Inventory of Reforms

One of the significant cost items in litigation is the use of expert witnesses to provide opinions on scientific or technical issues. The Honourable Geoffrey Davies, A.O., has been an outspoken advocate of reform in the area of experts for over a decade. He identified three major reasons why change from the traditional approach was necessary:

• Adversarial bias and polarization - The natural human tendency to feel the need to do your best for the side you represent results in the polarization of opinions and may result in a distortion of both the real question and the real answer. The result is often a "battle of the experts."
• Complexity - The more complex the question the harder it is for the nonexpert judge to determine the extent to which contradictory expert opinions are reliable.
• Cost - There is waste and duplication in selecting and discarding experts, preparing experts for trial, and cross-examining opposing experts.

a. Duty (Rule 11-2)

Another significant issue found by the CJRWG was the increasingly adversarial nature of expert testimony. To address this issue, the new rules provide that an expert's duty is to assist the court and not to advocate for any party.

b. Reports (Rule 11-6)

Anyone wishing to tender an expert's report into evidence at trial must serve the report on the other parties at least 84 days (12 weeks) before trial. Anyone wishing to tender an expert's report in response to another expert's report, must do so at least 42 days (6 weeks) before trial. The information that must be in an expert's report has been expanded and is set out in Rule 11-6(1).

c. Joint experts (Rule 11-3)

While the rules do not require the use of joint experts, they facilitate the use of such experts by setting out a protocol for their use in Rule 11-3.

d. Experts conferring

The CJRWG's original recommendations provided for opposing experts to confer prior to trial in order to clarify the technical issues in dispute. The mandatory nature of this requirement, however, was subject to criticism in the consultation. As a result, the mandatory nature of this requirement has been dropped from the new rules, but a judge or master can order the experts to confer at either a CPC (Rule 5-3(1)(k)(iii)) or at a Trial Management Conference (Rule 12-2(9)(i)).

e. Disclosure of expert's file

Rule 11-6(8) clarifies the rules on producing the contents of an expert's file.

f. Direct exam of expert

Rule 11-7(5) clarifies the common-law rules on when an expert can provide a report and provide testimony on direct examination.