Expert Reports

Prohaska v Howe, 2016 ONSC 48 (CanLII)

[24] During argument, I observed that this Rule appeared to contemplate a requirement to serve expert reports at least thirty (30) days before trial. I also directed the parties to the decision of Nolan J. in Tosti v. Society of the Madonna (2011 ONSC 339 (CanLII)). In that case, at paragraph 30, Nolan J. adopts an interpretation of Rule 18.02 that would require expert reports to be prepared in writing and served on the opposite party at least 30 days in advance of the trial.

[25] The rule is certainly open to that interpretation, and it is clear that the Rule envisions expert reports as a type of document that the Court will have to consider in applying Rule 18.02.

[26] However, the Appellant directed my attention to three other decisions. First, there is the decision in Steckley v. Haid ([2009] O.J. No. 2014 (Small Claims Crt.), Deputy Judge J.S. Winny) in which the Deputy Judge noted that there is no rule of the Small Claims Court requiring service of an expert report in advance of trial. The Deputy Judge goes on to note that short service of an expert report may require an adjournment. There is nothing in this decision about whether there were any issues of admissibility about the specific expert’s report.

[27] The decision in Sutherland Estate v. MacDonald ([1999] O.J. No. 785 (Small Claims Court, Deputy Judge Young)) goes further. At paragraph 13, the Deputy Judge states:

"The wisdom of the Courts of Justice Act is that it permits judges in this informal court of summary procedure to hear all such evidence without first canvassing by voir dire or otherwise, its necessity and reliability. In Small Claims Court, this exercise, while still required, may routinely be carried out after the evidence has been adduced and heard."

[29] First, Deputy Judges must have the authority to exercise a gatekeeping function to determine whether evidence should be admissible. If they did not have this power, then parties in small claims court actions would have the right to call opinion evidence, unlimited character evidence, similar fact evidence, and irrelevant evidence. Cases could go on forever if they were not controlled. The importance of the trial judge’s gatekeeper function has been discussed in many cases (see, for example, Tosti, supra at paragraphs 40 to 46). Adopting the Appellant’s interpretation would not give effect to the gatekeeper function and I accordingly reject it.

[30] Second, it is important to remember that expert evidence is opinion evidence. Unless it meets certain requirements for admissibility, expert evidence is prima facie inadmissible. As a result, it is up to the party seeking to tender the evidence to demonstrate that the trier of fact should consider it. Given that expert evidence can often be lengthy, complex and technical, conducting the analysis of whether the evidence should be admitted is most efficiently done at the outset.

[31] Third, an expert will often provide the Court with specialized information that is beyond the Court’s knowledge. Triers of fact must take care to ensure that they are not influenced by inadmissible opinions offered by third parties. As a result, the gatekeeping function should be exercised more vigilantly with expert evidence.

[32] For all of these reasons, I am of the view that a Small Claims Court Judge does have discretion to consider, and even exclude, expert evidence before the expert testifies. From this, it follows that Deputy Judges have discretion to determine how expert evidence will be placed before the Court.

[37] However, I am of the view that the Small Claims Court Rules expressly provide some guidance on the use of expert reports, and that this guidance is included in Rule 18.02. The Rule seems to suggest that an expert report must be served in advance of trial, and that the trial judge has the right to exclude the report. Indeed, the last words of Rule 18.01 are that the documents “shall be received into evidence unless the trial judge orders otherwise”.

[44] Rule 18.02 gives a Deputy Judge the ability to admit documents that do not comply with the requirements. This Rule would give the Deputy Judge the discretion to admit an expert report and hear testimony from an expert even if a report was not served properly. However, that discretion must be exercised reasonably.

[45] In this case, the approach adopted by Deputy Judge Barycky was reasonable. In my view, the approach urged upon me by the Appellant would have been fraught with risks. Permitting the Appellant to lead expert evidence in the absence of a report, and without giving the Respondent an opportunity to consider and respond to that expert testimony could very well have resulted in an error in law.

Hakoopian v Konrad, 2017 CanLII 9127 (ON SCSM)

[25] It is interesting to note that even where an expert report was ordered to be produced at a settlement conference, the Divisional Court in the case of Hervieux v. Huronia Optical, 2015 ONSC 1810 (CanLII) reversed the motions judge who dismissed the claim for failure to provide such report prior to trial on the basis that Rule 12.02 could not be used for summary judgment for such failure to produce.

[26] After quoting the above passage regarding summary judgment from Van de Vrande, the Divisional Court reasoned in paragraphs 19 and 20 of Hervieux as follows:

"19 There is nothing in the appellant’s Statement of Claim that could be considered inflammatory, a waste of time, or a nuisance. The pleadings are perfectly straightforward. The “waste of time” argument arises not in the pleadings, but in the failure to provide an expert report in accordance with the order and the extension at the Settlement Conferences.

"20 In my view, it was a denial of natural justice to have the appellant’s claim dismissed upon a Rule 12.02 motion. Mr. Hervieux was self-represented. Although he did not provide an expert report in accordance with the order at the Settlement Conference, he did not abandon his action…"

[27] Just as in Hervieux, it is my view that it would be a denial of natural justice to have the Plaintiff’s Claim in the case at bar dismissed at this stage on this Rule 12.02 motion. The plaintiff is self-represented and he has not abandoned his action. In fact, it has been set down for trial scheduled to be heard on February 22, 2017.

[28] For these reasons the motion is dismissed. The trial shall proceed as scheduled on February 22, 2017.

[29] At the hearing counsel for the defendant also raised the issue that the Plaintiff’s Claim should be dismissed pursuant to Rule 12.02 (1) (b) because the lack of an expert report may delay or make it difficult to have a fair trial.

[30] It is not necessary for me to address this issue at length as it was not raised in the defendant’s Notice of Motion or mentioned in counsel’s factum and consequently the plaintiff did not have notice of this issue, and since the plaintiff was not present at the hearing he did not have an opportunity to make submissions. However, I would still be reluctant to dismiss the Plaintiff’s Claim under paragraph (b) for the same reasons that I have set out above relating to paragraphs (a) and (c) of Rule 12.02 (1).