Court Rules Amendments related to Concurrent Expert Evidence  and “Hot-tubbing” of Experts.

While the usual vision of hot-tubbing more often than not would include relaxation, water, jets, and maybe some bubbling beverages, the idea of “hot-tubbing” experts illustrates a far different picture.  With its roots in Australia, “hot-tubbing”, or “concurrent expert evidence”, involves a collaborative process of organizing expert evidence at a hearing or trial.  Expert evidence on each side of a dispute in litigation is traditionally provided separately through examination-in-chief, expert reports, and cross-examination at various stages in a hearing or trial. Hot-tubbing, has experts on a panel provide their evidence concurrently while allowing for questioning from the Judge, the lawyers, and possibly the experts themselves.

This article is not intended to provide a comprehensive review of the application of hot-tubbing expert evidence in Canada or elsewhere. Instead, it seeks to provide insurance professionals and lawyers with an overview of some of the recent changes to Court Rules in Canada which may allow hot-tubbing at trial and/or during the pre-trial process. This article illustrates the hot-tubbing trend developing across Canada, considers advocating and opposing positions on expert hot-tubbing, and is meant to identify specific issues to consider as the hot-tubbing movement gains popularity in Canadian civil courts.

The hot-tubbing of experts has undoubtedly gained notice in Canadian civil court rules as a result of recent comments made by some members of our judiciary.  In a 2009 Federal Court of Canada case, Gauthier J. noted: “I truly believe that the use of hot tubbing would have been particularly useful here” (Eli Lilly and Co. v. Apotex, [2009] F.C.J. No. 1229).  Further, in 2010, Justice Binnie, who has since retired from the Supreme Court of Canada, articulated his dissatisfaction with “duelling experts” in the courtroom and suggested hot-tubbing as one solution: “a court should be able to require opposing experts to testify on the same panel and to be subject to questioning in the presence of each other, with the right to question each other in the presence of the trier of fact” (“The Changing Role of the Expert Witness” (2010) 49 Sup Ct L Rev (2d) 179).

Amendments to the Federal Courts Rules (SOR/98-106) allowing hot-tubbing of experts soon followed in 2010. Rules 282.1 and 282.2 of the Federal Court Rules provide that the Court may order “…some or all of the experts to testify as a panel…”.  Upon this direction, the experts form a panel and “shall give their views and may be directed to comment on the views of other panel members and to make concluding statements”.  Experts are permitted to ask questions to other experts on the panel with leave of the Court.  The Federal Courts Rules also allow for pre-trial hot-tubbing described as an order the Court may make to have “expert witnesses confer with one another in advance of the hearing of the proceeding in order to narrow the issues and identify the points on which their views differ”. The parties and their counsel are permitted to attend the pre-trial “hot-tub” (Rule 52.6(1) and (2)).

The Rules of Civil Procedure in Ontario (RRO 1990, Reg 194) also underwent amendments in 2010.  While the Ontario Rules did not expressly incorporate the traditional trial expert “hot-tubbing”, the amendments did include the ability for the Court to order experts to “meet on a without prejudice basis” to identify areas of agreement and disagreement and “to attempt to clarify and resolve any issues that are the subject of disagreement” (Rules 50.07 (1)(c) and 20.05(2)(k)). The notable difference between the pre-trial hot-tubbing provisions in the Federal Courts Rules and the Ontario Rules of Civil Procedure is the express requirement that the pre-trial “hot-tub” session is to be without prejudice in Ontario.

A further example of civil rules incorporating pre-trial hot-tubbing can be found in British Columbia.  The Supreme Court Civil Rules (BC Reg 168/2009) implemented in July of 2012 provide that a Judge may order, with or without an application by a party, “that the parties’ experts must confer before the service of their respective reports” (Rule 5-3(1)(k)(iii)).  Interestingly, this Rule replaced a its predecessor which allowed for a without prejudice conference of experts wherein they were to discuss matters of agreement and disagreement (Supreme Court Rule 35(4)(k)).

While the Alberta Rules of Court (Alta Reg 124/2010) and the proposed Revised Queen’s Bench Rules of Saskatchewan, which are expected to come into force July 1, 2013, do not appear to expressly incorporate hot-tubbing provisions, the broad powers given to Case Management Judges could arguably allow for hot-tubbing (see Alberta Rule 4.14(1)) and proposed Revised Saskatchewan Rule 4-7(1)). Specifically, these Rules provide that a Case Management Judge or another Judge may order steps be taken to “identify, simplify or clarify the real issues in dispute” or “make an order to facilitate an application, proceeding, questioning or pre-trial proceeding”.  After considering the Federal Rules, and those in Ontario and British Columbia, the ability to order hot-tubbing under the Alberta or proposed Saskatchewan Rules is not a great leap, particularly as the Federal Courts Rules refer specifically to the pre-trial “hot-tub” meeting as a way to offer clarification or resolution to the issues in dispute.

Proponents of pre-trial and/or trial hot-tubbing suggest it as a way to reduce costs, decrease court time, and enhance the communication and comprehension of difficult issues by providing independent and objective expert evidence.  By placing experts in similar or closely related fields on a panel, advocates suggest the adversarial approach normally realized through the litigation process will become less evident.  Proponents suggest areas of expert agreement will quickly be realized and technical conversations concerning areas of disagreement will more clearly identify the actual issues in dispute. Justice Binnie, as he then was, also has suggested the theory that experts provide their evidence on a panel will produce more measured and complete evidence rather than errors or discrepancies being argued days, weeks, or months later.

Professor Gary Edmond, Associate Professor at the University of New South Wales in Australia, who has written extensively on “hot-tubbing”, states “[c]oncurrent evidence may reduce costs, encourage settlement, and expedite legal proceedings, and the presence of opposing experts may exert some discipline on witnesses” [emphasis in original].  However, Professor Edmond also cautions that using the hot-tubbing process may also “create difficulties and introduce new risks” (“Merton and the Hot Tub”, 2009).  Some of the difficulties to consider are: the possibility of retaining experts who are loud and aggressive to ‘win’ the panel or dominate a pre-trial meeting, increased costs and logistical problems by requiring experts to have pre-trial meetings, possibility of lengthening the pre-trial or trial process if experts end up in a passionate debate, increased preparation time to prepare experts for the panel presentation and unusual questioning possibilities, pre-trial pressure to acquiesce or compromise with other experts without the necessary evidentiary basis, and the risk of pre-trial expert hot-tubbing sessions where counsel is not present becoming part of the record at trial.

Both proponents and opponents of pre-trial and trial expert hot-tubbing have valid positions that are unlikely to be completely resolved, particularly when Canadian civil courts are so new to the hot-tubbing process and, even more so, as it appears even the hot-tubbing-seasoned Australia is still struggling with the benefits and limits of expert hot-tubbing. There is no question that hot-tubbing is spreading across Canadian civil courts in various forms and there will be new,  interesting, and difficult issues for lawyers and insurance professionals to deal with as our judiciary begins to utilize non-traditional ways of managing the litigation process, including pre-trial and/or trial hot-tubbing of experts.

Note: While hot-tubbing of experts is a new trend in Canadian civil cases, it is acknowledged that expert (and even non-expert witness panels) are often used in the administrative hearing process. In addition, a comprehensive review of all Canadian civil court rules was not undertaken and readers are encouraged to review their applicable civil rules or consult with their legal counsel to determine whether pre-trial or trial hot-tubbing is provided for expressly or impliedly, particularly if the provincial or territorial rules have been recently amended.