In our last post, we discussed the Clark v. Zigrossi decision, where Justice Brown held that whether a party can file an expert’s report and call viva voce evidence from that expert is a matter of the court’s discretion.
In coming to this conclusion, Justice Brown undertook an analysis of the origins of the position that the report of an expert witness who testifies does not become an exhibit unless counsel agree or the court so orders. The approach was traced back to the 1974 Court of Appeal decision in Ferraro v. Lee (1974), 2 O.R. (2d) 417 (C.A.), in which the purpose of s. 52(2) of the Evidence Act was examined and it was found that the intention of the Legislature was to provide for the introduction into evidence of the medical report so that the party tendering it might be relieved from having to call the doctor to give evidence. It was then reasoned that a party cannot therefore proceed both to file the report and call the doctor. In drawing this conclusion, the Court of Appeal disagreed with the earlier case of Snyder v. Siutters,  3 O.R. 789 (H.C.J.), in which the trial judge granted leave to file the reports of doctors who were called to give viva voce evidence.
In Snyder v. Siutters, Wright J. held that it was in the interests of the administration of justice not only that the medical reports should be available in their entirety, but that if they are available, viva voce evidence of the practitioner should also be available. He went on to describe three great advantages of making both the reports and the experts’ testimony available to the jury, which Justice Brown found to possess a certain attractiveness. The advantages being that:
1) it enables a fixed and coherent opinion by the doctor to be put before the Court;
2) it enables the doctor, if he testifies to explain the technical language, and any other matters that arise by reason of evidence or other developments of the trial, and it gives the opposite party the right to cross-examine; and
3) it preserves for the jury room in an exact way the testimony of the doctor.
The Court of Appeal has subsequently interpreted Ferraro v. Lee and held that it is a matter of judicial discretion as to whether a party may both call an expert and file his report.
Thanks to our articling student, Alexandra Lacko, for contributing this post.