Ontario Civil Rules Review: What’s Changing on Expert Evidence

This summary distils the Expert Evidence proposals in the Ontario Civil Rules Review Final Policy Proposals. It explains what’s driving the change, what was initially proposed, what the bar said in consultation, how the Working Group has revised its approach, and what it recommends.

Introduction

Expert evidence drives time, cost, and outcome risk in civil cases. The Working Group recognizes improvements from recent Rule 53.03 amendments (earlier exchange and sanctions for lateness), but identifies persistent problems: unclear expert roles, too many experts, poor timing discipline, perceived bias (“hired guns”), longer trials, and presentation that hinders the understanding of the trial judge. This section proposesThe Working Group has proposed targeted reforms to clarify roles, reduce duplication, front‑load clarity, and streamline how experts are used and heard—especially on the Trial Track—while keeping fairness at the core.

The Need for Change

Ontario’s civil system still struggles with:

• Too many experts and unclear distinctions between treating, participant, and litigation experts.

• Late and lengthy expert reports and scheduling friction that lengthens trials.

• Risks of partiality and “hired guns.”

• Expert evidence presented in ways that obscure rather than clarify. Even with stricter Rule 53.03 timelines, these issues continue to inflate costs, create delay, and burden trial management. The proposals aim to sharpen roles, right‑size expert use, and improve how evidence reaches the trier of fact.

Initial Reforms

The original Consultation Paper proposed:

• Defining expert roles (treating/participant/litigation) and codifying White Burgess admissibility criteria to make gatekeeping clearer and more accessible.

• Expanding joint experts to reduce duplication and tackle bias.

• Strengthening expert acknowledgements of duty to the Court.

• Standardising expert report format.

• Requiring pre‑trial expert conferencing (“hot‑tubbing”) with a joint statement of agreements/disagreements to narrow issues.

• Re‑sequencing trials: all fact witnesses first, followed by then issue‑by‑issue expert testimony, so opinions are anchored in an established factual record.

Consultation Feedback

Stakeholders broadly supported clearer role definitions and codifying admissibility, noting it would help both the bar and self‑represented litigants. However, there was strong resistance to:

• Compelled joint experts across the board, due to fairness, delay, and the risk of “shadow experts.”

• Mandatory expert conferencing in all matters, over concerns about cost, control, and dynamics between experts.

• Fixed re‑sequencing in every case, with some preferring trial‑judge discretion.

The Revised Proposals

The Working Group has refined the package while keeping the core benefits.

• Definitions and admissibility codified:

  • Adopt Westerhof-style definitions for “litigation expert,” “participant expert,” and “non‑party expert.”

  • Codify White Burgess admissibility criteria: relevant, material, necessary, not barred by exclusion, scientifically reliable (when novel/contested), and net benefit outweighs harm.

• Joint experts, narrowed and focused:

  • Presumptive joint experts only for defined “financial issues”:

    • Past/future economic loss (personal injury).

    • Cost of care (personal injury).

    • Real estate/property valuations of developed land.

  • For all other issues, parties must consider a joint expert; disputes addressed at a Directions Conference or One‑Year Scheduling Conference using listed factors (proportionality, complexity, existing retainer sunk costs, fairness, methodology disagreements, ability to pay).

• Stronger expert duties and real consequences:

  • Replace Form 53 with a sworn attestation of duty, attaching CV and report.

  • Extend duty to include impartial conduct at expert conferences and clear identification of agreed/disputed points.

  • “Two‑strikes‑you’re‑out” rule: after two findings of duty breach (with appeal rights), an expert is barred from future Superior Court proceedings. A central registry is recommended to track decisions.costs, fairness, methodology disagreements, ability to pay).

• Standardizsed reports and earlier timelines:

  • Mandatory report structure: qualifications/scope, assumptions with sources, specific questions, analysis/opinions, and appendices listing documents, authorities, and relationships that may affect independence.

  • Trial Track default timing (subject to court order/consent):

    • Plaintiff expert reports: 180 days before the earlier of the TMC or court‑ordered mediation.

    • Responding reports: 60 days before that same marker.

    • Reply: 30 days before that marker.

  • Trial dates will not ordinarily be adjourned for late expert reports.

• Expert conferencing, proportionate by track:

  • Presumptive conferencing only in Trial Track cases, with court discretion to expand/dispense.

  • Experts meet without parties/counsel (agenda set by counsel) and produce a joint report of agreements, disagreements, and reasons. Joint report is admissible. In non‑jury trials, expert testimony focuses on disputed issues.

• Re‑sequencing for clarity:

  • Presumptively, fact evidence for all parties comes first, then experts on an issue‑by‑issue basis.

  • Litigation expert reports are presumptively taken as read for examination‑in‑chief in non‑jury trials; testimony concentrates on areas of disagreement. Trial judges retain discretion to order otherwise.

• A practical add‑on:

  • Consider a court‑approved tool to generate standardizsed financial calculations (income loss, future care cost, life expectancy), akin to DivorceMate in family matters, to reduce reliance on expert evidence where appropriate.

What this means for your practice: expect earlier expert engagement, clearer role delineation, tighter scheduling discipline, and stronger incentives to narrow expert disagreements before trial. Start stress‑testing your expert panels, templates, and timelines now to stay ahead of the curve.