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Dennis v. Ontario Lottery And Gaming Corporation, 2011 ONSC 7024 (Div. Ct.) (rule 4.1 – duty of expert witness; rule 53.03 – expert witnesses)

Judgment Released: December 2, 2011  Link to Judgment

Rule 4.1 confirms that an expert’s duty of impartiality prevails over any duty owed to the parties who retained the expert. The new procedures in Rule 53.03(2.1) requiring the execution of an Acknowledgement of Expert’s Duty applies only to trials, not to class action certification motions; however, “one could make the case” that it would be good practice on a certification motion to include the matters set out in Rule 53.03(2.1) in an expert’s report.

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Dennis v. Ontario Lottery And Gaming Corporation, 2011 ONSC 7024 (Div. Ct.) (rule 4.1 – duty of expert witness; rule 53.03 – expert witnesses)

Pearsell v. Welsh, 2011 ONSC 4582 (S.C.J.) (Rule 53.03 – expert witnesses)

Judgment Released: July 27, 2011   Link to Judgment

In this costs decision following a plaintiff’s victory at trial in a simplified procedure action, the plaintiff sought, among other things, disbursements relating to an expert report. The report had been served 12 days before the pre-trial and 38 days before trial. The defence objected to paying the costs of the report and the expert’s trial attendance because the report breached the 90-day service rule of Rule 53.03.  The Court held that although the report was served late, there was no prejudice, the defence had ample time to prepare for their examination, and the expert evidence was helpful. Nonetheless, the Court stated that the breach of the rule “must be sanctioned” and deducted $2,500 from the disbursements claimed for the report.

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Pearsell v. Welsh, 2011 ONSC 4582 (S.C.J.) (Rule 53.03 – expert witnesses)

Tyler v. Sannoufi, 2011 ONSC 3111 (S.C.J.) (Rule 76 – simplified procedure; Rule 53.03 – expert witnesses)

Judgment Released: May 26, 2011   Link to Judgment 

The simplified procedure Rule, Rule 76, does not specifically address the requirements for expert evidence.  If the requirements in Rule 53.03(2.1) are to be applied to the simplified procedure, some latitude must be given by the court.  Otherwise, the process could become very expensive, which is precisely the harm that Rule 76 is designed to avoid. 

Here, the defendant offered his own accountant as a expert witness.  The accountant’s affidavit contained factual and opinion evidence.  The plaintiff objected that the accountant was not impartial and did not verify the factual underpinning for his opinion. While the accountant filed a Form 53 Acknowledgement of Expert’s Duty, the plaintiff argued it could not cure the deficiencies in the evidence. The Court admitted the evidence but the weight given to the evidence was impacted by the fact that the accountant cannot be considered completely objective.

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Tyler v. Sannoufi, 2011 ONSC 3111 (S.C.J.) (Rule 76 – simplified procedure; Rule 53.03 – expert witnesses)

Clarke v. Hassan, 2011 ONSC 467 (S.C.J.) (Rule 29.1 – discovery plan, Rule 53.03 – expert witnesses)

Judgment Released: January 20, 2011   Link to Judgment

The third party brought a motion for several heads of relief, including concerning a discovery plan and an expert’s report.  

The discovery plan, agreed to by the plaintiff, specified that the plaintiff would be produced for discovery by the third party on a given date and would provide a sworn Affidavit of Documents on that date, but that “documents will be provided no later than five days prior to examinations for discovery”.  At the discovery, the plaintiff’s Affidavit of Documents listed over 300 documents which had not been produced before the discovery. The Court called this an “unacceptable lapse in good judgment”, potentially requiring further attendances for discovery and increasing the costs of the discovery process for the third party. 

The plaintiff “insist[ed] on only producing or advising of experts 90 days before the pre-trial Conference in accordance with Rule 53.03(2)”. The Court stated that a party should not “sit on an expert’s report”, and that the practice in civil litigation is for a party to provide a copy of an expert opinion very soon after it is obtained. Strict reliance on the minimum time limits in the Rules of Civil Procedure will not permit the smooth administration of justice, as “[t]he failure to produce expert reports on a timely basis produces requests for adjournments that, in the interests of justice, must often be granted”.

