Anticipated Changes to Rules Effective March 31, 2022 Regarding Pre-trials and Expert Reports

Published on: March 2022 | What's Trending

judge court gavel with judge faded in background

Ontario Regulation 18/22, which will come into force on March 31, 2022, sets out a number of modifications to the Rules of Civil Procedure (“Rules”).

The changes, which concern pre-trial conferences and how late-served expert reports are dealt with, will apply to all actions currently in place and forthcoming.

The objective of the upcoming changes is to increase productiveness of pre-trial conferences, as well as decrease service of late expert reports.

Certificate of Readiness to be filed

Pursuant to the amendments, each party will be required to deliver a certificate of readiness (Form 50A), at least 30 days before a pre-trial conference (subrule 50.03.1(1)).

On the form, a party should indicate whether it intends to call expert evidence at trial, and for each expert, whether the report of the expert has been served as required by the Rules. If not, the reason(s) why should be specified on the form.

Evidence Admissible only with Leave

Currently, many trial dates are being adjourned because expert reports are not being served on time.

Expert reports are to be served no later than 90 days prior to the pre-trial conference, while responding reports are to be delivered at least 60 days in advance (rule 53.03). Failure to have expert reports ready renders the pre-trial conference impractical and essentially delays the overburdened court system.

Subrule 53.08(1) as currently worded, places the onus on the responding party to demonstrate prejudice or undue delay should the late-served expert reports be admitted into the record.

Under the amendments to 53.08(1), the party seeking leave to admit late evidence will be required to demonstrate a reasonable explanation for failure to abide by the Rules.

The onus will shift to the party tendering the late evidence to demonstrate that granting leave will not cause prejudice to the responding party or cause undue delay. Furthermore, the trial judge will have broader discretion to refuse to admit late-served expert reports.

Extension of Time for Service of Expert Report

Presently, the time for service of an expert report may only be extended by a judge or associate judge at the pre-trial conference or by the court, on motion.

Amendments to subrule 53.03(4) will permit the time to be extended with written consent of the parties, provided that the extension does not affect the scheduled trial date.

Pre-Trial Conference

Within 180 days after an action is set down for trial, the parties are required to schedule a date and time for a pre-trial conference. However, the Rules do not provide a timeline for when the pre-trial conference should take place.

Amendments to subrule 50.02 will require that the pre-trial conference be held 30-120 days prior to trial. This will apply to all actions set down for trial on or after March 31, 2022.

Given the forthcoming trial date, parties should have all of their evidence ready by the pre-trial, which will make the process more efficient.

A presiding judge or associate judge will have the discretion to adjourn the date for trial following the pre-trial conference, subject to the direction of the regional senior judge.

Currently, an order for costs may be made at the pre-trial conference, but the Rules do not specify under what circumstances. This power is clarified in the rule amendments. Pursuant to the new subrule 50.12(2), the presiding judge or associate judge may order costs against a party, payable forthwith, if the pre-trial was unproductive for reasons relating to that party’s conduct.

Simplified Procedure

Amendments to the Rules governing Simplified Procedure will provide the pre-trial conference judge or associate judge with broader discretion to make an order as he or she sees fit (subrule 76.10(5)).

Takeaway

Consideration should be given by Counsel to the timeline for serving expert reports pursuant to the Rules and whether the parties are prepared for their upcoming pre-trial conference.

The amendments will encourage the parties to be prepared and to comply with the deadlines. This will serve to increase the productiveness and effectiveness of pre-trial conferences.

Summary of Key Amendments

  • Parties must deliver a certificate of readiness (Form 50A) no later than 30 days prior to the pre-trial conference.
  • Trial judges are given broader power to refuse late-served expert reports.
  • The party seeking to admit late-served expert reports is required to provide a reasonable explanation for its failure to comply with the
  • The time to serve an expert report may be extended with written consent of the parties, provided that the extension does not impact the trial date.
  • Pre-trial conferences must be scheduled for a date between 30-120 days before trial.
  • A presiding judge or associate judge has the discretion to adjourn the date for trial following the pre-trial conference, subject to the direction of the regional senior judge.
  • Costs may be ordered if the pre-trial is unproductive for reasons relating to a party’s conduct.