Aug 05, 2022 in News Legal News

Legal News: Ontario Superior Court Adds “Reasonable Explanation” Requirement Under Rule 53.03

A recent amendment to the Ontario Rules of Civil Procedure has changed how courts respond to late-served expert reports. Plaintiffs and defendants in personal injury cases can no longer rely on Rule 53.08 as an "escape clause" to admit expert evidence.

The Rule Before March 31, 2022

Rule 53.03 of the Rules of Civil Procedure required parties intending to call an expert witness at trial to serve the expert's report at least 90 days before the pre-trial conference. Opposing counsel could then submit a responding report no less than 60 days before the pre-trial conference.

However, Rule 53.08 provided:

If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave shall be granted on such terms as are just and with an adjournment if necessary

It allowed parties to serve expert evidence later than the timelines laid down by the Rules of Civil Procedure, with the reasonable confidence that the judge would allow them.

"Late Service of Expert Reports...a Chronic and Frequent Issue"

The late service of expert reports has long been a subject of dispute in personal injury litigation. Trial judges called into question the practice for raising trial costs and delaying hearings.

In Balasingham v Desjardin Financial Security, Justice Firestone said, "...late requests to adjourn trials are still being made, both at pre-trial conferences and before trial, as a direct result of the ongoing practice of late delivery of expert reports by one or both parties."

"This practice of late delivery of expert reports despite the passage of agreed upon and scheduled delivery dates must stop."

Changes to Rule 53.08 of the Rules

Effective March 31, 2022, changes to Rule 53.03 came into effect. Rule 53.08 now provides:

If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave may be granted if the party responsible for the applicable failure satisfies the judge

Essentially, it changes how trial judges will consider motions arising from the late service of expert evidence and its admissibility at trial. It establishes a "new test" in which the party requesting late service will have to:

1. Provide a reasonable explanation for the failure;
2. Show that granting leave to serve the reports will not prejudice the opposing party in such a way that cannot be compensated by costs or adjournment;
3. Show that it will not cause undue delay in the conduct of the trial.

Courts Are Taking a Tougher Stance on Expert Evidence Served Late

In a recent case, Agha v Munroe, Justice Mark L. Edwards was faced with a similar issue. Justice Edwards noted, "The court…must be satisfied that there is a reasonable explanation for the failure to serve the experts reports within the timelines specified by the Rule." He found the plaintiff had failed to reasonably explain why expert evidence should be allowed over three years after the pre-trial conference.

Personal injury lawyers and plaintiffs can no longer expect courts to agree to late service of expert reports. In circumstances beyond the lawyer's control, courts will expect a "reasonable explanation" for failing to comply with Rule 53.08.

Working With Experienced Personal Injury Lawyers Is More Important Than Ever

A personal injury claim hinges on many factors, and you need an experienced team of personal injury lawyers to navigate the complex legal landscape.

Book a free, no-obligation consultation today to discuss your concerns with us. We'll take time to understand your matter and tell you what your next steps should be.