Red coats, black robes, and guerrilla tactics
– no more
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Warren WhiteKnight weighs in on amendments to the Rules: Pretrials and expert reports
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WHEN THE British lined up in their smart red coats in Lexington and Concord in 1775, they weren’t expecting the guerrilla tactics employed by the American rebels: hiding behind fences, in trees, disappearing into swamps, only to return again with weapons reloaded. No. What they were expecting was that the Americans would follow the rules and line up and get shot and send back volleys of their own.
Bergeron Clifford LLP is a leading regional personal injury law firm in Eastern Ontario. Ted Bergeron and Chris Clifford co-founded the injury law firm in 1999. Today, they are a team of seasoned trial lawyers with a proven track record. Many cases settle out of court, but some cases need to be taken to trial. Bergeron | Clifford prepares every case for trial so that their clients have the best options—in court, and out of court.
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Changes to the Rules
Ontario Regulation 18/22 came into force March 31 and amends
Section 48
“Timelines and the consequences of non-compliance are being tightened, and consequently, the cost of running files in expert-driven areas of law is going to rise. This is all to the good and should lead to more conscientious shepherding of cases, and more efficient and fruitful pretrials”
Warren WhiteKnight is a Partner at Bergeron Clifford LLP and practices solely plaintiff-side personal injury and medical malpractice. He is based in the firm’s Kingston office but travels throughout Eastern Ontario as his clients’ needs require. Warren grew up in Vermont and settled in Canada in 2007. Warren and his wife and four children live on an 81-acre farm and keep horses and goats, raise chickens and pigs, make maple syrup, and generally get busy and muddy. Warren understands that when someone is injured the impact runs more than skin deep – the entire family is affected, and people lose their ability to work and play in the way they did before. Warren is a Queen’s Law graduate, where he achieved top 10 percent standing all three years, and received numerous course prizes and scholarships. Warren is the immediate past president of the Frontenac Law Association, and often teaches as an adjunct sessional professor at Queen’s Law.
Litigation in Ontario is not like that at all, because our robes are black. Wait – that’s not right; something else is different. Litigation in Ontario is different because, unlike the British in 1775, we have no expectation that our opponents will follow the rules with respect to service of expert reports. Unfortunately, the opposite is all too common.
Not any longer. The Rules have changed, timelines and the consequences of non-compliance are being tightened, and consequently, the cost of running files in expert-driven areas of law is going to rise. This is all to the good and should lead to more conscientious shepherding of cases, and more efficient and fruitful pretrials.
Ontario Regulation 18/22 passed, and as of March 31, 2022 the amendments to sections 48, 50, 53, and 76 of the Rules of Civil Procedure came into force. The amendments are extensive and likely to have four broad thematic effects.
You must have your expert reports before the pretrial
The rule has always been that expert reports must be served 90 days before a pretrial (Rule 53.08). Until these amendments, however, neither you nor the court knew whether a party had any intention of following this rule until you were at the pretrial and they revealed their plans. No longer. The Rules have been amended to require the following:
Certificate of Readiness to be Filed (Actions)
50.03.1 (1) At least 30 days before a pre-trial conference in an action, each party shall deliver a certificate of readiness (Form 50A) indicating whether the party intends to call any expert evidence at trial, and, if so, for each expert … [whether the report was served in accordance with the rules, and if not] the reason why.
“The reason why, Your Honour? I hid in the swamp because I was being shot at, and reloading this musket takes 15 minutes. Also, I wasn’t sure I wanted to shoot that chap Nigel because he was far away and I might have missed, and these slugs are expensive and I have so few, so I was keeping my powder dry. Reginald? Who is he? Oh, he’s a Rule 53 expert marksman. You’ll meet him eventually. I told Reginald to hide inside that hollow log with his musket. But I really was going to tell you about Reginald right before or maybe even during the battle, Your Honour, I swear.”
One of the most important amendments is to 53.08(1), which previously stated that “leave shall be granted” to admit a late-served expert report, unless the opposing party could show prejudice or undue delay. This language has been downgraded from “shall” to “may” and has reversed the onus such that it is now the non-compliant party who must give a reasonable explanation for the non-compliance (and I’m guessing that hiding in a log won’t suffice). This is a positive development, as the previous “shall” and onus on the opposing party made these late reports very hard to keep out, and a lot of unhelpful case law developed in this vein.
