5.31: Use of transcript and answers to written questions
5.34: Service of expert’s report
5.35: Sequence of exchange of experts’ reports
5.37: Questioning experts before trial
6.14: Appeal from master’s judgment or order
7.3: Summary Judgment (Application and decision)

Case Summary

This is an Appeal of the Master’s Decision to summarily dismiss a medical malpractice claim pursuant to Rule 7.3.

The Plaintiffs sought to file new evidence on appeal. The Court, relying on Rule 6.14(3), noted that the rule gives the Court broad authority to admit new evidence on appeal from a Master. It must, however, meet the “very lax test” for relevance and materiality.

 However, the Plaintiffs proposed “evidence” was only appended to their submissions and none of the proposed documents were exhibits in an Affidavit. In recognizing that the Plaintiffs were self-represented, the Court noted that the Rules of Court apply to all litigants; inconsequential errors can be overlooked, but substantive law, including the rules of evidence, must be observed. The Court did rule, however, that the Questioning transcripts submitted by the Plaintiffs were admissible as read-ins under Rule 5.31.

In considering expert reports, the Court noted that the Plaintiffs failed to file any formal expert reports pursuant to a prior procedural order in accordance with Rule 5.35, which requires that expert reports be in Form 25 and contain the information required by the form. The Court noted that Rule 5.37 provides that parties may agree to, or a party can apply to the Court to permit, Questioning an expert on their report. As such, expert evidence must be in a form that permits cross-examination of the expert. 

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