Expert Evidence and the
New Flu le
53.03
NeE •4•eeler
•
ntario's new
Rule 53.03, which
expert evidence,
likely
to significantly
appears
after
deals with
affect actions set for trial
February 16, 1998.
on or
The "Old" Rule 53.03
witness at trial to serve an
before
no less than 10 days
the start of trial. An expert could not
testify if the 10 day rule had not beentrial
respected, except with leave of the
judge. This version of Rule 53.03 continin which the trial
ues to apply to actions
starts before February 16, 1998.
expert
expert report
call
an
The "old" Rule 53.03 (see schedule "A"
for text) required a party who intended to
13
The "New" Rule 53.03
The "new" Rule 53.03 (see schedule "A"
for text) requires expert reports to be
served 90, 60 or 30 days before trial, rather
than 10 days before trial. The new Rule
53.03 came into force October 20, 1997 and
applies to actions set for trial on or after
February 16, 1998.
A party who intends to call an e•t
witness must now serve the expert's
report not less than 90 days before the
start of trial. A party who intends to call
an expert witness at trial to respond to
another party's expert witness must serve
the expert's report not less than 60 days
before the start of trial. A party may also
serve a "supplementary report" of an
expert not less than 30 days before the
start of the trial.
expert
respect to
testify
with
an issue, except with leave of
the trial judge, unless the substance of his
or her testimony with respect to that issue
is set out in a report served in accordance
with Rule 53.03.
An
wimess may not
Excusing Non-Compliance with
Rule 53.03
Not surprisingly,
have the power to
with Rule 53.03.
the court continues to
excuse
non-compliance
The judge at the pre-trial conference and
the court on motion have the express
power to extend or abridge the time
provided for service of expert reports.
The trial ju d ge may also permit expert
testimony notwithstanding non-compliance with the Rule 53.03, and must grant
leave to admit the evidence on appropriate terms unless to do so would prejudice
the opposite party or unduly delay the
relying
the Rules notes
above, a party that has not complied with
the new Rule 53.03 but still wishes to
introduce expert testimony could also rely
on more general Rul• [see, for example,
In addition to
!4
on
Rules 1.04(1), 2.01 (1), 2.03 and 3.02(1)]
giving the court power to avoid a draconian application of the time limits in Rule
53.03.
party who has failed
A
to
requirements
comply
with the
for expert
number of arguments to raise in favour of excusing the
non-compliance. The court may be
receptive to these arguments, particularly
during the infancy of the new Rule 53.03.
Nonetheless, the prudent and expected
approach is for counsel to comply with
the new Rule 53.03 in the first place.
new
service
reports evidently has
a
Summary:
The Effect of the
New Rule 53.03
The new Rule 53.03 will likely have the
effect of increasing prospects for settle-
merit earlier in an action. Counsel will be
required to give additional consideration
to the merits of a client's case. Expert
evidence will be available to all parties
earlier than is often the case now, so that
the parties will be better able to assess
their respective cases. The new Rule 53.03
should also result in more meaningful
pre-trial conferences, in that most expert
reports (except perhaps "supplementary
reports") should be in front of the judge
hearing the pre-trial conference. The
effect on pre-trial conferences will be
particulary marked in Toronto, where pre-
trial conferences are now directed to be
held no more than 6 to 8 weeks before trial
(i.e., after the 90 day and 60 day cutoffs for
expert reports).
Rule 53.03 applies to actions in
progress as well as actions commenced
after the rule came into force. Counsel
with a trial set to start April 6, 1998, for
The
new
example,
must serve
January 6,1998.
an
expert report by
The most immediate
effect of the new Rule 53.03 has therefore
likely been a deluge of calls from trial
experts, requesting "prompt
experts' reports.
Neil W•eeler, Lerner £¢ Associates, Toronto,
(4i6)601-2384.
lawyers
receipt"
*
to
of the
SCHEDULE "A"
"Old" Rule 53.03
E•ert
V•itnes•es
53.03(1)
A
to call an expert witness at trial shall, not less than ten
before the commencement of the trial, serve on every other party to
the action a report, signed by the expert, setting out his or her name,
address and qualifications and the substance of his or her proposed
party who intends
days
testimony.
No expert witness may testify, except with leave of the trial
subrule (1) has been complied with.
53.03(2)
judge,
unless
"New" Rule 53.03
IL•ert
Witnesses
Experts" Reports
to call an expert witness at trial shall, not less than 90
before the commencement of the trial, serve on every other party to
the action a report, signed by the expert, setting out his or her name,
address and qualifications and the substance of his or her proposed
53.03(1)
A
party who intends
days
testimony.
witness at trial to respond to the
not less than 60 days before the
of
trial,
the
commencement
serve on every other party to the action a report,
signed by the expert setting out his or her name, address and qualifications
and the substance of his or her proposed testimony.
party who intends to call an expert
expert wimess of another party shall,
53.03(2)
A
for
Failure •o Address Issue in
Report
(a)
a
report served under this rule,
supplementary report
less than 30 days before
a
53.03(4)
Supplementary R•ort
An expert witness may not testify with respect to an issue, except with
leave of the trial judge, unless the substance of his or her tes•ony with
respect to that issue is set out in,
53.03(3)
Extension
or
or
or
served on every other party to the action not
the commencement of the trial.
Abridxment of Time
The judge may at the pre-trial conference, or the court may, on motion,
extend or abridge the time provided for the service of a report or
supplementary report under this rule.
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