New Rule 53.03: Agha v. Munroe, 2022 ONSC 2508 – Civil Law

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This decision is one of the first to respond to the new rule 53.03 of the Rules of civil procedure, which entered into force on March 31, 2022 and deals with the timeliness of expert reports. Rule 53.03 requires a party who intends to call an expert witness at trial to serve the expert’s report at least 90 days before the pre-trial conference, and any responding report must be served at least 60 days before the pre-trial conference. For those who do not comply with rule 53.03, the old rule 53.08 provided for an “escape clause”, which read as follows:

  • If the evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave
    to have to be granted
    on fair terms and with adjournment if necessary, unless it causes prejudice to the opposing party or unduly delays the progress of the trial.

New Rule 53.08 now reads:

(1) If the evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave
may be granted
if the party liable for the applicable breach satisfies the judge that,

(a) there is a reasonable explanation for the failure; and

(b) the granting of the leave would not be,

(i) cause prejudice to the opposing party which could not be compensated by costs or an adjournment, or

(ii) unduly delay the trial.

The old rule provided that leave “shall be granted” (the “escape clause”), which essentially made leave mandatory for the late filing of expert reports, unless it would cause prejudice to the opposing party or caused an undue delay in the conduct of the trial. the new rule implemented discretionary language with that of “may be granted”. The new rule, which replaces “must be granted” with “may be granted”, sets out a new test which will guide the trial judge’s exercise of his discretion. It is incumbent upon the party seeking leniency to permit late service of the expert’s report and the admissibility of the expert’s testimony at trial. A party that fails to meet its obligations to serve an expert’s report in a timely manner will have to show that there is a reasonable explanation for the failure to serve an expert’s report and that the authorization will not cause prejudice to the opposing party party who cannot be compensated by costs or an adjournment or causes an undue delay in the conduct of the trial.

At the heart of the decision Aghathe plaintiff failed to serve expert reports dealing with critical elements of his claim, including loss of income and care needs, within the time required by rule 53.03.

Regional Senior Judge Edwards has openly stated that the pre-trial conference is not just an administrative part of a proceeding, but rather a fundamental part with two purposes: the possibility of settlement and dealing with case management issues. court case. Justice Edwards pointed to previous negative judicial comments regarding the late filing of expert reports, particularly the nonchalant manner in which it occurs. In Prabahan v. RBC General Insurance Co., 2018 ONSC 1186, Judge Stinson described the lack of punctuality as a “flagrant violation” of the rules. The absence of expert reports made it impossible to know whether the case could be settled at the pre-trial stage, thus defeating its purpose. In Balasingham v. Desjardins Financial Security2018 ONSC 1792, Judge Firestone granted that the defendant’s costs be dismissed due to the late adjournment of the trial – which was requested by plaintiff’s attorney due to late expert reports.

In Agha, the failure to serve expert reports ultimately cost the plaintiff the entirety of her claim; after the statutory deductible, the compensation awarded to the plaintiff was zero dollars.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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