Changes to the Rules of Civil Procedure now in effect

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Amendments to Ontario’s Rules of Civil Procedure came into force on March 31, 2022, stressing the importance of retaining experts early on in civil proceedings to ensure the timely preparation of expert reports.

Ontario Regulation 18/22 amends the Rules of Civil Procedure and contains some significant changes to pre-trial conferences and expert reports to move cases forward and ensure parties are ready for trial at an early stage.

Law Times reports these changes require parties to schedule pre-trial conferences “no more than 120 days and no fewer than 30 days before the date the trial is scheduled to begin or the first day of the sitting during which the trial is expected to be held,” unless the court orders otherwise.

With respect to the timing of expert reports, parties must serve and file them up to 90 days before pre-trial. In addition, parties must deliver a Certificate of Readiness no later than 30 days before the pre-trial conference, indicating whether they intend to call any expert evidence at trial. If so, parties must communicate whether the expert reports were served on the other parties within the 90-day time limit and, if not, the reason.

Because of these stricter deadlines for expert reports, parties should retain experts and secure assessment dates as early as possible to ensure any reports are prepared within the required timeframe. That said, the time to serve an expert report may be extended with the parties’ written consent in cases where that lateness does not affect the scheduled trial dates.

As McLeish Orlando LLP partner Joseph Cescon tells Law Times, it has become “a bit of a convention” to allow expert reports to be admitted, even when they were not delivered in compliance with the previous Rules.

Cescon “speculates this is an issue the revamped Rules are looking to deal with by stressing that pre-trial is an important stage in the litigation and needs to be approached on the basis that everybody has everything they intend to rely on at the trial in order to be effective,” the article states.

These rule changes give trial judges greater discretion to refuse to admit evidence in cases of non-compliance with the rules, including late-served expert reports. The amendments also state that a judge may order costs if the pre-trial conference is unproductive for reasons relating to a party’s conduct.

When reading these key changes, parties are expected to prepare for trial expeditiously, and lawyers should be ready to provide a reasonable explanation for any delay. When coupled with recent efforts to modernize the justice system to deal with pandemic delays and closures, the province is trying to tackle court backlogs.

As members of the bar are fully aware, the pandemic accentuated the challenges the justice system was already facing. Thoughtful attempts to deal with the growing backlog of trials and ensure fair, timely and effective access to justice for personal injury victims are welcome. We will see how these amendments play out over the coming months.

Larry Herscu is President of The Easy Legal Group of Companies, a specialty lender focused on providing credit solutions to the legal sector, including its clients and service providers.

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