Inventory of Reforms

Summary of Ontario Expert Evidence Rules – Cost of Justice

Year:
2007

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

Jurisdiction:
Ontario

Court:
Superior Court of Justice

Publications:
Ontario Rules of Civil Procedure
Evidence Act, RSO 1990, c E.23
Ontario Rules of Civil Procedure

Description of Reforms:
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.

Results:
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.

Revision History:
This summary was last reviewed in May 27, 2013