Expert Reports

Prohaska v Howe, 2016 ONSC 48 (CanLII)

[24] During argument, I observed that this Rule appeared to contemplate a requirement to serve expert reports at least thirty (30) days before trial. I also directed the parties to the decision of Nolan J. in Tosti v. Society of the Madonna (2011 ONSC 339 (CanLII)). In that case, at paragraph 30, Nolan J. adopts an interpretation of Rule 18.02 that would require expert reports to be prepared in writing and served on the opposite party at least 30 days in advance of the trial.

[25] The rule is certainly open to that interpretation, and it is clear that the Rule envisions expert reports as a type of document that the Court will have to consider in applying Rule 18.02.

[26] However, the Appellant directed my attention to three other decisions. First, there is the decision in Steckley v. Haid ([2009] O.J. No. 2014 (Small Claims Crt.), Deputy Judge J.S. Winny) in which the Deputy Judge noted that there is no rule of the Small Claims Court requiring service of an expert report in advance of trial. The Deputy Judge goes on to note that short service of an expert report may require an adjournment. There is nothing in this decision about whether there were any issues of admissibility about the specific expert’s report.

[27] The decision in Sutherland Estate v. MacDonald ([1999] O.J. No. 785 (Small Claims Court, Deputy Judge Young)) goes further. At paragraph 13, the Deputy Judge states:

"The wisdom of the Courts of Justice Act is that it permits judges in this informal court of summary procedure to hear all such evidence without first canvassing by voir dire or otherwise, its necessity and reliability. In Small Claims Court, this exercise, while still required, may routinely be carried out after the evidence has been adduced and heard."