Vol. 143, No. 42 — October 17, 2009

Rules Amending the Federal Courts Rules (Expert Witnesses)

Statutory authority

Federal Courts Act

Sponsoring agencies

Federal Court of Appeal and Federal Court

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Rules.)

Issue and objectives

The purpose of the Rules Amending the Federal Courts Rules (Expert Witnesses) is to implement new rules and amend existing rules governing expert witnesses and their evidence in the Federal Courts and make any consequential amendments.

The role of the expert witness is to assist the court through the provision of an independent and objective opinion about matters coming within the expertise of the witness. This duty is paramount. It overrides the obligations of the witness to the party on whose behalf he or she is called to testify. The evidence of an expert witness should be the independent product of the expert and should not be unduly influenced.

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 and rationale

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.

Technical description

To meet the above-mentioned objectives of the Rules Amending the Federal Courts Rules (“the Rules”), the Rules Committee proposes amendments to the following rules:

The Rules are amended by adding the following rules regarding expert witnesses after rule 52.

Subsection 52.1(1) is added to clarify that a party to a proceeding may name an expert witness whether or not an assessor has been called on.

Subsection 52.1(2) is added to specify that two or more of the parties may jointly name an expert witness.

Rule 52.2 is added to stipulate the content of an affidavit or statement of an expert witness. It must set out in full the proposed evidence of the expert, set out the expert’s qualifications and the areas in respect of which it is proposed that he or she be qualified as an expert, be accompanied by a certificate in Form 52.2 signed by the expert acknowledging that the expert has read the Code of Conduct for Expert Witnesses set out in the schedule and agrees to be bound by it, and in the case of a statement, be in writing, signed by the expert and accompanied by a solicitor’s certificate.

Rule 52.3 is added to clarify an exception for certain medical professionals. The rules governing expert witnesses do not apply to a medical professional who has given or is giving medical treatment or advice to a person if the evidence in relation to the person is limited to one or more of the following subjects: the results of an examination, a description of the treatment or advice, the reason the treatment or advice was or is being given, and the results of the treatment or advice.

Subsection 52.4(1) requires a litigant to seek leave of the Court where he or she intends to call more than five expert witnesses.

Subsection 52.4(2) sets out the factors that will be considered in deciding whether to grant leave, including the nature of the litigation, its public significance and any need to clarify the law, the number, complexity or technical nature of the issues in dispute, and the likely expense involved in calling the expert witnesses in relation to the amount in dispute in the proceeding.

Subsection 232(2) of the French version of the Rules is amended by replacing “nouvel interrogatoire” with “réinterrogatoire.”

Subsection 258(5) of the Rules is repealed.

Rule 262 of the Rules is renumbered as subsection 262(1) and is amended by the addition of subsection 262(2) which requires a party to include any known objection to the requisitioning party’s proposed expert witness in the pre-trial conference memorandum. The party must also set out the basis of the objection.

Paragraph 263(c) of the Rules is replaced by the addition of the following:

(c) any issues arising from any affidavits or statements of expert witnesses, including

(i) any objection to an opposing party’s proposed expert witness and the basis of the objection,

(ii) any benefit to the litigation in ordering the experts to confer with one another in advance of trial in order to narrow the issues and identify the points on which their views differ, and

(iii) the need for any additional or rebuttal expert witness evidence;

The Rules are further amended by adding the following after rule 279.

Subsection 279.1(1) establishes expert conferences. If the parties agree or if it is in the interests of justice, the Court may order that an expert witness conference take place in advance of trial in order to narrow the issues and identify the points on which their views differ.

Subsection 279.1(2) speaks to the presence of parties and counsel at expert conferences, and notes that subsection (1) does not preclude the parties and their counsel from attending an expert conference but the conference may take place in their absence if the parties agree.

Subsection 279.1(3) specifies that the Court may order that an expert conference take place in the presence of a judge or prothonotary.

Subsection 279.1(4) indicates that a joint statement prepared by some or all of the expert witnesses following an expert conference is admissible at trial. This rule also highlights that discussions in an expert conference and documents prepared for the purposes of a conference are confidential and shall not be disclosed to the Court.

Subsection 280(1) pertaining to the tendering of expert’s evidence at trial is replaced and the new rule indicates that unless the Court orders otherwise, evidence in chief of an expert witness may be tendered at trial by

(a) the witness reading into evidence all or part of an affidavit or statement referred to in paragraph 279(b); and

(b) the witness explaining any of the content of an affidavit or statement that has been read into evidence.

Subsection 280(1.1) is added to indicate that despite subsection (1), an expert witness may tender other evidence in chief with leave of the Court.

