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Evidence Inventory

Year Title Jurisdiction Body Responsible Court Criteria and Methods of Evaluation Description Description of Reforms Development Links to Publications Publications Related Reforms Results Status Subjects Timeline
1983 BC Summary Trial (Rule 18A)

British Columbia

British Columbia Supreme Court

BC Supreme Court summary trial rule authorizing a judge in chambers to give judgment based on affidavits or similar evidence.

Rule 18A

A party brings their application by way of a Notice of Motion in the action. The application must be heard at least 45 days before the date set for trial if one has been set.

Although often referred to as "trial by affidavit", Rule 18A generally permits parties to adduce a variety of forms of evidence. In addition to affidavits, parties may rely on answers to interrogatories, discovery evidence, formal admissions, and statements of expert opinion provided that the statement appears in the proper form or, failing that, is ordered admissible by the court. The usual rules regarding the use of discovery transcripts and interrogatories apply in the summary trial context...

In some cases, the court might expand the scope of permissible evidence to include cross-examination on affidavits, either before the court or before another person. In other cases, a party may be precluded from obtaining one or more of the above forms of evidence because it left it too late in the day to do so. In some cases the court will order that the Rule 18A application proceed absent, for example, the examination for discovery of one party because the requesting party had ample time to conduct the discovery in advance of the hearing but opted not to do so.

Summary Trial at 3
 
Rule 18A has been interpreted by the courts to allow for summary trials and judgments in a broad range of circumstances. A judge should only decline to hear an application for a summary trial where he or she is unable to make critical findings of fact necessary for a determination of the issues and where cross-examination of the affidavits or other means of clarifying the evidence would not remedy this problem, or where it would be unjust to determine the issues raised in the application.

The chambers judge should consider the amount involved, the complexity of the matter, and any prejudice due to delay if the matter is set down for trial under the normal procedure, including the costs consequences of so ruling.

Discussion Paper at 4

Proposed Rule 9-8 (Summary Trial)

The proposed new Rules of Civil Procedure incorporate Rule 18A as Rule 9-8. A new major proposed change to the Rule is that parties may only apply to the court for judgment under this rule if they are authorized to do so by a case plan order.
 

Comparison to a conventional trial

Many of the differences between a summary trial and a full trial are also the advantages of a summary trial. Parties proceeding under Rule 18A can expect to secure an earlier hearing date than they would for a conventional trial simply because of shorter length of time required. The time, expense, and resources required will generally be far less in the summary process because of the shorter hearing, the absence of live witnesses, and often, the truncated discovery process.

Although bringing an 18A application does not operate to stay all pre-trial discovery procedures such as document production and examinations for discovery, the court retains discretion to order the postponement of an examination for discovery pending the hearing of an 18A application that has the potential to dispose of the claim or some part of it. However, the court will not do so where the discovery evidence might contradict the documentary evidence on which the moving party relies. Furthermore, because a summary trial application might only dispose of some of the issues between the parties, it should not be used to prevent the other party from presenting their larger case.

Other differences of note are that there are no juries in summary trials, and because there will generally be no viva voce evidence, parties may not subpoena witnesses. In terms of costs awards, the general rule is that where the applicant is unsuccessful and the matter is referred to the trial list, the costs of the application will be costs in the cause. However, where the summary trial court finds that there are exceptional circumstances, such as an application that could be described as frivolous, the court may award costs of the application against the unsuccessful applicant.

In B.C., summary trials proceed in chambers and counsel appear un-robed.

Summary Trial at 5-6

Rule 18A was introduced in British Columbia in 1983 in response to a concern that Rule 18, governing applications for summary judgment, was often found to be ineffective in that motions for judgment could easily be defeated. Introduction of Rule 18A was meant "to expedite early resolution of cases by authorizing a judge in chambers to give judgment in any case where he can decide disputed questions of fact on affidavits or by any of the other proceedings authorized by the rule unless it would be unjust to decide the issues in such a way" (Summary Disposition at 5).

