Expert Reports have an important impact on the development of a matter. They often assist in quantifying damages and determining and defining key issues for trial. Plaintiff’s expert reports often assist the Defendant in knowing the case to meet. Expert evidence has a very important role in litigation, and it is important that we know the rules surrounding this evidence to put our best foot forward for trial.
On March 31, 2022, Ontario Regulation 18/22 came into effect making several changes to the Rules of Civil Procedure (the “Rules”). Some of these changes include the rules involving the use of expert witnesses at trial. To call an expert to give evidence at trial, parties must comply with the updated Rules governing expert evidence. These changes will hopefully encourage parties to attend pre-trial conferences in good faith and provide a level of efficiency to the process of serving expert reports. In short, these changes are primarily aimed at addressing court delays.
Pre-Trial Conferences and Expert Reports
A pre-trial conference is a mandatory step in all proceedings. It allows the parties to explore settlement of the action, or if settlement is not possible, ensures that the matter is ready for trial by narrowing issues, dealing with any procedural or scheduling issues, and identifying who the witnesses will be at trial and how long the trial will take. Parties who are properly prepared for pre-trial conferences can significantly lessen the length of a trial. Serving expert reports and responding reports prior to a pre-trial conference allows all parties, including the presiding judge, to have a meaningful and fruitful pre-trial conference. The reality is that many trial dates are being adjourned because expert reports are not being served on time, and these updated rules will hopefully lessen these unnecessary delays.
If a party intends to call an expert witness at trial, they must serve an expert report at least 90 days before the pre-trial conference (53.03(1)). If a party wishes to call an expert witness at trial to respond to the expert witness of another party, they must serve a responding expert’s report at least 60 days before the pre-trial conference (53.03(2)).
The new test to adduce late expert reports
If a party fails to serve their expert reports in accordance with the prescribed timelines above, the parties have two options. An expert report may be served late with the written consent of all parties, provided that the extension does not impact the trial date (53.03(4)(c)). Without consent, the expert’s evidence will only be admissible with leave of the trial judge.
Prior to the recent changes, the Rules required a trial judge to grant leave to admit delayed evidence, unless to do so would result in prejudice to the opposing party or undue delay in the conduct of the trial. This resulted in parties knowingly serving expert reports outside of the time limits, relying on those reports, and calling the experts at trial, as long as doing so did not result in prejudice to the opposing party. However, the changes to the Rules now provide for a new test for leave to admit expert evidence at trial. Pursuant to Rule 53.08, the delayed expert evidence is admissible with leave of the trial judge only if the defaulting party satisfies the judge that:
- there is a reasonable explanation for the failure; and
- granting the leave would not,
- cause prejudice to the opposing party that could not be compensated for by costs or an adjournment, or
- cause undue delay in the conduct of the trial. O. Reg. 18/22, s. 10 (1).
Gone are the days where parties can solely rely on lack of prejudice or delay in the conduct of trial to evade the prescribed time limits for serving expert reports. Rather, the defaulting party must now also have a reasonable explanation for their failure. Given that these new changes only recently came into effect, we will have to wait for the new rules to be interpreted by the court to understand what will be accepted as a “reasonable explanation for the failure”.
Costs for unproductivity
Additionally, the updated Rules expand the powers of pre-trial judges to order costs against a party who wasted the court’s time by not being ready to proceed at the pre-trial conference. There cannot be meaningful discussions if one party has not obtained the necessary expert opinions to support their position. If the pre-trial judge feels that such a failure has caused the pre-trial conference to be unproductive, costs may be awarded against that party.
Previously, the courts have awarded costs at pre-trial conferences for failing to comply with the Rules, doing so pursuant to Rule 50.12(1) (see Prabaharan v. RBC General Insurance Company, 2018 ONSC 1186). However, with the addition of Rule 50.12(2), which specifically speaks to costs for unproductive pre-trial conference, we will likely be seeing an increase in these types of cost awards. It remains to be seen how this new rule will be applied in awarding costs; however, given the backlog of cases and the limited availability of trial dates, as well as the intention of this rule, it seems likely we will find out in the near future.
Considering the importance of expert reports and the broader power to refuse late-served expert reports given to trial judges with these new changes, counsel need to diarize their files to ensure that expert reports are served within the timelines as set out in the Rules. While in some instances parties may wish to hold off on incurring the expenses associated with obtaining expert reports until it is clear they are necessary, a trial judge may not look at that tactic kindly anymore. Moreover, we need to be aware that scheduling expert assessments may take time in light of both the expert’s and plaintiff’s schedules, and the expert reports themselves take time to finalize. When diarizing deadlines and due dates for various files, these factors should be considered to best manage all matters