Courts no longer amenable to parties coming to pre-trials without their experts' reports ready
This article was produced in partnership with Bogoroch & Associates
Julius Melnitzer of Canadian Lawyer sat down with Yoni SIlberman, Partner at Bogoroch & Associates to discuss recent changes to Ontario’s Rules of Civil Procedure
Amendments to Ontario’s Rules of Civil Procedure enacted in March 2022 have served to establish firm boundaries around the delivery of expert reports and improving trial readiness, says Yoni Silberman, a partner at Bogoroch & Associates LLP, a civil litigation boutique whose focus includes medical malpractice and personal injury cases.
“The amendments demand accountability when it comes to the timing and delivery of experts’ reports – the Rules provide that the Court may even order that costs be paid immediately if a judge finds a pre-trial to be unproductive for reasons relating to a party’s conduct,” Silberman says.
The amendments to Rule 50.02, 50.03.1(1) and 50.12 follow on Rule 53.3(2.2), which requires parties to agree to a schedule for service of expert reports within 60 days after an action is set down for trial.
“The changes were aimed at improving trial readiness, avoiding trial by ambush, maintaining the trial list in an orderly and reliable fashion, as well as reinforcing principles of preparedness and co-operation,” Silberman says.
No longer are courts amenable to parties coming to pre-trials without having served their experts’ reports.
“Courts now expect counsel to be proactive in avoiding delay by conferring and cooperating to avoid trial management issues as reflected by Rule 53.03(2.2),” Silberman says. “Lawyers will be held accountable for their time estimates and number of witnesses.”
The Rules changes could encourage earlier settlements, largely because financial management is a key consideration for insurers who are bound to obtain and serve reports by fixed dates.
“Insurers value saving money, which necessarily includes the tremendous expense associated with obtaining expert reports. The Rules changes can encourage parties to get on the phone, talk about the case, debate the merits, and in some cases, facilitate an out-of-court settlement.” Silberman says. “Both sides give consideration to and value these savings.”
Under Rule 53.08, granting leave for late filing of expert reports was effectively mandatory, unless it caused prejudice to the opposing party that could not be compensated for by costs or an adjournment, or undue delay in the conduct of the trial. Now, under the new Rule 53.08(1), the mandatory language of “shall” is substituted with the discretionary language of “may” regarding the granting of leave by the trial judge to admit evidence.
These changes have already been the subject of several court decisions, including that of Ontario Superior Court Justice Mark Edwards, regional senior judge for Central East region, in Agha v. Munroe, decided in April 2022.
The case arose in the context of a jury trial. After jury selection, the Court discovered that the plaintiff did not have expert reports relating to past and future income loss and medical rehabilitation needs – despite the fact that the pre-trial took place more than three years before the trial’s commencement and the pre-trial judge had set a timeline for delivery of experts’ reports.
Plaintiff’s counsel sought leave to file expert reports the following week. Defence counsel objected, indicating that he would not have an opportunity to deliver responses, necessitating either a mistrial or an adjournment.
Edwards refused to grant leave, noting that the previous rule provided that leave “shall be granted” whereas the new rule’s wording – “may be granted” – was permissive.
Here, the relevant facts were that the plaintiff had offended not only the amended rule, but the pre-trial judge’s order as well. Nor had the plaintiff provided evidence in support of his counsel’s contention that he could not afford the expert reports.
Edwards concluded that he would not grant leave because “the explanation for the failure, in this case, was not a reasonable explanation” and because the delay caused by granting leave would have caused (in the words of the rule) “an undue delay in the conduct of the trial” that would, in his opinion, “have been completely unfair to the jury.”
“Lawyers and litigants need to adapt to the new rule immediately,” Edwards stated. “The late delivery of expert reports simply will not be rubber-stamped by the court.”
This being said, there would always be “circumstances that are beyond the control of counsel and the parties which will fall within the definition of a ‘reasonable explanation.’”
While costs were not in issue given the dismissal of the plaintiff’s application, the Ontario Superior Court recognized their use as a remedy in Cepecawer v. McKevitt, 2023 ONSC 219.
According to Silberman, this case is an important “wake-up call” to counsel to serve their expert reports prior to the pre-trial, failing which they run the risk of their client’s claim being dismissed.
Opinion evidence proffered by expert witnesses, including medical practitioners, life care planners, traffic accident reconstructionists, and forensic accountants, to name just a few, has become a fixture of personal injury litigation. Indeed, many cases, particularly medical malpractice actions, cannot be tried without expert support.
“At Bogoroch & Associates LLP, we understand the critical importance of expert reports and the necessity of their timely delivery,” Silberman says. “Not only to comply with the Rules but also to encourage prompt settlements.”
