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Dennis v. Ontario Lottery And Gaming Corporation, 2011 ONSC 7024 (Div. Ct.) (rule 4.1 – duty of expert witness; rule 53.03 – expert witnesses)

Judgment Released: December 2, 2011  Link to Judgment

Rule 4.1 confirms that an expert’s duty of impartiality prevails over any duty owed to the parties who retained the expert. The new procedures in Rule 53.03(2.1) requiring the execution of an Acknowledgement of Expert’s Duty applies only to trials, not to class action certification motions; however, “one could make the case” that it would be good practice on a certification motion to include the matters set out in Rule 53.03(2.1) in an expert’s report.

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Dennis v. Ontario Lottery And Gaming Corporation, 2011 ONSC 7024 (Div. Ct.) (rule 4.1 – duty of expert witness; rule 53.03 – expert witnesses)

Girao v. Cunningham, 2010 ONSC 4607 (Master) (Rule 4.1.01 – duty of expert; Rule 53.05 – expert witnesses)

Judgment Released:  August 27, 2010  Link to Judgment

[Note: this decision is currently under appeal.]

In a motor-vehicle injury case, the plaintiff had undergone several medical examinations, but none to date by defence experts.  The defendant sought an order for three defence medicals; the plaintiff resisted any defence medicals, given the volume of already-existing medical reports. 

The Court granted the defendant’s motion, but noted that the new Rules regarding experts mean that the plaintiff was entitled to expect a different approach to defence medical examinations by doctors appointed by an insurer due to the duties now set out in Rule 4.1.01 and 53.03.  The Court quoted from the discussion on these Rules in Beasley v. Barrand, 2010 ONSC 2095, including that the Rules are aimed at “reining in the growing use of and reliance upon the evidence of experts at trial.”  The Court ordered counsel for the defendant to provide the Endorsement to their experts, who would have to acknowledge receiving and reading the Endorsement in their Acknowledgement of Expert’s Duty.

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Girao v. Cunningham, 2010 ONSC 4607 (Master) (Rule 4.1.01 – duty of expert; Rule 53.05 – expert witnesses)

McCullough v. Riffert, 2010 ONSC 3891 (Rule 4.1.01 – duty of expert)

Judgment Released: July 8, 2010   Link to Judgment

The Court noted that new Rule 4.1.01, concerning an expert’s duty, resulted from the Osborne Report, in particular the Report’s recommendations to “establish that it is the duty of an expert to assist the court on matters within his or her expertise and that this duty overrides any obligation to the person from whom he or she has received instructions for payment [and to require] the expert, in an expert report, to certify that he or she is aware of and understands this duty.”

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McCullough v. Riffert, 2010 ONSC 3891 (Rule 4.1.01 – duty of expert)