The old practice of waiting for a pretrial to obtain your last few trial reports (future care cost, precise quantification of certain losses, etc.), or the defence tactic of waiting for a pretrial conference to tell the court that the reason they can’t settle is they don’t have the defence medical report yet, isn’t going to fly. The fact that parties cannot wait to obtain expert reports any longer means that costs are going to rise. Concomitantly I predict an increase in pre-pretrial negotiations, as well as pre-pretrial mediations in regions that don’t have mandatory mediation.
Civil action up to trial (two days)
The tenor of pretrials will change
Undoubtedly the most impactful amendment is that of 50.02(2.1), which states that “a pre-trial conference shall be scheduled for a date that is not more than 120 days and not less than 30 days before the later of the … first day fixed for the trial [or the sitting].”
In the East Region, where I practice, the expectation has been that when you file the trial record your pretrial will happen within 12 to 18 months or so, and at the pretrial, your trial will then be scheduled within a further 12 to 18 months or so (Ottawa taking much longer). This has meant that parties (and more often the defendants) have shown up to a pretrial not having obtained any expert reports. Additionally, both parties typically have done zero trial prep, as the trial is so remote.
No longer. Now when parties show up to a pretrial, they must have all of their reports, and all parties will know the case they face. Scheduling the pretrial within 120 and 30 days of the trial date means the parties will also be in the midst of trial preparation or in a state of actual readiness when they attend the pretrial. These new timelines will change the tenor of pretrials so that they are more like what we call “exit pretrials” in the East Region, where we often get called for a pretrial on the eve of trial with a senior judge or even the RSJ or LAJ, and the judge then tries their best to settle the case, and if not, hammers out all the kinks to ensure it is ready for trial.
The amendments also take aim at these kinks in Rule 50.07(1)(a) wherein the presiding judge can establish a timetable if the proceeding is not settled at the pretrial conference, or, if necessary, adjourn the date for the trial or hearing. If our “new” pretrials are to be more like exit pretrials, I can say this is a positive development, as they are usually very productive affairs.
“My intuition is that judges will be somewhat forgiving and flexible in the coming six to 12 months as to how strictly to implement these amendments. However, there is no time like the present to review your files and your pending pretrial dates and ensure you are compliant”
The rules now have teeth for non-compliance
Speaking of productive affairs, what about unproductive affairs? What if the Red Coats agreed to a time and place for battle, and nobody showed up? All dressed up with nowhere to go. Rule 50.12(2) now provides: “If the judge or associate judge determines that a pre-trial conference … was unproductive for reasons relating to a party’s conduct, an order … may require that the costs be paid immediately.”
It is my guess that these teeth will rarely be necessary. Responsible counsel has always gotten their experts early and made their client available for medical exams by the opposing party. It will behoove counsel to continue these practices, but also to discuss the timing of expert reports with opposing counsel. In this vein, the amendments provide
that the parties may consent in writing to extend or abridge the time for service of experts’ reports, as long as the scheduled trial date is not affected.
Each region will custom-tailor the changes
Each region has different practices for filing the trial record, obtaining a pretrial date, and getting the matter scheduled for trial. However, the whole province now has the same Rule of between 120 to 30 days before trial for their pretrial.
Each region will implement this practice differently. As usual the real burden will fall to those talented people in the courthouse: “Rule 48.05(2) In placing an action on a trial list, the registrar shall take into account any applicable pre-trial conference scheduling requirements in rule 50.02.” My intuition is that judges will be somewhat forgiving and flexible in the coming six to 12 months as to how strictly to implement these amendments. However, there is no time like the present to review your files and your pending pretrial dates and ensure you are compliant.
In the end, even if you are standing proud and honourably in a field, you may still be called a Lobsterback – and if you’re hiding in the trees employing guerrilla tactics, likely something worse. The important thing to remember is that these Rules amendments are simply a codification of long-standing good practice, and hopefully will result in more efficient and fruitful pretrials, and better outcomes for our clients.
Average cost of civil litigation (Canadian Lawyer 2021 Legal Fees survey)
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Section 50
Section 53
Section 76
National:
$25,570
Ontario: $32,029
Civil action up to trial (five days)
National:
$38,194
Ontario: $71,324
Civil action up to trial (seven days)
National:
$92,118
Ontario:
$111,071
Civil action
appeal only
National:
$29,983
Ontario:
$27,963
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