The Rules are further amended by the insertion of the following rules after rule 282.

New rule 282.1 creates a mechanism which permits concurrent evidence to be given by expert witnesses. It provides that the Court may require that some or all of the expert witnesses testify as a panel after the completion of the testimony of the non-expert witnesses of each party or at any other time that the Court may determine.

Subsection 282.2(1) pertains to questions to the expert panel by the Court. The Court may identify matters that are within the area of expertise of the panel members and pose questions to the panel members about those matters.

Subsection 282.2(2) relates to the testimony of expert panel members. Expert witnesses shall give their views and may be directed to comment on the views of other panel members and to make concluding statements. With leave of the Court, they may pose questions to other panel members.

Subsection 282.2(3) relates to the examination of expert panel members. The rules governing cross-examination and re-examination of witnesses at trial apply on the completion of the testimony of the panel members.

Paragraph 299(1.1)(b) of the Rules is amended to provide that an affidavit or statement of the expert witness prepared in accordance with rule 52.2 must be served on all other parties at least 60 days before the commencement of the trial.

Subsection 299(1.2) of the Rules is replaced and the new rule sets out the admissibility of rebuttal evidence. Except with leave of the Court, no expert witness’ evidence to rebut evidence in an affidavit or statement served under paragraph (1.1)(b) is admissible unless an affidavit or statement of the expert witness prepared in accordance with rule 52.2 has been served on all other parties at least 30 days before the commencement of the trial.

Subsection 400(3) of the Rules is amended by striking out “and” at the end of paragraph (n) and by adding the following after that paragraph:

(n.1) whether the expense required to have an expert witness give evidence was justified given

(i) the nature of the litigation, its public significance and any need to clarify the law,

(ii) the number, complexity or technical nature of the issues in dispute, or

(iii) the amount in dispute in the proceedings; and

The Rules are amended by the addition of a new form (Form 52.2) following Form 46.

Form 52.2 pertains to rule 52.2 and is titled “CERTIFICATE CONCERNING CODE OF CONDUCT FOR EXPERT WITNESSES.” It requires expert witnesses to certify that they have read and agree to be bound by the Code of Conduct for Expert Witnesses set out in the schedule to the Federal Courts Rules.

Finally, a Schedule setting out a Code of Conduct for Expert Witnesses is added as a Schedule to the Rules.

These Rules come into force on the day on which they are registered.

Implementation and enforcement

The amended rules will be incorporated into the Federal Courts Rules and will be implemented and enforced in the same manner as the other rules.

Consultation

A Discussion Paper was circulated by the Rules Committee in May 2008 with respect to possible amendments to the Federal Courts Rules relating to expert witnesses for the purpose of receiving comments from the legal community. Comments were received from judges of the Federal Court of Appeal and the Federal Court, as well as by members of the various provincial bars across the country and internationally. Those comments were considered and discussed by a subcommittee of the Rules Committee. A final report was prepared by the subcommittee and tabled at the plenary committee meeting of November 28, 2008. An update was published on the Federal Court of Appeal and Federal Court Web sites in March 2009.

The proposed amendments to the rules governing expert witnesses were prepared and further discussions ensued within the Rules subcommittee, as well as at the plenary Rules Committee, which is composed of judges from the Federal Court of Appeal and the Federal Court, practising lawyers in either the Government or in private firms, and academics from various regions of the country. The proposed amendments have also been discussed at several meetings between the Bench and the Bar.

For further information on this topic, please consult the Web sites of the Federal Court of Appeal at www.fca-caf.gc.ca and the Federal Court at www.fct-cf.gc.ca.

Contact

Chantelle Bowers
Secretary of the Rules Committee of the Federal Court of Appeal and the Federal Court
Ottawa, Ontario
K1A 0H9
Telephone: 613-995-5063
Fax: 613-941-9454
Email: Chantelle.Bowers@fca-caf.gc.ca

PROPOSED REGULATORY TEXT

Notice is hereby given, pursuant to paragraph 46(4)(a) (see footnote a) of the Federal Courts Act (see footnote b), and subject to the approval of the Governor in Council, that the rules committee of the Federal Court of Appeal and the Federal Court, pursuant to section 46 (see footnote c) of that Act, proposes to make the annexed Rules Amending the Federal Courts Rules (Expert Witnesses).

Interested persons may make representations with respect to the proposed Rules within 60 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Chantelle Bowers, Secretary to the Rules Committee, Federal Court of Appeal, 90 Sparks Street, 10th Floor, Ottawa, Ontario K1A 0H9 (tel.: 613-995-5063; fax: 613-941-9454; e-mail: chantelle.bowers@fca-caf.gc.ca).

