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On January 1, 2016, a New Code of Civil Procedure (NCCP) came into effect in Quebec. The spirit of the NCCP is to encourage lawyers to adopt the philosophy of Dispute Prevention and Resolution instead of litigation. The entire Code has been revamped and we anticipate a learning curve for lawyers and judges.

In order to better understand the key sections of the NCCP and the potential impacts on cases, we will periodically provide some insights. Today’s feature is experts.

Quebec Code of Civil Procedure – New Guidance on Experts

The following sections of the Code give guidance on the use of experts in dispute resolution,

22. The mission of an expert whose services have been retained by a single party or by the parties jointly or who has been appointed by the court, whether the matter is contentious or not, is to enlighten the court. This mission overrides the parties’ interests. Experts must fulfill their mission objectively, impartially and thoroughly.

232. The parties agree on the need for expert evidence at the case protocol stage or, with the authorization of the court, at any time before the case is ready for trial. The parties cannot seek more than one expert opinion, whether joint or not, per area or matter, unless the court authorizes otherwise given the complexity or importance of the case or the state of knowledge in the area or matter concerned.

233. In the case of joint expert evidence, the parties determine together what parameters must be covered, what expert is to be appointed, what fee is to be paid and how it is to be paid. If the parties fail to agree on any of those points, the matter is decided by the court. A joint expert can require that the expert fee and disbursements be deposited at the court office before submission of the report. If such a deposit has not been required, the joint expert has a right of action against all the parties to the proceeding, who are solidarily liable for the amount due.

234. At any stage of a proceeding, if it considers that expert evidence is necessary in order to decide the dispute, the court, even on its own initiative, may appoint one or more qualified experts to provide such evidence. The court defines the expert’s mission, gives the necessary instructions as to how it is to be carried out, sets the time limit within which the expert must submit a report and rules on the expert fee and its payment. The decision is notified to the expert without delay.

235. Experts are required to give an opinion on the points submitted to them or, in the case of bailiffs, to make an ascertainment. Experts are required, on request, to provide the court and the parties with details on their professional qualifications, the progress of the work and the instructions received from a party; they are also required to comply with the time limits given to them. They may, if necessary to carry out their mission, request directives from the court; such a request is notified to the parties. Experts act under their professional oath. If an expert has not sworn a professional oath, the parties or the court may require that the expert be sworn in. In addition, experts must sign a declaration regarding the carrying out of their mission, corresponding to the model established by the Minister of Justice, and attach it to their report.

238. An expert report must be brief but provide sufficient details to enable the court to make its own assessment of the facts set out in the report and of the reasoning that led to the conclusions drawn by the expert. It must mention the analytical methodology used. Any testimony taken by the expert is attached to the report and forms part of the evidence. The expert’s conclusions are not binding on the court or on the parties, unless the parties declare that they accept them.

293. The report of an expert stands in lieu of their testimony. To be admissible, the expert report must have been disclosed to the parties and filed in the record within the time limits for disclosure and filing of evidence. Otherwise, it may be admitted only if it was made available to the parties by another means in a timely manner so that they could react and determine whether the expert’s presence might be useful. It may however be admitted outside such time frames with leave of the court.

294. Each of the parties may examine an expert that it has appointed, a joint expert or a court-appointed expert to obtain clarifications on points covered in the expert report or to obtain the expert’s opinion on new evidence introduced during the trial; they may also examine such an expert for other purposes, with the authorization of the court. A party adverse in interest may cross-examine an expert appointed by another party. The parties cannot, however, raise a ground of irregularity, substantial error or bias against the expert report unless they were unable, despite their diligence, to note the irregularity, substantial error or bias before the trial.

Commentary on Experts and the Quebec Code of Civil Procedure

Joint experts and court-appointed experts did exist under the previous Code, however they were not often used and certainly not at the forefront like they are in the NCCP. It will be interesting to see if they are used more frequently in the coming years, or is this simply wishful thinking by the Quebec legislature.

The new restriction of one expert per matter is interesting (section 232).

It is also interesting to note that section 238 provides that any testimony taken by the expert is attached to the report and forms part of the evidence and that section 293 states that the report of an expert stands in lieu of their testimony. These aspects must be kept in mind as testimony is no longer the norm and the NCCP requires that experts’ reports be complete and stand alone.

That said, the most important aspect I note in the new legislation is section 235 which indicates that experts are required, on request, to provide the court and the parties with details on their professional qualifications, the progress of the work and the instructions received from a party. I anticipate some early case law on this aspect. Privilege will definitely be invoked and it will be interesting to see how courts define this section.

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