Inventory of Reforms

Federal Court Rules – Expert Witnesses

Year:
2008

Description:
Proposed amendments to the existing Federal Court rules and practices to ensure expert evidence is adduced in the most efficient, least costly and fairest manner.

Status:
Proposed

Jurisdiction:
Federal

Court:
Federal Court of Canada
Federal Court of Appeal

Timeline:
May 2008: Discussion Paper circulated by the Rules Committee
March 2009: Update on the status of the proposed amendments released

Publications:
CBA National Aboriginal Law Section
CBA National Maritime Law Section
Rules Committee of the Federal Court of Appeal and of the Federal Court
Rules Amending the Federal Court

Development:
On March 7, 2008, a committee established by the Federal Court, presented a report on expert witnesses to the Federal Courts Rules Committee which requested a further study of the issues raised. The Discussion Paper was circulated in May 2008 seeking the input of the profession and parties on ten specific issues

The subcommittee met on October 31, 2008 and November 28, 2008 to discuss the comments received and to re-evaluate the proposed amendments. The Federal Courts Rules Committee approved the amendments in principle and drafting instructions were prepared and sent to the legislative drafting section of the Department of Justice in January 2009. While the drafting instructions were not available to the public, the subcommittee did provide an update on the progress of the draft rules regarding expert witnesses in March 2009.

The proposed amendments were pre-published in Canada Gazette Part I on October 17, 2009. Any comments received on the content of those amendments will be considered prior to finalization of the rules.

Purpose:
A number of jurisdictions, including the Federal Court, have identified potential concerns with respect to the current approach to expert testimony before the Courts, in particular with respect to the independence of experts. The misapprehension of the role of expert witnesses in the trial process can result in experts advocating on behalf of a party. Such an approach diminishes the reliability and usefulness of the expert’s evidence to the Court.

Another issue of concern that was considered is the impact of expert evidence on the length of trials and the corresponding increase in the cost of litigation to the parties. This increase in cost raises concerns about the accessibility of the court system to litigants who have limited financial resources.

The proposed Rules streamline the qualification of experts and provide a code of conduct clarifying the duties and responsibilities of the expert witness in relation to the Courts. The proposed amendments also clarify the status of treating medical professionals and make the rules governing expert witnesses applicable to applications where appropriate. Finally, the proposed amendments provide greater flexibility to the parties, and to the Court, thereby enhancing access to justice and ensuring that the principle of proportionality is respected.

Description of Reforms:
After studying provincial and international approaches regarding the concerns raised by the use of expert witnesses, the Rules Committee has developed a number of amendments to give judges the tools they require to ensure that expert evidence is adduced in the most efficient, least costly and fairest manner.

The proposed amendments include rules governing the presentation of concurrent expert evidence (“hot-tubbing”) and expert conferences, the appointment of joint expert witnesses, and processes to streamline the qualification of experts, and provide for a code of conduct clarifying the duties and responsibilities of the expert witness in relation to the Courts.

The following provides an overview of the areas in which amendments are proposed.

(1) Recognizing the duty of expert witnesses
To ensure that expert witnesses understand their independent advisory role to the Court, it is proposed to include a Code of Conduct as a Schedule to the Federal Courts Rules.

Proposed new rule 52.2, applicable to both applications and actions, requires counsel to provide an expert witness with a copy of the Code of Conduct and to file a certificate signed by the expert acknowledging that the expert agrees to be bound by the Code of Conduct.

(2) Streamlining the process of qualifying expert witnesses
To assist in streamlining the qualification process and to identify situations where there are disputes as to whether a witness is qualified to testify as an expert, it is proposed that rule 52.2 require that the expert witness’s proposed area of expertise be identified in the report, and that a copy of the expert’s curriculum vitae accompany the report.

Requiring parties to challenge the qualifications of experts at an earlier point in the proceeding will further streamline the qualification process. This goal is to be achieved by requiring parties, other than the requisitioning party, to include any objections they may have to the requisitioning party’s proposed experts in their responding pre-trial conference memoranda. The requisitioning party will be required to make any objections it may have to the responding party’s proposed experts at the pre-trial conference. This is reflected in the amendments to paragraph 263(c).

(3) Requiring expert witnesses to confer in advance of the trial
The proposed amendments give the Court the discretion to require that experts confer amongst themselves. Discussions in an expert conference and documents prepared for such a conference are confidential and are not to be disclosed to the Court. Counsel will be present as of right, except where both parties consent to have the experts meet in their absence.

(4) Single joint experts
The proposed addition to rule 52.1 would allow parties to nominate a single joint expert. Such a nomination could only be made with the consent of all parties.

(5) Application of the rules governing expert witnesses to actions and applications
Expert witnesses regularly provide evidence to the Federal Court in both actions and applications. A number of the rules governing expert witnesses are currently found in Part 4, which is limited to actions. The proposed Rules move some of the provisions governing expert evidence to Part 3, “Rules applicable to all proceedings.”

(6) Status of treating physicians
The Federal Courts Rules Committee is proposing to amend the Rules to exclude treating medical professionals from the application of the rules governing expert evidence.

(7) The need for cross-examination
On occasion, parties agree that there is little to be gained from requiring an expert to testify. The proposed amendments to rule 280 would ensure that the Court has an overriding discretion to order an expert witness to testify before the Court where the judge deems it necessary. This discretion would be exercisable even where both parties have consented to the evidence being read into the record or otherwise introduced.

(8) Concurrent expert evidence “hot-tubbing”
Proposed rules 282.1 and 282.2 would allow the Court to require that some or all of the experts testify as a panel. Experts will only be allowed to pose questions to each other with leave of the Court to ensure the orderly presentation of evidence. The rules governing cross-examination and re-examination will continue to apply to experts testifying concurrently.

(9) Limiting the number of experts
Section 7 of the Canada Evidence Act limits the number of expert witnesses that may be called by a party in a proceeding to five absent leave of the Court. Proposed rule 52.4 recognizes this limit and enumerates some of the factors that are relevant to the Court’s exercise of its discretion to allow a party to call more than five expert witnesses.

(10) Cost consequences
The proposed amendments also include an addition to subsection 400(3) which will provide cost consequences for the unnecessary tendering of expert evidence at trial.

Revision History:
This summary was last reviewed in Aug 20, 2013