The New Rules – Writing Reports and being Qualified as an Expert at Trial

Prepared by Stacey L. Stevens of Thomson, Rogers© 2010

PDF of The New Rules

On January 1, 2010, the Rules of Civil Procedure were amended in response to the recommendations of former Associate Chief Justice of Ontario Coulter Osborne at the conclusion of the Civil Justice Reform Project.  These amendments have, in part, changed the Rules relating to the form, content and delivery of expert reports and reflect a concern that experts were too focused on advocacy rather than upholding their duty to the Court of independence, fairness and objectivity¹.   The goal of the amendments is to institute reforms that will improve access to justice, improve efficiency and reduce delays.

The purpose of this paper is to provide medical and rehabilitation practitioners with an understanding of who the Court considers an expert to be, the criteria for report writing and the Court’s expectations of expert witnesses at Trial.

Who is an “expert?”

The admissibility of expert evidence is an exception to the general rule that forbids opinion evidence from witnesses who have no personal knowledge of the facts in issue.    Conversely, an expert witness is permitted to testify with respect to inferences or opinions he or she has drawn based on facts that have been proven in the case.  In other words, an expert is a witnesses who can provide the Judge or Jury with inferences or opinions which, due to the technical nature of the facts, they are unable to formulate due to a lack of experience².

For as long as expert witnesses have been allowed to testify, expert bias has been at the forefront of the Court’s concern.  As such, in an attempt to balance the Court’s recognition that expert evidence “is of necessity and a mainstay in the litigation process”³ with the existence of expert bias, Justice Osborne recommended that experts be subject to an expressly prescribed overriding duty to the Court when he stated as follows:

Accordingly, Rule 4.101(1) was added to the Rules of Civil Procedure in order to reinforce the principle that an expert owes a duty of impartiality and objectivity to the Court and not to the party that has retained her.  This duty is described as follows:

In order to fulfill the criteria of Rule 4.01(1), experts must acknowledge their duty in writing by delivering an Acknowledgement of Expert’s Duty form with each report⁵.  This requirement reinforces the common law principle that expert evidence must be objective; and must be provided to the Judge or Jury impartially without bias. In this way triers of fact can more fairly decide issues that involve matters outside their experience and knowledge.

Report Writing

A further amendment was made in order to create a common framework for the information that must be included in an expert’s report.  Rule 53.03(1), (2), (2.1) and (2.2) of the new Rules provides as follows:

While this amendment may appear overwhelming, it is arguable that this framework simply reflects what had already been established by the common law.  In Marchand v. Public General Hospital et al⁶ Mr. Justice Laskin, on behalf of the Court described the substance requirements of the old Rule 53.03(1)⁷ as being as follows:

38. In our view, these cases indicate that the “substance” requirement of rule 53.03(1) must be determined in light of the purpose of the rule, which is to facilitate orderly trial preparation by providing opposing parties with adequate notice of opinion evidence to be adduced at trial.  Accordingly, an expert report cannot merely state a conclusion.  The report must set out the expert’s opinion and the basis for that opinion.  Further, while testifying, an expert may explain and amplify what is in his or her report but only on matters that are “latent in” or “touched on” by the report.  An expert may not testify about matters that open up a new field not mentioned in the report.  The trial judge must be afforded a certain amount of discretion in applying rule 53.03 with a view to ensuring that a party is not unfairly taken by surprise by expert evidence on a point that would not have been anticipated from a reading of an expert’s report.

There are two factors within the framework of Rule 53 that call for further discussion in order to ensure that expert reports fully comply with the new requirements.  Firstly, expert reports must set out “the instructions provided to the expert in relation to the proceeding”.  In other words, the expert must now disclose what information she received from the instructing solicitor even though this information may, at one time, have been considered privileged.  This includes the instructions given when retained and any further instructions that may follow in any subsequent communications.  Subsequent communications likely include written, electronic and oral.

Secondly, experts must specifically comment on “the expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range”.    

