Expert Evidence

There is general agreement that the increased use of experts is a factor that increases the cost of litigation and causes delay through trial adjournments. There is very little agreement on what to do about it.

During the consultation phase of this Review, I heard that s. 12 of the Evidence Act, which limits the number of experts “either side” may call to three, subject to leave of the presiding judge to call more, should be consistently enforced. I also heard that s. 12 should be repealed because trial judges never apply it. I think it is safe to say that most trial judges do not raise s. 12 on their own motion and most counsel seem to accept that in some cases more than three experts will be required.

Personal injury trials provide a useful example. In those actions it is frequently necessary to call more than three doctors. In addition, actuarial evidence is often required where there are future loss claims. Many personal injury claims raise “level of care” and more general “future care” cost issues. It is difficult to contemplate a serious personal injury case being presented (or defended) without more than three expert witnesses.

At the 2006 Advocates' Society Policy Forum on Streamlining the Civil Justice System, the expert evidence working group concluded that the proliferation of experts, expert bias and lengthy and uncontrolled expert testimony are major problems in Ontario.  50  Concerns were also raised about the absence of any rule requiring a meeting of opposing experts to seek to narrow disputed issues prior to trial so as to encourage settlement.

The Discovery Task Force in its 2003 report made the following three findings with respect to expert evidence:

  • Expert reports are not produced on a timely basis. Many lawyers mistakenly assume experts can easily complete reports within the 90/60/30 days prescribed by the rules, but experts are rarely able to provide reports, particularly reply reports, within short time periods. As a result, the court often adjourns trials. This leads to additional costs and trial delays.
  • There has been a proliferation of expert reports. The culture of litigation has resulted in an “industry” of competing experts, which unduly increases costs.
  • Parties do not have an opportunity to question experts about their reports prior to trial.

In his 1996 report, Lord Woolf recommended wide-sweeping civil justice reforms for England and Wales.  51  His recommendations relating to expert evidence have largely been implemented in the Civil Procedure Rules in the United Kingdom. The key reforms include the following:

  • Experts have a duty to the court, which overrides any obligation to the person from whom the expert has received instructions or payment  52 . Experts must certify, at the end of the expert report, that they understand and have complied with their duty to the court. 53 
  • The rules contain an express statement that expert evidence “is to be restricted to that which is reasonably required to resolve the proceedings. 54 
  • No party may call an expert or put an expert's report in evidence without the court's permission. 55 Where two or more parties wish to submit expert evidence on a particular issue, the court may direct that only one expert give evidence on that issue. Where parties cannot agree, the court may select an expert from a list mutually provided by the parties or elsewhere. 56 
  • Where there is a single joint expert, each party may give instructions to the expert and the court may give directions about the payment of expert's fees and expenses. 57 
  • At any stage, the court may direct a discussion between experts for the purpose of reaching an agreed opinion on issues, or for preparation of a statement on those issues where they agree and disagree, along with their reasons for disagreeing. 58 

Similar reforms were introduced in 2004 in Queensland, Australia.  59  Their objective is to ensure a single expert gives evidence, to avoid unnecessary costs associated with the parties retaining different experts and to allow for more than one expert only if necessary to ensure a fair trial.

Three primary issues relating to expert evidence have been identified as requiring consideration:

  1. Whether new mechanisms should be introduced to control the proliferation of experts and expert bias.
  2. Whether the time for delivery of expert reports should be altered.
  3. Whether there should be greater disclosure of the information on which an expert's opinion is based.

Proliferation and Bias of Experts

Consistent with the views of the CBA Task Force on Systems of Civil Justice, the Discovery Task Force and the Advocates' Society Policy Forum, the vast majority of those consulted in the course of this Review identified the proliferation of experts as a significant problem that often leads to a battle of competing experts. Some observed that as soon as one party retains an expert, an opposing party is forced to retain an expert. The expert witness merry-go-round bears with it an advantage to a litigant who has significant financial resources.

There is also the issue of partiality. A common complaint was that too many experts are no more than hired guns who tailor their reports and evidence to suit the client's needs. I know that this problem exists, but I hasten to add that not all experts should be tarred with the same brush.