Ottawa, October 5, 2009

RAYMOND P. GUENETTE
Chief Administrator
Courts Administration Service

RULES AMENDING THE FEDERAL COURTS RULES (EXPERT WITNESSES)

AMENDMENTS

1. Subsection 52(6) of the Federal Courts Rules (see footnote 1) is repealed.

2. The Rules are amended by adding the following after section 52:

Expert Witnesses

Right to call expert

52.1 (1) A party to a proceeding may name an expert witness whether or not an assessor has been called on under rule 52.

Expert named jointly

(2) Two or more of the parties may jointly name an expert witness.

Expert’s affidavit or statement

52.2 An affidavit or statement of an expert witness shall

(a) set out in full the proposed evidence of the expert;

(b) set out the expert’s qualifications and the areas in respect of which it is proposed that he or she be qualified as an expert;

(c) be accompanied by a certificate in Form 52.2 signed by the expert acknowledging that the expert has read the Code of Conduct for Expert Witnesses set out in the schedule and agrees to be bound by it; and

(d) in the case of a statement, be in writing, signed by the expert and accompanied by a solicitor’s certificate.

Exception for certain medical professionals

52.3 The rules governing expert witnesses do not apply to a medical professional who has given or is giving medical treatment or advice to a person if the evidence in relation to the person is limited to one or more of the following subjects:

(a) the results of an examination;

(b) a description of the treatment or advice;

(c) the reason the treatment or advice was or is being given; and

(d) the results of the treatment or advice.

Limit on number of experts

52.4 (1) A party intending to call more than five expert witnesses in a proceeding shall seek leave of the Court.

Leave considerations

(2) In deciding whether to grant leave, the Court shall consider all relevant matters, including

(a) the nature of the litigation, its public significance and any need to clarify the law;

(b) the number, complexity or technical nature of the issues in dispute; and

(c) the likely expense involved in calling the expert witnesses in relation to the amount in dispute in the proceeding.

3. Subsection 232(2) of the French version of the Rules is amended by replacing “nouvel interrogatoire” with “réinterrogatoire”.

4. Subsection 258(5) of the Rules is repealed.

5. Rule 262 of the Rules is renumbered as subsection 262(1) and is amended by adding the following:

Objection to expert

(2) The pre-trial conference memorandum shall include any known objection to the requisitioning party’s proposed expert witness and the basis of the objection.

6. Paragraph 263(c) of the Rules is replaced by the following:

(c) any issues arising from any affidavits or statements of expert witnesses, including

(i) any objection to an opposing party’s proposed expert witness and the basis of the objection,

(ii) any benefit to the litigation in ordering the experts to confer with one another in advance of trial in order to narrow the issues and identify the points on which their views differ, and

(iii) the need for any additional or rebuttal expert witness evidence;

7. Paragraph 279(b) of the Rules is replaced by the following:

(b) an affidavit or statement of the expert witness prepared in accordance with rule 52.2 has been served in accordance with subsection 258(1), rule 262 or an order made under rule 265; and

8. The Rules are amended by adding the following after rule 279:

Expert conference

279.1 (1) The Court may order expert witnesses to confer with one another in advance of trial in order to narrow the issues and identify the points on which their views differ.

Presence of parties and counsel

(2) Subsection (1) does not preclude the parties and their counsel from attending an expert conference but the conference may take place in their absence if the parties agree.

Presence of judge or prothonotary

(3) The Court may order that an expert conference take place in the presence of a judge or prothonotary.

Joint statement

(4) A joint statement prepared by some or all of the expert witnesses following an expert conference is admissible at trial. Discussions in an expert conference and documents prepared for the purposes of a conference are confidential and shall not be disclosed to the Court.

9. Subsection 280(1) of the Rules is replaced by the following:

Tendering of expert’s evidence at trial

280. (1) Unless the Court orders otherwise, evidence in chief of an expert witness may be tendered at trial by

(a) the witness reading into evidence all or part of an affidavit or statement referred to in paragraph 279(b); and

(b) the witness explaining any of the content of an affidavit or statement that has been read into evidence.

Other evidence with leave

(1.1) Despite subsection (1), an expert witness may tender other evidence in chief with leave of the Court.

10. The Rules are amended by adding the following after rule 282:

Expert witness panel

282.1 The Court may require that some or all of the expert witnesses testify as a panel after the completion of the testimony of the non-expert witnesses of each party or at any other time that the Court may determine.

Questions to panel by Court

282.2 (1) The Court may identify matters that are within the area of expertise of the panel members and pose questions to the panel members about those matters.

