OLIVIER
GUILLAUME
The new Rules of Civil Procedure have taken some steps forward in addressing the sometimes contentious issue of when
expert reports are to be served in
personal injury cases. It’s too bad
they weren’t more generous with
a precious commodity when
addressing these sometimes complex matters: the time between
the service of opposing parties’
expert reports.
You will recall that under the
old rules, a party could serve an
expert report 90 days before
trial with the responding party
to serve its own report within
60 days. Nothing was more
frustrating for a defendant than
having to scramble to find an
expert, schedule a mutually
convenient date for the assessment between the expert and
the plaintiff, and serve the
expert’s report within as little as
30 days in order to comply with
the old rules.
Under normal circumstances,
unless a defendant’s lawyer or a law
firm had a predetermined arrangement with medical experts, it could
take more than six months—even
Increasing the
timelines for serving
expert reports from
90, 60 and 30 days
prior to a pre-trial to
180, 120 and 60 days
before a pre-trial
would benefit
everyone involved.
a year—to obtain an appointment
with a medical specialist, complete
an assessment and deliver a comprehensive report.
What was even more frustrating under the old rules, in the
context of personal injury litigation, was that certain plaintiff
side lawyers would serve most, if
not all, of their client’s expert
reports at the 90-day mark prior
to trial without any notice. This
left the other side with the
almost impossible task of
obtaining responding reports in
just 30 days.
To be fair, in my seven or so
years of practice prior to the new
rules, I had only seen that
unfair—some would say opportunistic—practice by a small
number of plaintiff side lawyers.
Inevitably, the defendants’
lawyers would scramble to find
an expert who could respond
within the court’s mandated
30-day deadline. This often led
the defendants to retain experts
who might not be their first…or
even their third choice.
The problem did not end there
given that the experts could be
pressed for time and sometimes
produce subpar reports. This is
understandable given that reviewing binder after binder full of
medical documentation takes time
and the defence medical experts
would simply not be afforded the
necessary time to do so.
There were other problems.
Often, pre-trials in smaller court
jurisdictions were (and continue
to be) scheduled 10 to 60 days
MARCOMARCHI / IS TOCKPHOTO. COM
Olivier Guillaume,
Borden Ladner Gervais LLP
prior to the trial date. Accordingly, plaintiffs would usually
have all of their expert reports
served and ready to go while
defendants might still be waiting
to obtain some or all of their
expert reports. This resulted in
the pre-trial judge usually giving
a more favourable opinion to the
plaintiff given that the defence
would be missing some expert
reports in those cases.
Some lawyers might argue
that it was simply up to the
defendants to obtain their
required expert reports well
before being served with reports
from the plaintiff. The problem is
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that Rule 33 (both before and
after the new rules were implemented on Jan. 1, 2010) mandates
that a defendant is entitled to one
defence medical examination
before needing to seek leave from
the court (if the plaintiff does not
consent to more than one defence
medical examination).
Some cases suggest that service of expert reports is not a “tit
for tat” proposition where the
defence can obtain an expert
report to rebut each of the plaintiff’s expert reports. Accordingly,
it remains difficult for a defendant to ask the court to have a
plaintiff be examined by more
than one expert when the plaintiff
has yet to serve any expert reports.
Other lawyers may express the
view that the parties remain in the
same situation since the 30-day
response time for a responding
party is still in existence under the
new rules, given that expert
reports need to be served 90 days
and responding expert reports
need to be served 60 days prior to
a pre-trial. While this is true, a
new rule, 53.03( 2. 2), addresses
this problem: “Within 60 days
after an action is set down for
trial, the parties shall agree to a
schedule setting out the dates for
the service of expert reports in
order to meet the requirements of
sub-rules (1) and ( 2), unless the
Court orders otherwise.”
This rule forces the parties to
discuss what expert reports they
contemplate obtaining and come
up with a schedule for the dates
they will be served. I have not
found any court decisions provid-
ing more than a cursory inter-
pretation of this rule but, presum-
ably, if one party refuses to discuss
or agree to a reasonable schedule
setting out the dates, a court may
frown upon the offending party if
the other party is faced with
unreasonable timelines.
In my view, the legislature
should consider providing more
time for the parties to prepare
and produce their expert reports.
Increasing the timelines for
serving expert reports from 90,
60 and 30 days prior to a pre-trial to 180, 120 and 60 days
before a pre-trial would benefit
everyone involved.
While some lawyers might
argue that it makes no difference
for a responding party (usually the
defendant) in a personal injury
action to have 30 or 60 days to
provide a report from a reputable
medical practitioner since one
might be unavailable for six to
nine months in any case, 60 days
would reflect a considerable time
increase from 30 days. n
OnTIME
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Since 1981
Olivier Guillaume is a partner
with the law firm of Borden Ladner
Gervais LLP practising mostly
insurance defence litigation out of
its Toronto office.