In evaluating the rule, the British Columbia courts stated that the elusive and unattainable goal of perfect justice in every case could not always be assured even after a conventional trial and the safeguards furnished by the Rule and the common sense of the chambers judge were sufficient for the attainment of justice in any case likely to be found suitable for this procedure. Chambers judges were cautioned to be careful, but were encouraged not to be timid in using the Rule for the purpose for which it was intended.

Summary Disposition at 6
 
Of the proceedings commenced in the B.C. Supreme Court, approximately 1.4% are decided by full trial and approximately 1.2% are decided by summary trial. This has allowed British Columbia to not increase its number of trial judges in approximately 20 years. Rule 18A has proven to be an effective means of increasing access to justice, while reducing costs to litigants and to the judicial system.

Summary Trial at 2

Permanent Implementation

  • affidavit evidence
  • chambers hearings
  • rules of court
  • summary trials
  • Supreme Court of British Columbia
1983 Rule 18A introduced
July 2007 Draft Rules released
January 2010 Projected implementation of new rules
2007 Summary of Ontario Expert Evidence Rules - Cost of Justice

Ontario

Superior Court of Justice

Overview of the rules in the Ontario Superior Court of Justice which attempt to reduce the cost and delay associated with expert evidence.

This summary documents Ontario's rules which attempt to reduce the cost and delay associated with expert evidence.

Ontario's expert evidence rules are governed by the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The rules are created by the Civil Rules Committee under the authority of theCourts of Justice Act, R.S.O. 1990, c. C.43, ss. 65(1) & 67(1). Evidence Act, R.S.O. 1990, c. E.23 also regulates the admission of expert evidence. 

Evidence Act

Section 12 limits the number of expert witnesses that can testify to three without leave of the court.

Where it is intended by a party to examine as witnesses persons entitled, according to the law or practice, to give opinion evidence, not more than three of such witnesses may be called upon either side without the leave of the judge or other person presiding.

R.S.O. 1990, c. E.23, s. 12.

Unlike similar provisions in other jurisdictions, this limit has been interpreted to apply to the entire case as opposed to each separate issue. Each party is limited to three experts in total (unless leave of the court is granted for additional experts). (See Bank of America Canada v. Mutual Trust (1998), 39 O.R. (3d) 134 at 137-138.)
 

NOTE: Some of the below rules are subject to amendments that will come into force on January 1, 2010

Rule 53.03: Expert Witnesses

  • The current version of Rule 53.03 came into effect in 1997.
  • R. 53.03(1) - All the relevant contact information of the expert, the substance of their testimony, and the expert report must be submitted 90 days before trial to all parties.
  • R. 53.03(2) - If a party wishes to rebut the expert testimony, they must submit the expert's contact information, the substance of their testimony, and their report to all other parties at least 60 days before trial.
  • R. 53.03(3) - An expert cannot testify to any issue unaddressed in their report unless granted leave by the trial judge.

Rules 30 & 31

  • Rule 30.03(1) - Parties must disclose all documents within 10 days after the close of proceedings (1990).
  • 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 30 Amendments CIF January 1, 2010 *The requirement to disclose any material "relating to any matter in issue" has been changed to "relevant to any matter in issue". The "relevance" standard is narrower, and is meant to reduce the amount of documents being disclosed. 
 

  • 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. (CIF July 2007)
  • 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. (CIF July 2007)

Rule 76 - Simplified Procedure

  • Introduced March 1996
  • Applies to claims of $50,000 or less. (Excludes class actions and actions under the Construction Lien Act.)
  • Rule 76.04 - prohibits examinations for discovery (oral and written), cross-examination on affidavits and examinations of witnesses on a pending motion.
  • Rule 76.03(1) - Requires all documents to be served within 10 days after the close of pleadings
  • Rule 76.03(2) - Requires a form to be filed containing a list of names and addresses of all potential witnesses within 10 days after the close of pleadings.
  • Rule 76.03(3) - a witness cannot be called if their name has not already been disclosed in the affidavits.

The Civil Justice Reform Project's 2007 report 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.
  • cost of justice
  • delay
  • expert evidence
  • Ontario Superior Court of Justice
Date Event