. . .
Widespread acceptance can be an important factor in ruling particular evidence admissible, and “a known technique which has been able to attract only minimal support within the community,” . . . may properly be viewed with skepticism.
In tandem with these common law principles, the Rules of Court played a crucial role. The admissibility of expert reports prior to the enactment of the new Rules was subject to Rule 40A, which set out specific notice requirements. Those requirements were often noted in their breach rather than compliance. The attitude of the court regarding late notice was typified by the following quote:
It may be that late delivery of a report may cause such prejudice to the opposing party that the evidence cannot be permitted lest injustice result. Such cases must be very rare indeed, particularly if the trial is without a jury and an adjournment can be granted without undue inconvenience (Hunter v. Ellenberger (1988), 25
C.P.C. (2d) 14 (Ont. H.C.J.), quoted with approval by
Coultas, J. in Gibson v. Rickett; Gibson v. Hall (1996),
15 B.C.L.R. (3d) 208 (S.C.))
In many\most cases, therefore, the party served with late notice was often faced with a dubious choice – accept the notice or seek an adjournment to allow for preparation for cross-examination. Given the costs and delay associated with an adjournment, the evidence was usually admitted without further adieu.
With the enactment of the new Rules in 2010, the notice requirements were enhanced. The relevant notice provisions are now found in Rule 11. That Rule provides, inter alia:
- All expert evidence must be contained within a written report. The practice of giving notice of oral expert evidence under Rule 40A(3) was abolished;
- The requirements for how all expert reports must be structured (Rule 11-6(1));
- The certification that the expert is aware of the need to be impartial and that he\she has complied with that duty (Rule 11-6(2));
- The 84 day notice requirement (Rule 11-6(3))
Rule 11-7 only permits expert opinion evidence at trial where it conforms with R. 11-6.
The court is given jurisdiction to allow expert evidence at trial where specific criteria are met:
(a) facts have come to the knowledge of one or more of the parties and those facts could not, with due diligence, have been learned in time to be included in a report or supplementary report and served within the time required by this Part,
(b) the non-compliance is unlikely to cause prejudice
(i) by reason of an inability to prepare for cross-exam- ination, or
(ii) by depriving the party against whom the evidence is tendered of a reasonable opportunity to tender evidence in response, or
(c) the interests of justice require it.
Note that these criteria are disjunctive.