As suggested above, numerous initiatives have been undertaken to improve the expert evidence process in recent years. The 2006 Advocates' Society Policy Forum included an expert-evidence working group that recommended a rule requiring opposing experts to meet before trial to narrow disputed issues. In 2003, the Discovery Task Force made recommendations in the context of the discovery process to adjust timelines regarding expert reports. The task force called for the establishment of best practices for the use of experts and their reports. It also said that consideration should be given to allowing limited examination for discovery of experts before trial, on the expert's consent or by order of the court. In addition, recent reforms regarding experts have occurred in both the United Kingdom and Australia with the goal of reducing costs by moving to a single-expert model. This model would permit multiple experts only if necessary to ensure a fair trial.

In my view, the increasingly popular single-expert model is a good idea that will not work in practice in too many cases. Frequently, the parties have different views on the factual foundation on which the expert's report will be based. There are, however, cases that cry out for a single expert. For example, I think of actuarial evidence in personal injury cases where the core “blank” to be filled in is the present value of the loss of $1,000 per year calculated using a discount rate of X%.

I support a system where a particular case or issue that requires expert evidence can be accommodated by a single expert. However, I do not think that should be the rule. Deciding whether to go with a single expert is a matter best left to counsel to determine on a case-by-case basis. For those relatively few cases that get to trial, I think trial judges can sort out those matters where experts were retained unnecessarily when costs are dealt with.

In some jurisdictions that have explored or implemented the single-expert model, some reservations have been expressed. The Alberta Law Institute, in its 2003 consultation memorandum, suggested that choosing and instructing a joint expert could cause delay, result in numerous court applications and likely cause more problems than it would solve.  60 

There are also mixed reviews from England and Wales about the effectiveness of the single joint expert rule. The reform is said to have been successful “in terms of proportionality, costs, and driving out the 'hired gun' experts.”  61  However, it is not clear that it has had the effect of reducing costs, since some parties are still retaining their own “shadow expert” to opine on the joint expert's report.  62  This inevitably results in additional costs. Moreover, there appears to be case law at the appellate level resulting from the single expert model. The instructions to be given to the joint expert and the desire of one party to appoint an additional expert are areas of concern in England and Wales.  63 

British Columbia's Civil Justice Reform Working Group considered, but did not recommend, mandatory single joint experts in all cases.  64  Instead, it recommended that a case planning judge give directions in appropriate cases as to whether parties must use a single joint expert on a given issue.  65  Similarly, the Discovery Task Force did not recommend single joint experts in all cases. However, its Supplemental Report does include a best practice that encourages lawyers to discuss the possibility of jointly retaining a single expert to reduce costs and avoid the possibility of competing expert evidence.  66 

Lastly on the single-expert issue, I note that rule 52.03 already permits a judge, on motion by a party or on the court's own initiative, to appoint an expert to inquire into and report on any relevant questions of fact or opinion. However, it appears this rule is rarely used.

Section 12 of the Evidence Act limits the number of experts that either party may call to three, unless leave of the judge is obtained. It reads:

Where it is intended by a party to examine as witnesses persons entitled, according to the law or practice, to give opinion evidence, not more than three of such witnesses may be called upon either side without the leave of the judge or other person presiding.

Two other Canadian jurisdictions restrict the number of experts to three, unless leave of the court is obtained (Manitoba, New Brunswick).  67  Alberta does not permit more than one expert on any one subject on behalf of a party, except with leave of the court.  68  Saskatchewan permits each party to call five experts.  69  Quebec, Newfoundland and British Columbia appear to set no limit on the number of experts that may be called.  70  Similarly, Nova Scotia sets no maximum, although it is left to the court to limit the number of expert witnesses.  71 

During consultations, many called upon judges to consistently enforce the three-expert rule or impose other limits on the number of experts, either at trial or at a point before trial where parties have not yet incurred expenses relating to unnecessary expert reports. In motor vehicle litigation, some noted that regulations under the Insurance Act encourage multiple medical experts in various disciplines to be called and this unduly adds to the cost of litigation.  72 

Three mechanisms are considered below to better control the number of experts while permitting such evidence as is necessary to fairly dispose of a case: (i) strict enforcement of the three-expert rule, (ii) early judicial control on the number of experts and (iii) disallowing cost-recovery where in the view of the court the costs related to certain experts may have been incurred unnecessarily.

Section 12 of the Evidence Act seeks to limit the number of experts (to three), but with a balancing mechanism (leave from the trial judge to call more than three experts) that recognizes that more than three experts may reasonably be required in some cases. The problem is that, in practice, s. 12 is ignored by counsel and the courts. In addition, costs relating to an expert will have already been incurred before the trial judge deals with leave for more than three experts or with the issue whether any expert evidence on a particular issue is admissible. Thus, s. 12 does not appear to me to be effective in controlling the number of experts or costs related to experts.

