Expert Witness

Richard v. 2464597 Ontario Inc., 2019 ONSC 2104 (CanLII)

[50] The formal requirements for the introduction of expert witnesses are not necessarily required in Small Claims Court. For example, there is no requirement that a voir dire take place prior to hearing expert evidence: see Sutherland Estate v. MacDonald, [1999] O.J. No. 785 (Small Claims Ct.). An expert report is not required to be filed in order for an expert to give evidence at a Small Claims Court trial: see Steckley v. Haid, [2009] O.J. No. 2014 (Small Claims Crt.); Prohaska v. Howe, supra. Nor does a witness have to be explicitly tendered as an expert witness to give an expert opinion: see Untinen v. Dykstra (2016) ONSC 4721 (Div. Ct.) at paras. 9, 29-31.

Untinen v Dykstra c.o.b., Dykstra Roofing & Renovations, IKO Industries Ltd., 2016 ONSC 4721 (CanLII)

[24] The Respondents rely on Prohaska v. Howe, 2016 ONSC 48 (CanLII) (Div. Ct.), in support of their position that there is no such absolute requirement and that the Small Claims Court trial judge retains discretion over the evidence to be presented at trial; all of the circumstances of the matter must be considered in deciding if expert evidence should be received where no prior written report was served and filed.

[25] In Prohaska, LeMay J. specifically reviews the findings of Nolan J. in Tosti together with other jurisprudence. This leads her to the conclusion that there is to be a balancing of how evidence is admitted, and that in considering that balance, Small Claims Court judges can exercise discretion in deciding if opinion evidence should be admitted in the absence of a prior written expert report having been served and filed.

[26] In Prohaska, the trial judge ruled that the expert evidence was inadmissible in the absence of prior service of an expert’s report. The Divisional Court held that Rule 18.02 of the Rules of the Small Claims Court allows for flexibility: expert reports should be served at least 30 days prior to trial, but trial judges have the discretion (by virtue of their gatekeeping role) to allow expert evidence even if the report was not filed ahead of time, as long as they exercise their discretion reasonably.