Changes to Regulations and Expert Evidence

As part of our current awareness services, we troll the Ontario Gazette looking for regulatory changes of interest. I found in the December 27 issue an amendment to the Rules of Civil Procedure which I think may provoke some interesting discussion before it comes into force on January 1, 2010.



4.1.01 (1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,

(a) to provide opinion evidence that is fair, objective and non-partisan;

(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and

(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue. O. Reg. 438/08, s. 8.

Duty Prevails

(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged. O. Reg. 438/08, s. 8.

See: O. Reg. 438/08, ss. 8, 68 (1). (taken from e-Laws)

This seems to me like a significant change in the role of the expert witness, and, if it actually works, will be a huge benefit to the court. I just wonder how this is going to operate in reality. It’s going to be tough for counsel to manage the expectations of their clients – if the expert witness is no longer allowed to advocate for my side, why should I retain them? Human nature being what it is, it may also be difficult for the witness not to “lean” a little one way or the other – either subconsciously advocating for the party who hired them, or consciously working so hard to not appear biased that they actually over-compensate in the other direction!

I’d be very interested to hear from the litigators in the crowd – do you think that this change will have a significant impact on your use of expert witnesses? Is the goal voiced in the regulation a realistic one? How will judges enforce it? What will the impact be on your clients?

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