection to the letter, noting that Dr. Sanchez was not made available for questioning. However, Cunningham argued that it had been admitted under s. 35 and the trial judge accepted this, preventing Girao from being able to cross-examine Dr. Sanchez. Additionally, the trial judge extensively referred to Dr. Sanchez’s opinion in his summary of the evidence, further aggravating the prejudice. The court considered this an abuse of the opinion for hearsay purposes, and inferred that Cunningham purposely used s. 35 to avoid having to call Dr. Sanchez as a witness and subject him to cross-examination. The court held that the trial judge should not have allowed Dr. Sanchez’s opinion to be admitted via s. 35, as it was not a business record. Even though counsel for Cunningham’s insurer had admitted the same under s. 52, upon Girao’s objection, the trial judge was required to refuse to admit the opinion unless Dr. Sanchez was presented for cross-examination. This error of law was procedurally and substantially unfair to Girao. The court found that the combined errors related to the expert evidence alone was a sufficient basis on which to allow the appeal.
This decision highlights several important considerations with respect to the use and admission of expert evidence. First, it is important for trial counsel to identify how the expert’s opinion is derived, as it will affect whether the expert needs to be qualified pursuant to rule 53.03. Just because the expert is a medical professional, does not necessarily mean that he or she must be a qualified expert – a deeper analysis is required.
Second, when attempting to admit a record for the truth of its contents under the Evidence Act, it is important to ensure that it is admitted under the proper section. Section 35 can not be used for the admission of opinion. Medical records can be properly admitted under section 52, but the expert must be available for cross-examination upon request by the opposing party. Failure to ensure that proper procedure is followed will otherwise lead to a tainted trial record that diminishes the fairness of the proceeding.
Stay tuned for the next part of the third and final blog in this series that will examine the Court of Appeal’s analysis of principles related to trial procedure.
 Girao v Cunningham, 2020 ONCA 260 at para. 7 per Lauwers, Fairburn and Zarnett JJ.A
 R.S.O. 1990, c. E.23.
 Supra note 1 at paras. 36-37.
 Ibid at para. 49.
 Ibid at paras. 52-53.
 Ibid at paras. 54-55.
 Ibid at paras. 50-51.
 Ibid at para. 39.
 R.R.O. 1990, Reg. 194.
 Supra note 1 at paras. 39-40.
 Westerhof v. Gee Estate, 2015 ONCA 206 at para. 60.
 Supra note 1 at para. 46, 48 citing McGregor v. Crossland,  O.J. No. 310 (Ont. C.A.) at para. 3.
 Ibid at para. 45.
 Ibid at para. 47 citing Robb Estate v. Canadian Red Cross Society (2001), 152 O.A.C. 60 (Ont. C.A.) at para. 152.
Ibid at paras. 57-58.
 Hunter v. Ellenberger (1988), 25 C.P.C. (2d) 14 (Ont. H.C.).
 Supra note 1 at para. 61.
 Ibid at paras. 61-73.
 Ibid at para. 74.
 Ibid at para. 78.