DUTY CALLS: THE NEW ROLE OF EXPERTS IN THE ONTARIO CIVIL JUSTICE SYSTEM
Colin P. Stevenson —
OBA CONFERENCE
The relevant rule changes with respect to experts are in rules 4.1, 31.06(3), 53.03 and to a lesser extent 50.06, 50.07, 50.08 and 50.11. Copies are attached as schedule “A”.
The significant changes are that:
(a) the default requirement is that the main expert’s reports are to be served not less than 90 days before the rule 50 pre-trial conference (rather than commencement of trial) with responding expert witness reports due 60 days before the pre-trial. There is no change to rule 53.03(3)(b) whereby supplementary reports are to be served no less than 30 days before trial;
(b) notwithstanding these “default” timing requirements, new rule 53.03(2.2) requires the parties to agree on a schedule for exchange of experts’ reports within 60 days after the action has been set down for trial;
(c) while the reports are still not evidence (subject to exceptions such as s. 52 of the Evidence Act—medical reports), the contents of reports are now specified in some detail.
Previously the signed report only had set out the expert’s name, address and qualification and the substance of the proposed testimony. Now the report must contain (rule 53.03(2.1)):
“1. The expert’s name, address and area of expertise.
2. The expert’s qualifications and employment and educational experiences in his or her area of expertise.
3. The instructions provided to the expert in relation to the proceeding.
4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.
5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.
6. The expert’s reasons for his or her opinion, including,
i. a description of the factual assumptions on which the opinion is based,
ii. a description of any research conducted by the expert that led him or her to form the opinion, and
iii. a list of every document, if any, relied on by the expert in forming the opinion.”
(d) Rule 4.1 is a new rule formally setting out the expert’s obligation:
4.1.01 (1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,
(a) to provide opinion evidence that is fair, objective and non- partisan;
(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and
© to provide such additional assistance as the court may reasonably require to determine a matter in issue.
Duty Prevails
(2) The duty in sub rule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.
(e) The expert must also acknowledge this duty using form 53 (copy attached as schedule “B”).
There have been no changes to:
(i) rule 53.08 whereby the court shall grant leave to admit expert evidence on short notice or no notice (unless there is prejudice or undue delay);
(ii) rule 52.03 whereby the court may appoint experts on its own initiative.
Nor have there been any changes to the Evidence Act, R.S.O. 1990, c.E.23, s. 12 (number of experts) and s. 52 (medical reports).
Note that civil case management (rule 77) applies only where a case has been assigned to case management. Obviously orders concerning the relevant experts may be tailor-made in actions governed by that rule. In a similar vein in the context of motions for summary judgment the motion’s judge may make certain specific orders dealing with experts: thus, rule 20.05(2)(k) provides:
20.05(2)(k) [if there is to be a trial the court may make an order] that any experts engaged by or on behalf of the parties in relation to the action meet on a without prejudice basis in order to identify the issues on which the experts agree and the issues on which they do not agree, to attempt to clarify and resolve any issues that are the subject of disagreement and to prepare a joint statement setting out the areas of agreement and any areas of disagreement and the reasons for it if, in the opinion of the court, the cost or time savings or other benefits that may be achieved from the meeting are proportionate to the amounts at stake or the importance of the issues involved in the case and,
(i) there is a reasonable prospect for agreement on some or all of the issues, or
(ii) the rationale for opposing expert opinions is unknown and clarification on areas of disagreement would assist the parties or the court;
THE OSBORNE REPORT
Justice Osborne’s report for the Civil Justice Reform Project was presented in November 2007. This report is the genesis for these and the other significant rule changes implemented this year (O.Reg. 438/08). Chapter 9 of the Osborne Report deals with expert evidence. Pages 76-81 are attached as schedule “C”.
The Civil Justice Reform Project was concerned about the proliferation of experts testifying at trials, as well as a perception that experts had become increasingly adversarial, rather than objective advisors. Justice Osborne considered various options, not all of which found his approval, nor were all of his recommendations implemented. Options considered, but rejected, included proposals that parties should retain a single, joint expert or that multiple experts could only produce a single, joint report or that experts could be examined for discovery (but cf. rule 31.10(1)). The law in the UK and Australia has also already been reformed to deal with similar issues. Those jurisdictions have, however, tried to reduce costs by moving to a single-expert model (Justice Osborne thought the latter was a good idea which would not usually work in practice).
THE EXPERT’S DUTY
The rule amendments dealing with experts are designed to weed out “hired guns” and “opinions for sale”. The rule changes presuppose that expert bias will be precluded where the expert is expressly required to acknowledge an overriding duty to the court, rather than the party. Although Justice Osborne was somewhat half-hearted in recommending the changes. With respect to a signed certification of independence he stated that: “An express duty would reinforce existing professional obligations and ensure that this duty is consistently applied to all professionals that provide expert evidence.” Note, however, that the courts have long been inclined to throw out biased reports which were more in the nature of advocacy.1
MEET AND CONFER
Although Justice Osborne thought the experts should “meet and confer” in advance of trial, this proposal was not implemented as a general proposition (although see rule 20.05(2)(k) which allows for this as part of an order dealing with a summary judgment motion and see also rule 50.07(1)© which incorporates this power into the pre-trial judge’s arsenal).
TIMELINES
The timelines for delivering experts’ reports were substantially modified in recognition that parties are often unwilling to have meaningful settlement discussions without reports in hand. The reports are now to be available for the pre-trial, on the understanding that the pre-trial will be held reasonably close to trial.
The timelines (90 and 60 days before the pre-trial conference for the main reports) are intended to be default timelines, although the default times are likely be more common than an agreed schedule.
The intention is that the parties will agree on a schedule within 60 days after the action has been set down for trial (rule 53.03(2.2)).
Note, however, that rule 53.08 was not amended. This rule says that the trial judge shall grant leave to serve an expert’s report late (possibly on terms) unless to do so will cause prejudice or undue delay. Justice Osborne’s recommendation to change “shall” to “may” was not implemented.2
STANDARD REPORTS
The rule changes in rule 53.03(2.1) which list mandatory contents for reports are intended to introduce a degree of standardization to reports and to further guard against bias and partiality. The latter is somewhat achieved by requiring that the instructions given to the expert are to be included. Not that this is really anything new.3
1 Fraser River Pile & Dredge Ltd. v. Empire Tug Boats Ltd. (1995), 92 R.T.R. 26 (Fed.T.D.).
2 For the mandatory nature of this rule see Hunter v. Ellenberger (1988), 25 C.P.C. (2d) 14 (Ont.H.C.).
3 See, for example, Carmen Alfano Family Trust v. Piersanti, (March 18, 2009) 2009 CarswellOnt 1576 (S.C.J.).
CONCLUSION
It is likely the rule changes will focus most experts on greater objectivity. At least it will put an end to the “paperless” production of experts’ reports. A “paperless” report is one (no matter the complexity or length) created without any written instructions or background; and usually without any drafts having been kept. When I recently showed a draft retainer letter to U.S. counsel they strongly opposed the formality of a retainer letter for an expert.4 This will now change. 4 The actual email is attached as schedule “D”.