Siskinds LLP’s personal injury lawyer, Victoria Edwards, was recently published in The Lawyer’s Daily. In this article, Victoria outlines amendments to the Rules of Civil Procedure and considerations for counsel if they wish to introduce expert evidence at trial.
This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.
Read the full article below.
Victoria Edwards – The Lawyer’s Daily – Posted: Apr 19, 2022
Expert evidence is essential to any personal injury action. This is especially true in the context of motor vehicle litigation, where the plaintiff must pass the “threshold” legal test if they are to recover non pecuniary damages. Under O. Reg. 461/96, the plaintiff must adduce evidence that they have suffered permanent serious impairment of an important physical, mental or psychological function for the purposes of the threshold test, and they must do so through one or more physicians. It is similarly difficult to imagine a medical malpractice or other suit based on medical injuries going far without the use of medical experts to comment on the injuries, prognosis, causation and future care needs.
Counsel must comply with the Rules of Civil Procedure if they wish to introduce expert evidence at trial. The Rules exist to ensure the just, most expeditious and least determination of every civil proceeding on its merits.
Recent amendments to Rules 50 and 53 have introduced dire consequences to parties who fail to exchange Rule-compliant expert reports. The parties may face an immediate costs order at pretrial should they fail to deliver their experts reports in accordance with the timelines set out in Rule 53. Additionally, they may be precluded from relying on the expert evidence of any expert whose report was late served.
These changes came into effect on March 31. A summary of the specific changes can be found at O. Reg. 18/22.
Timeline for exchange of expert reports
Rule 53.03, as it relates to the timeline for exchange of expert reports, has not been altered in the recent amendment. The parties are still to provide the signed expert reports to the other side under specific timelines to ensure that each party has the opportunity to know what expert evidence the other intends to rely upon at trial.
A party who intends to call an expert witness at trial must provide the expert report at least 90 days before the pretrial conference.
If the other party wishes to call an expert to respond to the original expert report, they must provide their expert report at least 60 days before the pretrial conference. The parties are also able to agree to a different timeline for service of expert reports between themselves.
Rule 50 and pretrial conferences
The pretrial is a conference between the parties with a judge to review the case, attempt settlement and sort out any outstanding trial scheduling matters.
In the past, parties have not always complied with the timelines. It was exceedingly frustrating for the litigants and judiciary to attempt to settle the case in advance of trial with outstanding expert reports. It resulted in wasted court time, additional motions and an overall delay in resolving the cases.
The amendments have effected the following changes to pretrial conferences:
- The pretrial must be scheduled for a date that is not more than 120 days or less than 30days before the trial is scheduled to start.
- The parties must now file a Certificate of Readiness 30 days before the pretrial.
- The pretrial judge no longer considers whether it is advisable for a fixed date trial.
- The pretrial judge can establish a timetable, or if necessary and subject to the direction of the regional senior judge or designate, adjourn the date for the trial or hearing. The remaining powers listed under r. 50.07(1) remain the same.
- The pretrial judge completes a Pre-Trial Conference Report after every pretrial now. The report must include:
- a. What steps need to be completed before the action is ready for the trial or hearing, and how much time is needed to complete those steps;
b. The anticipated length of the trial or hearing; and
c. Setting out any other matter relevant to the trial or hearing.
The Certificate of Readiness must specify whether the party intends to call any expert evidence at trial, and if so, whether the Rule 53.03 report of each expert was served within the specified time. If the expert’s report was not served on the other parties within the time specified in Rule 53.03, the reason why must be included in the certificate. This includes circumstances where there has been an extension of time to file the report.
Counsel should take special note of the changes to Rule 50.12, which deals with costs at pretrial conferences. If the pretrial judge determines that the conference was unproductive, for reasons related to a party’s conduct, the pretrial judge may order that party to pay costs to be paid immediately. If a party shows up to the pretrial missing essential expert reports without a good reason, they may be ordered to pay costs for wasting everybody’s time.
Rule 53 and expert reports at trial
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 with specific information included and swear an acknowledgement of the expert’s duty (Form 53), promising that any evidence provided would be fair and impartial.
Previously, if one of the parties did not comply with the timeline for service of expert reports, the other party was the one that suffered the consequences. For example, if the defendant did not serve their expert report until after the pretrial conference, there was a good chance that the plaintiff would not be able to get a responding report completed in time before the trial started (or vice versa). The plaintiff would either have to try to proceed through trial unable to respond to the defendant’s expert evidence, or the trial would be adjourned to give the plaintiff more time to get a responding report.
The trial judges’ hands were tied: they had to admit the late-served expert evidence or adjourn the trial.
The civil justice system is incredibly backed up, and the COVID-19 pandemic has not helped matters. An adjournment of a trial could mean another year or more of waiting for the matter to be heard in court. This outcome has hardly been fair to the party who complied with their disclosure obligations and has caused no end of headaches to the judges trying to move these matters along.
The recent rule changes are an effort to address this unfairness.
Now, Rule 53 expands the powers of the pretrial and trial judges to deal with late-served expert reports. The pretrial judge can extend or abridge the timelines for service of expert. The timeline can also be altered through a motion brought before the court or with the written consent of the parties.
The biggest change are consequences for failing to comply with the timeline for delivery of expert reports. Under Rule 53.08, if a party is late serving an expert report, that expert evidence is admissible with leave of the trial judge only if the defaulting party satisfies the judge that:
(a) [T]here is a reasonable explanation for the failure; and
(b) Granting leave would not,
(i) cause prejudice to the opposing party that could not be compensated for by costs or an adjournment, or
(ii) Cause undue delay in the conduct of the trial.
This change has shifted the burden to the defaulting party to justify their non-compliance with the Rules if they wish to rely on the expert evidence.
We will have to wait for the new Rules to take effect to understand what will be accepted as a “reasonable explanation for the failure.”
In a personal injury action, counsel should take special care to comply with the timeline for exchange of expert reports set out in Rule 53.03. Failure to do so could mean paying the other side costs at the pretrial, and/or the trial judge refusing to hear evidence from your expert. It takes years and a lot of effort to bring an action to trial, and you could seriously jeopardize your client’s position if you fail to meet these deadlines.
Counsel should think carefully about what experts they will need to prove their case early in the litigation process, and they should work with opposing counsel to agree on a timeline for exchange of reports that will allow both sides to meet their deadlines. Hopefully these amendments will result in earlier settlements of files that can be settled, and will result in a more fair and efficient use of court resources should the matter go to trial.