It is no surprise that even prior to the Covid-19 pandemic, the Ontario court system experienced significant backlogs and cases were not being litigated efficiently, for varying reasons. The pandemic only further complicated matters, resulting in what appears to be an effort to improve these increasing delays through some upcoming changes to the Rules of Civil Procedure.
The new changes to the Rules come into effect on March 31, 2022, and primarily relate to amendments to pre-trial procedure. Below are some of the changes, including a rather major change to the area of expert reports.
A notable change to the pre-trial conference itself is that if the pre-trial judge finds that a pre-trial was unproductive as a result of a party’s conduct, that party may be required to pay costs immediately. How judges define an unproductive conference and how often a party will be made to pay costs will be interesting to see.
A pre-trial conference judge will also now be required to produce a pre-trial conference report in every case. The report will be required to be placed with the Trial Record by the party filing it.
The new Rule relating to expert reports requires parties to deliver a Certificate of Readiness 30 days before a pre-trial conference, ultimately certifying whether they intend to call any expert evidence at trial, and if so, whether the report of the expert was served on the other parties within the time specified. If the expert report was not served on the other parties within the time specified by the Rules, counsel will need to explain why. The reasons provided on the new Form 50A include being granted an extension, having the consent of the other parties to serve the report later, or “other”. Parties are now able to extend the time for service of a report by written consent, but only if the timing does not affect the scheduled trial date.
It is evident that this new Rule is asking the parties to turn their minds to the issue of experts earlier in the litigation process. It hopes to prevent last minute serving or late filing of reports, which will arguably create more efficiency and fewer delays on a case by case basis. Of course, there are potential issues that may arise: medical experts already book up months in advance and so the new Rule may create an even bigger bottleneck when attempting to schedule an assessment. Further, from a defence perspective, the full picture of a Plaintiff’s functioning is not always available until much later on in the proceeding.
However, inefficiencies surrounding expert reports appear to be a common denominator in many matters that are plagued with delays. Perhaps this new Rule, which suggests that these types of delays will no longer be tolerated, will help improve these matters. How strict the consequences of not following the new expert Rules will be, remains to be seen.