EXPERT EVIDENCE UNDER THE NEW RULES OF CIVIL PROCEDURE ARTHUR ROBERT CAMPORESE Camporese Sullivan Di Gregorio

Introduction The use of expert evidence in litigation in Ontario, and in the insurance and personal injury field in particular, has increased greatly over the last 20 years. Since the introduction of the threshold and no fault system in Ontario in 1990, it is rare to find a motor vehicle accident case without multiple expert opinions. It has become standard practice for Plaintiff's counsel to obtain expert reports with respect to their client's injuries, past and future economic losses and past and future care costs.

Introduction, cont… In motor vehicle accident cases, Ontario Regulation 461/96 requires that Plaintiff counsel adduce the evidence of a physician, trained and experienced in the assessment and treatment of the type of impairment that is alleged in order to prove that the injuries meet the threshold. The impact of the catastrophic designation under the Statutory Accident Benefits Schedule, and the availability of enhanced accident benefits for those who are deemed catastrophic has lead to the need to retain and call expert evidence on this issue.

Introduction, cont… As a result of such changes, civil trials and personal injury actions are rarely less than two weeks long and are frequently much longer. The need for expert evidence is one of the greatest causes of cost and delay in litigation at the present time.

Introduction, cont… The amendments to the Rules (Regulation 438/08), with respect to experts, are aimed at reducing expert bias, narrowing the issues requiring expert evidence at trial, narrowing the disclosure obligations with respect to expert opinions, and requiring expert reports to be served earlier in the process. Many of the amendments to the Rules of Civil Procedure were intended to respond to the costs and delay related to expert witnesses. Camporese Sullivan Di Gregorio BARRISTERS AND SOLICITORSCamporese Sullivan Di Gregorio BARRISTERS AND SOLICITORS

Expert Bias and the Expert’s Duty to the Court New Rule (1) reads as follows: (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. Pursuant to new Rule (2.2) the expert must sign an acknowledgment of this duty and this is to be contained in the report.

Expert Bias, cont… Counsel will be aware that the Court is concerned with expert bias, and will be looking for experts that will appear to be Objective and reasonable and not an advocate for a particular position. It is important to be aware of the need under the current Rules to lead expert evidence that does not appear to be overly one sided, slanted or biased and that is reasonable, and credible in the eye of the trier of fact.

Form 53

Sub-Rule (2.1) Rule (2.1) sets out required contents for experts reports.

It Reads as Follows: (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 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 acknowledgment of expert's duty (Form 53) signed by the expert.

Sub-Rule (2.1), cont… The rule refers to reports "provided for the purposes of subrule (1) or (2) [i.e. for the purposes of calling an expert witness at Trial.]." It is unclear whether this is broad enough to capture reports produced pre-litigation, for example under s. 42 of the SABS. Presumably, if the witness is to be called, the requirements must be met, and prudent counsel will ensure that these reports comply with the Rule. Instructions to experts must now be included in the report at the time it is served.

Service of Expert Reports Pursuant to Rule 53.03(1)(2) expert reports need to be served 90 days prior to the pre-trial conference, as opposed to 90 days prior to trial. Any party intending to call an expert witness to respond to an expert witness of another party must serve the report 60 days prior to the pre- trial conference. It will be important to retain experts early in the process, and immediately following examinations for discovery. This may lead to situations where experts are being retained before the complete productions have been received. Use will need tobe made of new rules for discovery plans, and motions to compel productions in a timely matter.

Rule 31.06(3)(a) This provision of the Rules provides that a party may on Examination for Discovery obtain the disclosure of findings, opinions and conclusions of an expert engaged on behalf of the party, provided that the findings, opinions and conclusions of the expert were not made in preparation for or contemplating or pending litigation and for no other purpose. The old Rule provided that findings, opinions and conclusions that relate to a matter in issue were required to be produced. The new Rule provides that only findings, opinions and conclusions relevant to any matter in issue in the action be produced. This is a narrowing of the disclosure obligation.

Conclusion While it remains to be seen if these amendments to the Rules of Civil Procedure will reduce the cost and delay associated with calling experts in insurance or personal injury matters, it does appear that the expense will be moved forward in the process. Experts will need to be retained earlier. Motions for productions in order that expert reports can be generated will need to be brought sooner. The amendments will require that counsel turn their minds to the issue of experts and whether experts are required earlier in the process. Costs associated with respect to expert reports will likely increase in light of the increased obligations on the expert.

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