[24] My conclusion that Dr. Castiglione is not expressing an opinion as a participant expert is further reinforced by the instructing letter to him from the plaintiff’s solicitor dated December 14, 2015 which refers to the pending trial. In the covering letter from plaintiff’s counsel it states:
Would you kindly provide us with a medical legal report providing your opinion as to whether the motor vehicle collision of November 24, 2011 affected Mr. Talluto’s pre-existing back condition, and, if so, in what manner.
[25] The fact that Dr. Castiglione has previously provided a report on his treatment of the plaintiff further supports a conclusion that the opinion he expressed in his report of January 1, 2016 was given for purposes of litigation as opposed to an opinion he had formed at the time of treatment.
[26] The Westerhof decision makes it clear that where an expert proffers an opinion which extends beyond his role as a participant expert he “must comply with Rule 53.03” with respect to that opinion. This is a mandatory obligation. As the plaintiff has not delivered an acknowledgement signed by Dr. Castliglione of his expert’s duty he is not qualified as a Rule 53.03 expert. As he is not a Rule 53.03 compliant expert he is not entitled to give the opinions expressed in his report of January 1, 2016, if the trial proceeds at these sittings.