Under the proposed reforms arising from the B.C. Civil Justice Reform Working Group, a case planning conference judge is to fix the appropriate number of experts early in the litigation process, in keeping with the overriding principle of proportionality.  73  This ensures early judicial control over the number of experts, before costs have been incurred in obtaining expert reports. For cases under $100,000 (the equivalent to our rule 76 simplified procedures cases), the B.C. report recommends each party be limited to one expert only, plus one expert to rebut the evidence of the opposing expert. In England and Wales, no expert evidence may be submitted unless the court's permission is first obtained,  74  and expert evidence is restricted to that which is reasonably required to resolve the proceeding.  75 

Given limited judicial resources and costs, I am reluctant to introduce further case conferences. However, discussion of expert-related issues can and ought to regularly occur at pre-trial conferences (rules 50.01, 76.10 and 78.10), settlement conferences (rule 77.14) and trial management conferences (rule 77.15). Clearly the number of experts to be called at trial is an issue that can be advanced and determined at the pre-trial/ settlement conference stage. Appropriate amendments to s. 12 of the Evidence Act should be made to permit a pre-trial/settlement conference judge or master to make binding orders as to the appropriate number of experts to be called at trial.

The issue of “hired guns” and “opinions for sale” was repeatedly identified as a problem during consultations. To help curb expert bias, there does not appear to be any sound policy reason why the Rules of Civil Procedure should not expressly impose on experts an overriding duty to the court, rather than to the parties who pay or instruct them. The primary criticism of such an approach is that, without a clear enforcement mechanism, it may have no significant impact on experts unduly swayed by the parties who retain them.

An expressly prescribed overriding duty to provide the court with a true and complete professional opinion will, at minimum, cause experts to pause and consider the content of their reports and the extent to which their opinions may have been subjected to subtle or overt pressures. Matched with a certification requirement in the expert's report, it will reinforce the fact that expert evidence is intended to assist the court with its neutral evaluation of issues. At the end of the day, such a reform cannot hurt the process and will hopefully help limit the extent of expert bias.

Secondly, this reform would consistently apply a standard for all experts that is already prescribed for some. For example, Article 4150 of the Canadian Institute of Actuaries Standards of Practice – General Standards, provides that “an actuary's testimony should be objective and responsive,” and that “the actuary's role…..is to assist the court…and the actuary is not to be an advocate for one side of the matter in a dispute.” An express duty would reinforce existing professional obligations and ensure that this duty is consistently applied to all professions that provide expert evidence.

Finally, the most relevant organizations on this issue, including the medical experts and actuaries who participated in this Review, endorsed imposing an overriding duty to the court on experts, along with a certification that they understand that duty. England and Wales, Queensland, Australia and the B.C. Civil Justice Reform Working Group have all endorsed this approach.

Expert bias can, I think, best be reduced or somewhat controlled by a “meet and confer” requirement. In its Supplemental Report, the Discovery Task Force proposed this as a best practice where there are contradictory expert reports.  76  The authority to require experts to meet and confer exists in other jurisdictions, including England and Wales,  77  and in Australia  78  under certain circumstances. In Alberta  79  and New Brunswick  80  the court may order experts to meet at the pre-trial stage. British Columbia's Civil Justice Working Group recommended that a case planning conference judge have the authority to order opposing experts to meet to identify areas of agreement or disagreement and narrow the issues.  81 

During consultations, medical experts noted that doctors often work well in forming consensus. They suggested that it would be very useful to have experts meet to consider whether issues can be agreed upon and determine which are still in dispute. For all experts, this reform would provide a level of peer review that expert opinions do not now routinely undergo. It may also assist in clarifying disparate interpretations of underlying facts and assumptions and would introduce a level of accountability that may deter “hired guns.”

Time for Delivery of Expert Reports

The timing of delivery of expert reports under the current rules does not promote early settlement and may result in late requests for trial adjournments. Rule 53.03 requires a party who intends to call an expert to serve opposing parties with a copy of the expert's report not less than 90 days before trial.  82  A party who intends to call an expert to testify in response must serve a responding expert report not less than 60 days before trial.  83  Any supplementary report must be served not less than 30 days before trial. Anchoring these tight timelines to the trial event has been cited as a problem for both litigants and experts, resulting in last-minute requests for trial adjournments.