Meet and confer

The requirement that experts give a summary of the range of reasons for their own opinion is linked to the introduction of the Court’s power to order opposing experts to “meet and confer” in order to clarify disparate interpretations and narrow the issues in dispute.  Mr. Justice Osborne’s rationale for this addition reflects the opinion that experts were too focused on advocacy rather than upholding their duty to the Court of independence, fairness and objectivity:

As a result, Rules 50.07(1)(c) and 20.05(2) were created.  These new Rules state as follows:

Rule 20.05(1) states

On plain reading Rule 20.05(k) permits a Judge to exercise discretion in ordering opposing experts to meet and confer.  This exercise of discretion should be based on a cost benefit analysis. In this context, consider the comments of Mr. Justice Moore in Suwary v. Women’s College Hospital⁸ where, in obiter, he criticized the approach taken by the opposing experts in presenting their opinions:

Giving evidence at trial

There are four criteria that control the admissibility of expert opinion evidence at trial. This criteria is found in the common law and is not impacted by the changes to the Rules of Civil Procedure.  The four criteria are:

• The evidence must be relevant to the matters in issue.
• The evidence must be necessary in assisting the trier of fact.
• The absence of any exclusionary rule; and
• The evidence must be presented by a properly qualified expert.

It is up to the trial Judge to determine whether expert opinion evidence will be admissible.  This “gatekeeper” responsibility lies at the heart of the present evidentiary regime governing the admissibility of expert opinion evidence⁹.  Accordingly, before an expert will be allowed to give opinion evidence, the witness will be questioned under oath to ensure that she has sufficient specialized knowledge, skill or experience to give the opinion.   How the expert has acquired “specialized” knowledge is not limited to education or practical experience alone.  It can come from a combination of formal education, private study, scientific study, work experience or other personal observation or involvement with the subject matter¹⁰.   This process is commonly referred to as “qualifying” the witness.  It should be noted that once an expert is qualified, this does mean she is qualified to testify at future trials. 

In Song v. Hong¹¹, Justice Moore was asked to qualify three witnesses all of whom were qualified, trained and experienced in Ontario. Their expert opinions addressed the future care needs of a person who lives and works in Korea and were informed by hearsay evidence.  In ruling whether these witnesses were to be qualified as experts in this particular case, Justice Moore stated as follows:

Given Justice Moore’s comments, rehabilitation professionals who are retained to provide opinion evidence would be well advised to ensure that they have consulted with the appropriate treating medical specialists during the preparation of their report.  This consultation can be accomplished through meeting with the specialist and/or presenting the report for approval by way of a sign back letter.

Having specialized knowledge alone may not be enough in order to be qualified to testify.  The Judge will also consider whether the expert or the report bring to the Court an air of bias to one side or the other. The factors taken into account when considering expert bias include¹²:

1. The nature of the expert’s stated expertise or special knowledge;
2. Any statements the expert has made publicly or in publications regarding the prosecution itself [plaintiff or defendant] or evidencing philosophical hostility toward particular subjects;
3. The expert’s history of retainer exclusively or nearly so by the prosecution or the defence;
4. The expert’s long association with one lawyer or party;
5. The expert’s personal involvement or association with a party;
6. Whether a significant percentage of the expert’s income is derived from court appearances;
7. The size of the fee for work performed or a fee contingent on the result in the case;
8.  lack of a report, a grossly incomplete report, modification or withdrawal of a report without reasonable explanation, a report replete with advocacy and argument;
9. Performance in other cases indicating lack of objectivity and impartiality;
10. A history of successful attacks on the witness’s evidence;
11. Unexplained differing opinions on near identical subject matter in various court appearances or reports;
12. Departure from, as opposed to adherence to, any governing ethical guidelines, codes or protocols respecting the expert witness’s field of expertise;
13. Inaccessibility prior to trial to the opposing party, follow through on instructions designed to achieve a desired result, shoddy experimental work, persistent failure to recognize other explanations or a range of opinion, lack of disclosure respecting the basis for the opinion or procedures undertaken, operating beyond the field of stated expertise, unstated assumptions, work or searches not performed reasonably related to the issue at hand, unsubstantiated opinions, improperly unqualified statements, unclear or no demarcation between fact and opinion, unauthorized breach of the spirit of a witness exclusion order; and
14. Expressed conclusions or opinions which do not remotely relate to the available factual foundation or prevailing special knowledge.

At the end of the day, it is clear that the amendments flowing from the Civil Justice Reform Project reflect the Court’s requirement that experts “be and appear to be independent of the party and counsel who retained the services of the expert” and “demonstrate objectivity and impartiality in the analysis and opinions that he or she is allowed to give¹³”.    Whatever role the expert has undertaken in order to assist counsel in drawing a fuller appreciation of the disputed facts and possible inferences, the expert must set aside this role at trial and remain independent and impartial as “the court expects nothing more and will accept nothing less¹⁴”.