by Victoria Tremblett April 21, 2022 3 min read

Ontario Regulation 18/22 came into effect on March 31, 2022, making several changes to the Rules of Civil Procedure.These changes are largely aimed at addressing delays and improving efficiency of the Court’s time, which is a scarce resource in today’s legal world. The most significant changes to the rules relate to pre-trial conferences and expert reports.

Pre-Trial Conferences

A new timeline as to when a pre-trial conference will be held has been imposed under the new Rule 50.02(2.1). Pre-trial conferences will now be scheduled at least 30, but no more than 120 days before trial.

Additionally, under the new Rule 50.12(2), if a pre-trial conference is unproductive due to the conduct of a party, that party may be ordered to pay costs.

Finally, complementing the new rules regarding expert reports, parties are now required to file a Certificate of Readiness at least 30 days before the pre-trial, in which they must indicate whether they intend to call expert evidence at trial, and if so, whether the expert’s report was served on the other parties within the time limit prescribed in Rule 53.03(1) or (2), as the case may be. If the report was not served within the applicable timeline, the party must explain the reason why.

In light of the new Rule 50.03.1(1), Form 50A (Certificate of Readiness) has also been added to the Table of Forms.

Expert Reports

Rule 53.03(1) provides that a party who intends to call an expert witness at trial shallserve an expert’s report at least 90 days before the pre-trial conference.  If a party intends to call an expert witness at trial to respond to the expert witness of another party, Rule 53.03(2) requires that party to serve a responding expert’s report at least 60 days before the pre-trial conference.  Pursuant to Rule 53.08(2) if a party fails to serve their expert reports in accordance with the timelines prescribed in Rules 53.03(1) and (2), the expert’s evidence will only be admissible with leave of the trial judge.

Despite the mandatory language (“shall”) in Rules 53.03(1) and (2), before March 31, 2022, Rule 53.08(1) required the trial judge to grant leave to admit the evidence, unless to do so would result in prejudice to the opposing party, or undue delay in the conduct of the trial. The effect of this Rule was such that parties could knowingly, and even intentionally serve an expert report outside of the time limits, in breach of Rule 53.03, and still rely on that report and call that expert at trial, as long as it did not result in prejudice to the opposing party.

Now, however, there is a new test for leave to admit evidence (including expert reports) at trial. The party in breach of the Rules must first be able to provide a reasonable explanation for their failure to comply with the prescribed time limits.  Then, that party must satisfy the trial judge that granting the leave will not cause any prejudice to the opposing party, or undue delay in the conduct of trial.

No longer will parties be able to rely on a lack of prejudice or delay in the conduct of trial to evade the prescribed time limits for serving expert reports.  Rather, parties must have a reasonable explanation for their failure.

Significance of these Rules

The new rules regarding expert reports are of significant importance to the field of health law, as virtually every civil case of alleged health care provider professional negligence will require expert evidence. Generally speaking, the Court does not have the technical expertise to assess whether a health care provider such as a dentist, physician, or nurse, has met the standard of care in specific circumstances, or to determine the precise cause of a plaintiff’s alleged injuries. The Court relies on the parties to adduce expert evidence in support of their position with respect to the standard of care, causation, and often the alleged damages.

Expert reports can have a significant impact on the trajectory of a matter. Expert reports often assist in defining and delineating the key issues for trial. Plaintiff expert reports often assist the Defendant in knowing the case to meet. In matters of alleged malpractice, it is often only after the parties have exchanged expert reports that meaningful settlement negotiations or mediation can take place.

While it is understandable that parties may wish to hold off on incurring the expenses associated with expert reports until absolutely necessary, that approach is unlikely to be accepted anymore. Parties must be organized and efficient in moving matters forward.

 

Our blog does not replace legal advice tailored to your specific situation. At Wise Health Law, we have extensive experience defending allegations of professional negligence and working with expert witnesses. Please contact us to find out if we are able to assist you.



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