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."

[29] First, Deputy Judges must have the authority to exercise a gatekeeping function to determine whether evidence should be admissible. If they did not have this power, then parties in small claims court actions would have the right to call opinion evidence, unlimited character evidence, similar fact evidence, and irrelevant evidence. Cases could go on forever if they were not controlled. The importance of the trial judge’s gatekeeper function has been discussed in many cases (see, for example, Tosti, supra at paragraphs 40 to 46). Adopting the Appellant’s interpretation would not give effect to the gatekeeper function and I accordingly reject it.

[30] Second, it is important to remember that expert evidence is opinion evidence. Unless it meets certain requirements for admissibility, expert evidence is prima facie inadmissible. As a result, it is up to the party seeking to tender the evidence to demonstrate that the trier of fact should consider it. Given that expert evidence can often be lengthy, complex and technical, conducting the analysis of whether the evidence should be admitted is most efficiently done at the outset.

[31] Third, an expert will often provide the Court with specialized information that is beyond the Court’s knowledge. Triers of fact must take care to ensure that they are not influenced by inadmissible opinions offered by third parties. As a result, the gatekeeping function should be exercised more vigilantly with expert evidence.

[32] For all of these reasons, I am of the view that a Small Claims Court Judge does have discretion to consider, and even exclude, expert evidence before the expert testifies. From this, it follows that Deputy Judges have discretion to determine how expert evidence will be placed before the Court.

[37] However, I am of the view that the Small Claims Court Rules expressly provide some guidance on the use of expert reports, and that this guidance is included in Rule 18.02. The Rule seems to suggest that an expert report must be served in advance of trial, and that the trial judge has the right to exclude the report. Indeed, the last words of Rule 18.01 are that the documents “shall be received into evidence unless the trial judge orders otherwise”.