Subdivision 2 Expert witnesses generally
31.19 Parties to seek directions before calling expert witnesses
(1) Any party:(a) intending to adduce expert evidence at trial, or(b) to whom it becomes apparent that he or she, or any other party, may adduce expert evidence at trial,must promptly seek directions from the court in that regard.(2) Directions under this rule may be sought at any directions hearing or case management conference or, if no such hearing or conference has been fixed or is imminent, by notice of motion or pursuant to liberty to restore.(3) Unless the court otherwise orders, expert evidence may not be adduced at trial:(a) unless directions have been sought in accordance with this rule, and(b) if any such directions have been given by the court, otherwise than in accordance with those directions.(4) This rule does not apply to proceedings with respect to a professional negligence claim.
31.20 Court may give directions regarding expert witnesses
(1) Without limiting its other powers to give directions, the court may at any time give such directions as it considers appropriate in relation to the use of expert evidence in proceedings.(2) Directions under this rule may include any of the following:(a) a direction as to the time for service of experts’ reports,(b) a direction that expert evidence may not be adduced on a specified issue,(c) a direction that expert evidence may not be adduced on a specified issue except by leave of the court,(d) a direction that expert evidence may be adduced on specified issues only,(e) a direction limiting the number of expert witnesses who may be called to give evidence on a specified issue,(f) a direction providing for the engagement and instruction of a parties’ single expert in relation to a specified issue,(g) a direction providing for the appointment and instruction of a court-appointed expert in relation to a specified issue,(h) a direction requiring experts in relation to the same issue to confer, either before or after preparing experts’ reports in relation to a specified issue,(i) any other direction that may assist an expert in the exercise of the expert’s functions,(j) a direction that an expert who has prepared more than one expert’s report in relation to any proceedings is to prepare a single report that reflects his or her evidence in chief.
31.21 Expert evidence in chief to be given by way of experts’ reports
Unless the court otherwise orders, an expert witness’s evidence in chief must be given by the tender of one or more expert’s reports.
31.22 Expert witness to provide details of contingency fees or deferred payment schemes
(1) A person who is engaged as an expert witness in relation to any proceedings must include information as to any arrangements under which:(a) the charging of fees or costs by the expert witness is contingent on the outcome of the proceedings, or(b) the payment of any fees or costs to the expert witness is to be deferred,in, or in an annexure to, any report that he or she prepares for the purposes of the proceedings.(2) If a report referred to in subrule (1) indicates the existence of any such arrangements, the court may direct disclosure of the terms of the engagement (including as to fees and costs).
(cf SCR Part 39, rule 2; DCR Part 28A, rule 2; LCR Part 38B, rule 2)
(1) An expert witness must comply with the code of conduct set out in Schedule 7.(2) As soon as practicable after an expert witness is engaged or appointed:(a) in the case of an expert witness engaged by one or more parties, the engaging parties, or one of them as they may agree, or(b) in the case of an expert witness appointed by the court, such of the affected parties as the court may direct,must provide the expert witness with a copy of the code of conduct.(3) Unless the court otherwise orders, an expert’s report may not be admitted in evidence unless the report contains an acknowledgment by the expert witness by whom it was prepared that he or she has read the code of conduct and agrees to be bound by it.(4) Unless the court otherwise orders, oral evidence may not be received from an expert witness unless the court is satisfied that the expert witness has acknowledged, whether in an expert’s report prepared in relation to the proceedings or otherwise in relation to the proceedings, that he or she has read the code of conduct and agrees to be bound by it.
31.24 Conference between expert witnesses
(cf SCR Part 36, rule 13CA; DCR Part 28, rule 9D; LCR Part 23, rule 1E)
(1) The court may direct expert witnesses:(a) to confer, either generally or in relation to specified matters, and(b) to endeavour to reach agreement on any matters in issue, and(c) to prepare a joint report, specifying matters agreed and matters not agreed and reasons for any disagreement, and(d) to base any joint report on specified facts or assumptions of fact,and may do so at any time, whether before or after the expert witnesses have furnished their experts’ reports.(2) The court may direct that a conference be held:(a) with or without the attendance of the parties affected or their legal representatives, or(b) with or without the attendance of the parties affected or their legal representatives, at the option of the parties, or(c) with or without the attendance of a facilitator (that is, a person who is independent of the parties and who may or may not be an expert in relation to the matters in issue).(3) An expert witness so directed may apply to the court for further directions to assist the expert witness in the performance of his or her functions in any respect.(4) Any such application must be made by sending a written request for directions to the court, specifying the matter in relation to which directions are sought.(5) An expert witness who makes such an application must send a copy of the request to the other expert witnesses and to the parties affected.(6) Unless the parties affected agree, the content of the conference between the expert witnesses must not be referred to at any hearing.
31.25 Instructions to expert witnesses where conference ordered before report furnished
If a direction to confer is given under rule 31.24 (1) (a) before the expert witnesses have furnished their reports, the court may give directions as to:(a) the issues to be dealt with in a joint report by the expert witnesses, and(b) the facts, and assumptions of fact, on which the report is to be based,including a direction that the parties affected must endeavour to agree on the instructions to be provided to the expert witnesses.
31.26 Joint report arising from conference between expert witnesses
(cf SCR Part 36, rule 13CA; DCR Part 28, rule 9D; LCR Part 23, rule 1E)
(1) This rule applies if expert witnesses prepare a joint report as referred to in rule 31.24 (1) (c).(2) The joint report must specify matters agreed and matters not agreed and the reasons for any disagreement.(3) The joint report may be tendered at the trial as evidence of any matters agreed.(4) In relation to any matters not agreed, the joint report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the court.(5) Except by leave of the court, a party affected may not adduce evidence from any other expert witness on the issues dealt with in the joint report.