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Clarke v. Hassan, 2011 ONSC 467 (S.C.J.) (Rule 29.1 – discovery plan, Rule 53.03 – expert witnesses)

Basque v. Stranges, 2010 ONSC 5605 (S.C.J.) (Rule 53.03 – expert reports)

Judgment Released: October 12, 2010  Link to Judgment

A motion was brought by new counsel to the Plaintiff to strike the action from the trial list because, among other reasons, the expert medical reports which were served before January 1, 2010, did “…not contain the information and documents now required by Rule 53.03(2.1) . . . and as a result they are probably inadmissible at trial and will have to be updated”. 

In dismissing the Plaintiff’s motion, the Court noted that Rule 53.03 contained no transition provisions, but found (contrary to the finding in Onex Corp. v. American Home Assurance  (2009), 100 O.R. (3d) 313 (S.C.J.) that rule 2.03 could not be used for transitional purposes) that if the absence of a transitional provision resulted in an injustice to a party, the purpose of Rule 2.03 is to address such an injustice.  The Court went on to find that compliance with the new requirements of Rule 53 have “flexibility” in respect of actions which included expert reports and were set down for trial prior to January 1, 2010:  “I agree that rule 53.03 is a procedural enactment and, therefore, the law generally requires that it apply retroactively. Nevertheless, as with most good legal principles, there are exceptions and so the retroactive application of rule 53.03 is not absolute. This can be seen within rule 53.03 itself which contains sufficient flexibility to respond to specific situations where relief from retroactivity is necessary for a just result: subrule 53.03 (2.2) contains the words, “unless the court orders otherwise”; subrule 53.03(3) speaks of, “except with leave of the trial judge”; and, subrule 53.03(4) provides that times may be extended or abridged by a pre-trial judge or the trial judge or “by the court, on motion.” Furthermore, parties have rule 2.03 which provides that “[t]he court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time.   I do not think it was contemplated that all actions (and there could be hundreds of them) involving expert reports that were set down for trial before the amendments to rule 53 would be struck from the trial list as not being in compliance with the new rule. If parties to such actions are unable to agree on a time schedule for the delivery of expert reports or other issues that go to their admissibility at trial, they may resort to the subrules of 53.03 that I have mentioned or to rule 2.03.”

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Basque v. Stranges, 2010 ONSC 5605 (S.C.J.) (Rule 53.03 – expert reports)

Bakalenikov v. Semkiw, 2010 ONSC 4928 (Master) (Rule 53.03 – expert witnesses)

Judgment Released: September 15, 2010  Link to Judgment

In the second of a “trilogy” of cases relating to Rule 53.03 and the duties of experts (Adams v. Cook being the first, link to summary on this blog and 2010 ONSC 4946 being the third, to be released), the Court dealt with a motion by the Plaintiff that his medical examination be video or audio recorded. 

The Court commented on the Osborne Report and the case law relating to the duties of experts, noting that “… the new duty of an expert to the court comes with a previously unaddressed potential issue for trial counsel. Before, the plaintiff could remind the jury that the expert was retained by the defendant. Now counsel for the defence may seek to enhance the evidence of such experts by pointing out that the expert is the court’s expert, without any risk of bias as his or her primary duty is now to the court. Surely,  if it can be argued that such experts bear an implicit imprimatur of the court, the court has an obligation to ensure to the extent possible that the experts have understood and acted in accordance with their new, very different, responsibilities.”  

The Court noted that the Expert’s Acknowledgement and Undertaking required by Rule 53.03(2.1) ”…must be read as seeking to improve the way expert evidence is procured.”  Further, the Master noted that each Court “…expects and relies upon frank and unbiased opinions from its Experts. This is a major sea change which requires practical improvements to past opaque processes. How are long time plaintiffs’ and defendants’ experts to be “trusted” to change their stripes? At the initial stages skilled, licenced professionals clearly must be taken at their word that on principal they take their Form 53 Undertaking to Court seriously. They are clearly promising to bring a new, transparent and objective mind set to the drafting of their reports and to their subsequent testimony.”

In reaching its finding and ordering that an audio (but not video) recording of the examination be taken, the Court acknowledged that the proposed expert had on at least three occasions had his opinions disregarded by the Court for bias and advocacy for the defendant and had been criticized as being “an advocate for the party calling him as a witness.”  The Court further noted that the defendant/respondent on the motion presented no evidence that a recording would be impractical, intrusive or an obstacle to the expert conducting the interview and examination.  In fact, the Court noted that the expert in question has deposed that if ordered to record the examination, he would not conducted the examination at all.  In ordering an audio recording of the examination, the Master noted that “That is of course his prerogative.”

