binder j

1.2: Purpose and intention of these rules
1.5: Rule contravention, non-compliance and irregularities
5.32: When information may be used
5.34: Service of expert’s report
5.35: Sequence of exchange of experts’ reports
5.36: Objection to expert’s report
5.37: Questioning experts before trial
5.38: Continuing obligation on expert
5.39: Use of expert’s report at trial without expert
5.40: Expert’s attendance at trial

Case Summary

The issue before the Court was whether it was improper for a Party to an Action to file an Expert’s Report with the Court without first obtaining the consent of the opposing Party.

Binder J. held that Rule 1.2 sets out the purposes of the Rules of Court, including the need to “identify the real issues in dispute, facilitate the quickest means of resolving a claim at the least expense, encourage the Parties to resolve the claim themselves as early in the process as practicable, and oblige the Parties to communicate honestly, openly and in a timely way”. One intention of the Foundational Rules is to encourage Parties “to refrain from filing applications or taking proceedings that do not further the purpose and intention of these rules” and “to use publically funded court resources effectively”.

Binder J. reviewed Rules 5.34 to 5.40, regarding the proper procedure for Experts’ Reports, and noted that, although the Rules contemplate service of Experts’ Reports as between the Parties, they do not address whether the Reports should be filed with the Court.

Applying the Foundational Rules, in conjunction with Rule 5.32, Binder J. determined that an Expert’s Report only becomes part of the Court record if both Parties consent to its addition or upon Court Order. In reaching this Decision, Binder J. held that the new Rules reflect a policy of efficiency and economy. Restricting filing to essentials promotes those goals. Unnecessary filing wastes Court resources in terms of clerks’ time and storage space. Counsel should communicate honestly, openly and in a timely way amongst themselves. The Experts’ reports should only become part of the Court record by consent or with the approval of the Court.

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