There was much support among those consulted for delivering expert reports sooner in order to promote early settlement of cases. Without disclosure of these reports, parties are often unwilling or unable to enter into meaningful settlement discussions. It was also said that the 90/60/30 day rule does not work because experts are often too busy to prepare a reply report in 30 days. In bilingual proceedings, these limits can make timely translation difficult.

Several organizations were in favour of anchoring the 90/60/30 day rule to the date of the pre-trial or settlement conference. Personal injury lawyers were largely in favour of this reform, but said that if the pre-trial is too far in advance of the trial (i.e., more than six months), expert reports may not be current by the time of a trial, resulting in additional costs incurred to update the reports.

In its 1996 Report of the Task Force on Systems of Civil Justice, the Canadian Bar Association recommended early disclosure of expert reports and the exchange of expert critique reports in a timely fashion before trial.  84  As mentioned earlier, the Discovery Task Force also considered this issue. It recommended the 90/60/30 day timelines be calculated from the date of the pre-trial or settlement conference, subject to a court order or the parties' agreement otherwise, provided that it remains possible to have meaningful pre-trial or settlement conference discussions.  85 

I note that rule 50.05 already requires parties to make available at the pre-trial all documents that may assist at the pre-trial, “such as medical reports and reports of experts.” Rule 76.10(4) also requires the disclosure of expert reports at the pre-trial for simplified procedure cases, as does rule 77.14(6) for settlement conferences in case managed actions.

Linking the delivery of expert reports to the pre-trial assumes that there will be a pre-trial (in some areas, actions go to trial without a pre-trial) and that the pre-trial is held at a time reasonably proximate to the trial.

In the end it seemed clear to me that one rule, be it the 90/60/30 day rule or some other trilogy of numbers, simply will not work in all cases. In many commercial cases the simultaneous exchange of expert reports is often agreed to by counsel, who include in their agreement a specified time for each side to reply to the other's reports. In negligence actions, that model becomes impractical since a defendant frequently needs to know on what expert evidence the plaintiff's claim is being advanced.

In my view, the timing for delivery of expert reports is best left to counsel. They should be required to determine on a case specific basis when and how experts' reports will be exchanged.

In Toronto, once an action is set down for trial, parties are required to jointly or separately complete a Certification Form to Set Pre-Trial and Trial Dates. This form requires parties to identify when expert reports will be exchanged. Similar to the practice in Toronto, I would recommend that counsel be required to consult and seek to reach agreement on the timing of exchange of expert reports within the 60 day period following an action being set down for trial. This agreement should be documented and be before the pre-trial judge or master.

Where no agreement has been reached, a general default period should be established. Accordingly, I think that rule 53.03 should be amended so that expert reports, responding reports and any supplementary reports must be delivered within 90, 60, and 30 days, respectively, prior to pre-trials and settlement conferences. Since this is a default period, it would apply only where there is no agreement or court order obtained on motion to extend or abridge the default time lines.

There will still be those who will seek late requests to file expert reports on the eve of trial. During Review consultations, some judges said they feel compelled to permit late delivery of expert reports given the language of 53.08(1), which states leave “shall” be granted unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial. Since time must be granted for the filing of reply reports, trial dates often have to be rescheduled. Thus, many proposed that the word “shall” be replaced by the word “may” in rule 53.08(1), so that judges do not feel compelled to allow late delivery of expert reports. I endorse this change, which would provide flexibility in appropriate cases and at the same time signal that allowing late delivery of expert reports should not be taken for granted.

During consultations it became clear that there was meagre support for rule changes that would permit some form of pre-trial oral examination of experts. In my view, this change would add yet another layer of cost in all cases involving experts for a questionable benefit. I do not recommend this reform. If, in a particular case, settlement discussions would be advanced if certain experts were examined, it would be open to counsel to agree to produce the experts for examination. This occurs now in some arbitrations.

Disclosure of Basis for Expert Opinion

I do, however, think that there should be more regulation of the standard content of expert reports.

In Queensland, Australia, experts are required to include in their report a description of their qualifications, all material facts on which their report is based, references to material that has been relied upon in forming the opinion and, if there is a range of opinion, a summary of that range and the reasons why the expert adopted a particular opinion.  86  Similarly, in its Supplemental Report, the Discovery Task Force recommended as a best practice that expert reports should include, at a minimum:

  • Expert's name, address and current curriculum vitae;
  • A detailed description of the expert's qualifications and area of expertise;
  • A description of research conducted by the expert to be able to reach his/her opinion;
  • The nature of the opinion being sought and the specific issues to which the opinion relates;
  • A description of the factual assumptions on which the opinion is based;
  • A list of any documents relied upon in formulating the opinion; and
  • The opinion and the basis for the opinion.

