Get your expert reports on time, otherwise! – Civil right
Litigation is complicated. There are many rules, procedures and bureaucratic steps you have to go through to get through your day in court. Hiring knowledgeable lawyers to help you solve your legal problem is by far the best way to navigate this complicated system.
Civil litigation specialists know the rules that govern the litigation process from start to finish. These rules are called the Rules of civil procedure.1 Each province has its own version of the Rules. In Ontario, significant changes have been made to the Rules that affect the way civil cases are handled.
On March 31, 2022, several rule changes will come into effect regarding the use of expert evidence At the trial. Parties rely on experts such as doctors, engineers and accountants to help them explain their case to the court. For example, doctors often give expert opinions about injuries sustained by a plaintiff in a personal injury action. Engineers could reconstruct an accident and give evidence about the mechanism of the accident, which could help the court determine who was at fault. Accountants calculate the past and projected loss of income of a person who is no longer able to work in the same capacity as before an accident. There are many other types of experts and they play a vital role in helping the judge find a reasonable and fair result.
To call an expert to testify at trial, the parties must comply with the rules of expertise set out in the Rules of Civil Procedure. These rules exist to ensure that expert evidence is fair, balanced and impartial. They also established a schedule for the exchange of expert reports so that each side had the opportunity to respond to the other’s experts before trial.
The new rules provide for serious consequences for failure to serve expert reports within the time prescribed by the rule. A party who fails to comply with this new rule risks a court ignoring this often important and necessary evidence.
Rule 53.03 – Expert Witnesses
When a party wishes to use an expert to give opinion evidence at trial, the expert must comply with Rule 53.03 of the Rules of Civil Procedure.
The proposed expert must prepare a report containing specific information and swear an Acknowledgment of Expert Duty (Form 53) promising that any evidence provided will be fair and unbiased. The expert report must include:2
- The name, address and area of expertise of the expert.
- The professional and educational qualifications and experiences of the expert in his field of expertise.
- The instructions provided to the expert as part of the procedure.
- The nature of the advice sought and each issue in the proceeding to which the advice relates.
- The expert’s opinion on each issue and, where there is a range of opinions, a summary of the range and the reasons for the expert’s opinion within that range.
- The expert’s reasons for their opinion, including,
- a description of the factual assumptions on which the opinion is based,
- a description of any research conducted by the expert that led him to form an opinion, and
- a list of all documents, if any, on which the expert relied to form his opinion.
- Acknowledgment of expert assignment (Form 53) signed by the expert.
Calendar for the exchange of expert reports
The parties must provide the signed expert reports to the other party within specified time frames to ensure that each party has an opportunity to know what expert evidence the other intends to rely on during the court case.
A party intending to call an expert witness at trial must provide the expert report at least 90 days before the pre-hearing conference.
The pre-trial is a conference with a judge to review the case, attempt a settlement, and resolve any outstanding issues regarding trial scheduling. It must take place at least 90 days before the start date of the trial.
If the other party wishes to call on an expert to respond to the initial expert report, it must provide its expert report at least 60 days before the pre-hearing conference. The parties may also agree on a different time limit for the service of expert reports between them.
The problem of late expert reports
Previously, if one of the parties did not respect the deadline for service of expert reports, it was the other party who suffered the consequences. For example, if the defendant did not serve his expert report until after the pre-trial conference, there was a good chance that the plaintiff would not be able to obtain a completed response report in time before the start of the trial. court case. The plaintiff would either have to try to continue with their trial without being able to respond to the defendant’s expert testimony, or the trial would be adjourned to give the plaintiff more time to get a response report.
Trial judges had their hands tied: they had to admit late-filed expert evidence or adjourn the trial.
The civil justice system is incredibly supported and the Covid-19 pandemic has not helped matters. An adjournment of a trial could mean another year or more of waiting for the case to be heard in court. This outcome was hardly fair to the party that complied with its disclosure obligations and caused endless headaches for judges trying to move these cases forward.
The recent solution to the problem
Recent rule changes seek to address this injustice.
Now, section 53 expands the powers of pre-trial and trial judges to deal with late expert reports. The Pre-Trial Judge may extend or shorten the time limits for service of an expert.3 The schedule may also be modified by a motion filed with the Court or with the written consent of the parties.
The biggest change concerns the consequences of failing to meet the deadline for the delivery of expert reports. Under rule 53.08, if a party is late in serving an expert report, that expert evidence is only admissible with leave of the trial judge if the defaulting party has satisfied the judge that:4
- There is a reasonable explanation for the failure; and
- Granting leave would not be,
- Causing prejudice to the opposing party which could not be compensated by costs or an adjournment, or
- Causing an undue delay in the conduct of the trial.
We will have to wait for the new rules to come into effect to understand what will be accepted as a “reasonable explanation for the failure”.
Additionally, Rule 50.12 expands the pre-trial judge’s powers to include the ability to order costs against a party who has wasted the pre-trial judge’s time by not being ready. The parties cannot have meaningful settlement discussions if one of them has not obtained the necessary expert opinions. The pre-trial judge can now order the defaulting party to pay the costs to the other party for wasting everyone’s time during the pre-trial.
If you need an expert to give opinion evidence at trial, they must prepare an expert report in accordance with rule 53.03. The report must be served on the other party at least 90 days before the pre-trial. Response reports must be served at least 60 days before the pre-trial. Failure to meet these deadlines could result in the payment of costs to the other party during the preliminary phase and/or the refusal of the trial judge to hear your expert’s evidence.
Hopefully, these rule changes will address these issues in a timely manner and improve trial fairness in the future.
Siskinds attorneys are experts at navigating the rules of civil procedure to help clients achieve a speedy, fair and equitable resolution of their civil cases.
1. Rules of Civil Procedure, RRO 1990, Reg. 194
2. Rule 53.03
3. Rule 53.03(4)
4. Rule 53.08
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.