Testimony of panel members

(2) Expert witnesses shall give their views and may be directed to comment on the views of other panel members and to make concluding statements. With leave of the Court, they may pose questions to other panel members.

Examination of panel members

(3) The rules governing cross-examination and re-examination of witnesses at trial apply on the completion of the testimony of the panel members.

11. (1) Paragraph 299(1.1)(b) of the Rules is replaced by the following:

(b) an affidavit or statement of the expert witness prepared in accordance with rule 52.2 has been served on all other parties at least 60 days before the commencement of the trial; and

(2) Subsection 299(1.2) of the Rules is replaced by the following:

Admissibility of rebuttal evidence

(1.2) Except with leave of the Court, no expert witness’s evidence to rebut evidence in an affidavit or statement served under paragraph (1.1)(b) is admissible unless an affidavit or statement of the expert witness prepared in accordance with rule 52.2 has been served on all other parties at least 30 days before the commencement of the trial.

12. Subsection 400(3) of the Rules is amended by striking out “and” at the end of paragraph (n) and by adding the following after that paragraph:

(n.1) whether the expense required to have an expert witness give evidence was justified given

(i) the nature of the litigation, its public significance and any need to clarify the law,

(ii) the number, complexity or technical nature of the issues in dispute, or

(iii) the amount in dispute in the proceeding; and

13. The Rules are amended by adding the following after Form 46:

FORM 52.2

Rule 52.2

CERTIFICATE CONCERNING CODE OF CONDUCT FOR EXPERT WITNESSES

(General Heading — Use Form 66)

CERTIFICATE CONCERNING CODE OF CONDUCT FOR EXPERT WITNESSES

I, (name), having been named as an expert witness by the (party), certify that I have read the Code of Conduct for Expert Witnesses set out in the schedule to the Federal Courts Rules and agree to be bound by it.

(Date)

_______________________
(Signature of expert witness)
(Name, address, telephone and
fax number of expert witness)

14. The Rules are amended by adding, after Tariff B, the schedule set out in the schedule to these Rules.

COMING INTO FORCE

15. These Rules come into force on the day on which they are registered.

SCHEDULE
(Section 13)

SCHEDULE
(Rule 52.2 )

CODE OF CONDUCT FOR EXPERT WITNESSES

GENERAL DUTY TO THE COURT

1. An expert witness named to provide a report for use as evidence, or to testify in a proceeding, has an overriding duty to assist the Court impartially on matters relevant to his or her area of expertise.

2. This duty overrides any duty to a party to the proceeding, including the person retaining the expert witness. An expert is to be independent and objective. An expert is not an advocate for a party.

EXPERTS’ REPORTS

3. An expert’s report submitted as an affidavit or statement referred to in rule 52.2 of the Federal Courts Rules should include

(a) a statement of the issues addressed in the report;

(b) a description of the qualifications of the expert on the issues addressed in the report;

(c) the expert’s current curriculum vitae attached to the report as a schedule;

(d) the facts and assumptions on which the opinions in the report are based (a letter of instructions, if any, may be attached to the report as a schedule);

(e) a summary of the opinions expressed;

(f) in the case of a report that is provided in response to another expert’s report, an indication of the points of agreement and of disagreement with the other expert’s opinions;

(g) the reasons for each opinion expressed;

(h) any literature or other materials specifically relied on in support of the opinions;

(i) a summary of the methodology used, including any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out, and whether a representative of any other party was present; and

(j) any caveats or qualifications necessary to render the report complete and accurate, including those relating to any insufficiency of data or research and an indication of any matters that fall outside the expert’s field of expertise.

4. An expert witness must report without delay to persons in receipt of the report any material changes affecting the expert’s qualifications or the opinions expressed or the data contained in the report.

EXPERT CONFERENCES

5. An expert witness who is ordered by the Court to confer with another expert witness

(a) must exercise independent, impartial and objective judgment on the issues addressed;

(b) must endeavour to clarify with the other expert witness the points on which they agree and the points that are genuinely in dispute on those issues; and

(c) must not act on any instruction or request to withhold or avoid agreement with the other expert witness.

[42-1-o]

Footnote a
S.C. 1990, c. 8, s. 14(4)

Footnote b
R.S., c. F-7; S.C. 2002, c. 8, s. 14

Footnote c
S.C. 2002, c. 8, s. 44

Footnote 1
SOR/98-106; SOR/2004-283

NOTICE:
The format of the electronic version of this issue of the Canada Gazette was modified in order to be compatible with extensible hypertext markup language (XHTML 1.0 Strict).