The Expert's Report

AuthorJohn Hollander
the expert’s report
chapter three
The Expert’s Report
What Must Go Into a Report
   with various aspects of the required
contents of a report from an expert. is section deals with
the specics.
e Ontario Rules of Civil Procedure (specically, rule
.) set these out with precision. So, too, do the British
Columbia Supreme Court Civil Rules (- and -) and
the Nova Scotia Civil Procedure Rules (.). e rules in
other provinces vary in their content, but not their intent.
For ease of reference, rules ., - and -, and .
are attached in the Appendix to this handbook.
Under the Ontario Rules, there are seven formal re-
quirements with respect to what goes into an expert’s re-
port. ese requirements are:
1.  ’ , ,    .
1 Ontario, Rules of Civil Procedure, RRO 1990, Reg 194, r 53.03
[rule 53.03].
2 British Columbia, Supreme Court Civil Rules, BC Reg 168/2009,
rr 11-2 and 11-6.
3 Nova Scotia, Civil Procedure Rules, r 55.04.
    
People testify, not organizations. e lawyer may have
retained the organization to provide the expertise, and
there is a practice among some organizations for the
partners to sign on behalf of the organization (account-
ants, for example). is is not permissible in the con-
text of the Rules. e individual(s) giving the opinion
must sign the report and provide the information. e
expert who signs may be part of an organization. In
such cases, it does not appear clear that the expert is
giving an opinion on behalf of the organization or,
perhaps, a team within it. Counsel must predict what
experts from within that team organization will have
to testify to support the opinion.
2.  , ,  
  .
is requirement begs the question, for what area?
People have many attributes and qualications. e
focus here is on the characteristics that are relevant to
the issue for which the opinion is given. e amount
of detail is up to the individual; however, there must
be sucient detail to inform both the opposition and
the court as to why this person claims to have expertise.
Note that the wording in the rule is dierent than the
common law “training, education, and experience.” It
is likely not intended as a substantive dierence. Typ-
ically, a curriculum vitae is attached. Occasionally, the
expert edits the curriculum vitae to accent the relevant
entries. What is to be avoided is the surprise qualica-
tion — whether a publication, a specic experience, or
some other unique characteristic, there should be full
disclosure of what makes the expert an expert.
the expert’s report
3.       -
  .
e easiest way to fulll this requirement is for the
letter of instructions to be attached to the report. It
can be problematic for the expert where the instruc-
tions have been given orally as there is then no written
proof of what the lawyer asked of the expert. For this
reason, the lawyer should ensure that there is a paper
trail. An alternative is for the expert to identify the
instructions in the report. It may be appropriate for
the lawyer to review a draft of the report to ensure that
the instructions are fairly recorded. e court and the
cross-examining counsel will rely on the instructions
as setting out the scope for the report. If the investiga-
tion, research, or opinion strays from the instructions,
that may be grounds for cross-examination. It also
may have impact on how the court assesses the weight
of that opinion.
4.        
    .
Opinions must relate to the issues. Typically, the law-
yer frames the issues as questions. For example, “Please
provide your opinion by answering the following ques-
tions . . . .” It is not necessary that each opinion ad-
dress all of the issues. e report must, however, relate
each opinion to an issue that is relevant to the case;
identifying these issues is the lawyer’s job. It is com-
mon for lawyers to discuss the nature of the issues with
the expert in advance. In part, this allows the lawyer
to determine whether this is the appropriate expert to
give the opinion. e lawyer should frame the issue

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