The Fundamental Change in the Role of Experts in the Ontario Civil Justice System

There is a new dawn approaching for experts giving evidence in Ontario civil proceedings.

Recall the landmark Supreme Court decision in R. v. Mohan, [1994] 2 S.C.R. 9 (S.C.C.) where Sopinka, J. set forth the four criteria for the admission of expert evidence:

(a) relevance; 

(b) necessity in assisting the trier of fact; 
(c) the absence of any exclusionary rule; and 
(d) a properly qualified expert.
Thirteen years later, The Civil Justice Reform Project 2007-The Coulter Report, authored by The Honourable Mr. Justice Coulter A. Osborne, Q.C., made several recommendations regarding expert evidence, including (82-84):

* Joint experts should not be mandatory, but the option should be considered by parties to reduce costs.
* Amend the Rules of Civil Procedure to require judges at pre-trials, settlement conferences and trial management conferences to consider and make orders regarding the number, if any, of experts that may be called, considering how many are reasonably required for for the fair and just resolution of the proceeding and whether the proposed number of experts is proportional to the amount at stake.
* Explicitly clarify that the duty of an expert is to assist the court on matters within his or her expertise, overriding obligation to the client.
* Permit judges to order opposing experts to meet to identify, clarify, and resolve disagreements.

The amendments to Ontario Rules of Civil Procedure relating to experts’ new overriding duty to the court and modifications to the evidentiary and fact-finding purpose of expert reports will be in force on January 1, 2009. The following are the key amendments:

RULE 4.1 DUTY OF EXPERT

DUTY OF EXPERT

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
(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue. O. Reg. 438/08, s. 8.
 

Duty Prevails

(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged. O. Reg. 438/08, s. 8.



Some of the existing Rules relating to disclosure and production of expert reports and expert opinions remain apposite:

* Rule 30.03(1) – Parties must disclose all documents within 10 days after the close of proceeding;

* Rule 30.07 – There is an ongoing obligation to disclose any additional documents that were not disclosed or correct any errors in previously filed documents.

* Rule 31.10(1) prohibits the discovery of experts engaged by a party in preparation for contemplated or pending litigation.

* Exception to above rule: Rule 36.01(3) – an expert may be examined for the purpose of having the testimony available as evidence at trial, but only with leave of the court or agreement of the parties, and only after the moving party has served the expert’s report on all other parties. This rule is to allow the expert’s evidence to be admitted to trial when there is significant cost or inconvenience in having the expert testify in person at trial.

* Rule 36.01(4) Before moving for leave to examine an expert witness, the moving party shall serve on every other party the report of the expert witness referred to in subrule 53.03 (1) (calling expert witness at trial) unless the court orders otherwise.

* Rule 36.01(5) Where an order is made under subrule (2) for the examination of a witness in respect of a matter that is or will be the subject of a pending or intended proceeding, the court may, if it considers it appropriate to do so, order the moving party to pay to any other party, in advance of the examination, any or all of the costs reasonably expected to arise for the other party from the examination and any related cross-examination or re-examination.

With respect to Rule 20- Summary Judgment, the general powers of the motions judge have been widened considerably, including directing the parties’ experts to conduct a without prejudice meeting to attempt to narrow or resolve any outstanding issues:

Powers of Court

20.05 (1) Where summary judgment is refused or is granted only in part, the court may make an order specifying what material facts are not in dispute and defining the issues to be tried, and order that the action proceed to trial expeditiously. O. Reg. 438/08, s. 14.

Directions and Terms

(2) If an action is ordered to proceed to trial under subrule (1), the court may give such directions or impose such terms as are just, including an order,

k) 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;



Order re Experts, Costs

(5) If an order is made under clause (2) (k), each party shall bear his or her own costs. O. Reg. 438/08, s. 14.

In light of the new Duty of Expert-Rule 4.1, quaere  whether Rule 52.03 “Court Appointed Experts ” should be recast or renamed.
With respect to expert witnesses generally, Rule 53.03 provides the fundamental functional requirements for experts’ reports:

EXPERT WITNESSES
 
Experts’ Reports

53.03

(1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference required under Rule 50, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). O. Reg. 438/08, s. 48.

(2) A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). O. Reg. 438/08, s. 48.

(2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information:

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.

7. An acknowledgement of expert’s duty (Form 53) signed by the expert. O. Reg. 438/08, s. 48.
 

Schedule for Service of Reports

(2.2) Within 60 days after an action is set down for trial, the parties shall agree to a schedule setting out dates for the service of experts’ reports in order to meet the requirements of subrules (1) and (2), unless the court orders otherwise. O. Reg. 438/08, s. 48.

See: O. Reg. 438/08, ss. 48, 68 (1).

All of the foregoing begs the question: Are any of these rules changes targeted at experts really necessary ? Most court-certified or qualified experts are members of professional organizations or societies, which promulgate  a set of rules of professional conduct, including a duty of objectivity. For example, the Institute of Chartered Accountants of Ontario (ICAO) Handbook, February 2009, at page 5 07, provides:

Objectivity

Members do not allow their professional or business judgment to be compromised by bias, conflict of interest or the undue influence of others.

Antonin I. Pribetic

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