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Bakalenikov v. Semkiw, 2010 ONSC 4928 (Master) (Rule 53.03 – expert witnesses)

Girao v. Cunningham, 2010 ONSC 4607 (Master) (Rule 4.1.01 – duty of expert; Rule 53.05 – expert witnesses)

Judgment Released:  August 27, 2010  Link to Judgment

[Note: this decision is currently under appeal.]

In a motor-vehicle injury case, the plaintiff had undergone several medical examinations, but none to date by defence experts.  The defendant sought an order for three defence medicals; the plaintiff resisted any defence medicals, given the volume of already-existing medical reports. 

The Court granted the defendant’s motion, but noted that the new Rules regarding experts mean that the plaintiff was entitled to expect a different approach to defence medical examinations by doctors appointed by an insurer due to the duties now set out in Rule 4.1.01 and 53.03.  The Court quoted from the discussion on these Rules in Beasley v. Barrand, 2010 ONSC 2095, including that the Rules are aimed at “reining in the growing use of and reliance upon the evidence of experts at trial.”  The Court ordered counsel for the defendant to provide the Endorsement to their experts, who would have to acknowledge receiving and reading the Endorsement in their Acknowledgement of Expert’s Duty.

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Girao v. Cunningham, 2010 ONSC 4607 (Master) (Rule 4.1.01 – duty of expert; Rule 53.05 – expert witnesses)

Adams v. Cook, 2010 ONCA 293 (O.C.A.) (Rule 53.03 – expert witnesses, appeals)

Judgment Released: April 22, 2010  Link to Judgment

Five judges of the Court of Appeal heard an appeal of a Divisional Court decision which expanded the ability of plaintiffs to audio-record defence medical examinations.  In reaching its ruling, the Divisional Court had referred to the Osborne Report and the concerns raised therein about expert evidence in civil actions.  In the course of allowing the appeal, Armstrong, Laskin, and Sharpe JJ.A., noted that the Osborne Report did not recommend the routine recording of defence medical examinations.  Lang and Gillese, JJ.A., dissenting, noted on the same topic that while the Osborne Report did not address the recording of defence medicals as an issue one way or the other, “[i]n any event, the Osborne Report recommendations were not meant to be exhaustive.  In addition, the law is a continually evolving process.”

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Adams v. Cook, 2010 ONCA 293 (O.C.A.) (Rule 53.03 – expert witnesses, appeals)

Beasley and Scott v. Barrand, 2010 ONSC 2095 (O.S.J.) (Rule 53.03 – expert witnesses)

Judgment Released: March 22, 2010 and April 7, 2010  Link to Judgment

In a personal injury action, the defendants sought to have three reports admitted pursuant to Rule 53.03. The reports were prepared in relation to the plaintiff’s claim for insurance benefits, years in advance of the amendments to the Rules. The Court found that even though an Expert’s Acknowledgment had subsequently been signed by each of the proposed experts, the forms appeared to have been executed without the author reading or obtaining any understanding of the content. The Court found that almost all of the preconditions of Rule 53.03(2.1) had been breached by the proposed reports. In denying the defendants’ application, the Court also noted that, to avoid the risk of misleading the jury, the plaintiff would be required to lead evidence respecting the statutory accident benefits system, the function of medical examiners retained in the context of accident benefit claims, and how those roles differ from doctors retained by parties to provide fair, objective and non-partisan opinions to the Court on the issues set out in the pleadings.

The Court discussed the rationale behind the new Rule 53.03, and the concerns that existed prior to the amendment, including the problem of “hired guns” and “opinions for sale”. The Court noted that the Rule has been amended to eliminate the practice of tendering evidence of questionable value, particularly when it has been created in another proceeding, at the insistence of a party not before the Court, to address matters beyond the scope of those at the pending trial. The Court acknowledged that historically, courts have allowed experts retained outside the four corners of the litigation to attend and give expert evidence at trial but stated that those cases predate the amendments to Rule 53, noting that while there may be cases where the court would relieve against non-compliance to ensure a fair adjudication of the issues, such experts should still comply with Rule 53.03.

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Beasley and Scott v. Barrand, 2010 ONSC 2095 (O.S.J.) (Rule 53.03 – expert witnesses)