In the U.K., a Practice Direction prescribes the contents of an expert's report. In addition to many of the items recommended in the Discovery Task Force's best practice, the U.K. Practice Direction also requires the expert report to:

  • Contain a statement setting out the substance of all facts and instructions given to the expert which are material to the opinions expressed in the report or upon which those opinions are based;
  • Make clear which of the facts stated in the report are within the expert's own knowledge;
  • Say who carried out any examination, measurement, test or experiment which the expert has used for the report, give qualifications of that person, and say whether or not the test or experiment has been carried out under the expert's supervision; and
  • Where there is a range of opinion on the matters dealt with in the report, summarize the range of opinion and give reasons for his/her own opinion.

Currently, rule 53.03 requires the expert only to set out his/her opinion, name, address, qualifications and the substance of his or her proposed testimony. It is silent about the degree of information to be provided in the report.

Recommendations (Expert Evidence)

  • I do not recommend the mandatory use of joint experts. However, in appropriate circumstances, early in the litigation process, parties should discuss jointly retaining a single expert to reduce costs and avoid unnecessary competing expert reports, consistent with the Discovery Task Force's best practices.
  • Amend rules 50.01, 76.10, 77.14, 77.15 and 78.10 to require the presiding judicial officer at pre-trials, settlement conferences and trial management conferences to consider and make orders as to the appropriate number of experts that may be called by each side and on particular issues and whether expert evidence is admissible.
  • Amend section 12 of the Evidence Act to:
    • Make clear that a judge (or officer) presiding at pre-trial events (i.e., pre-trials, settlement conferences, trial management conferences), who may or may not be the presiding trial judge, may grant leave to call more than three experts (or fewer in simplified procedure cases). The residual discretion of the trial judge to vary a previous order on the number of experts will, I hope, be limited to situations where there has been a significant change in circumstances, or where manifest unfairness would result to a party at trial should they not be permitted to call additional experts.
    • List the following factors for the court to consider in exercising its discretion on the appropriate number of experts:
      • Whether the proposed number of experts is reasonably required for the fair and just resolution of the proceeding;
      • Whether the proposed number of experts is consistent with the principle of keeping costs and the length of the proceeding proportionate to the amount or issues at stake;
      • Any other factors relevant to the fair, just, expeditious and cost-effective resolution of the proceeding.
  • Adopt a new provision (in the Rules of Civil Procedure or Evidence Act) to establish that it is the duty of an expert to assist the court on matters within his or her expertise and that this duty overrides any obligation to the person from whom he or she has received instructions or payment. Require the expert, in an expert report, to certify that he or she is aware of and understands this duty.
  • Permit the presiding judicial official at pre-trials, settlement conferences and trial management conferences to order opposing experts in appropriate cases to:
    • Meet, on a without prejudice basis, to discuss one or more issues in the respective expert reports to identify, clarify and, one would hope, resolve issues on which the experts disagree and
    • Prepare a joint statement as to the areas of agreement, or reasons for continued disagreement
    where in the opinion of the court
    • there may be room for agreement on some or all issues,
    • the rationale for opposing expert opinions is unknown and clarification on areas of disagreement would assist the parties or the court or
    • cost or time savings or other benefits can be achieved proportionate to the amounts at stake or the issues involved in the case.
  • Amend the rules to require parties to discuss the number of experts and the timing for delivery of expert reports within 60 days of the action being set down for trial. As a default, rule 53.03 should be amended to require all expert reports to be exchanged within the 90/60/30 days before pre-trial or settlement conference, subject to the parties' agreement otherwise or court order.
  • Amend rule 53.03 to require all expert reports to include the following information:
    • Expert's name, address and current curriculum vitae;
    • A detailed description of the expert's qualifications and area of expertise;
    • A description of the instructions provided to the expert;
    • The nature of the opinion being sought and the specific issues to which the opinion relates;
    • A description of research conducted by the expert to be able to reach his/her opinion;
    • A description of the factual assumptions on which the opinion is based;
    • The list of any documents relied upon in formulating the opinion; and
    • The opinion and the basis for the opinion. Where there is a range of opinion on the matters dealt with in the report, summarize the range of opinion and give reasons for his/her own opinion.