Effective January 1, 2010, a series of amendments respecting expert witnesses were made to the Rules of Civil Procedure. While this area has continued to be the subject of much debate and countless motions, it remains a fairly foreign issue in day to day practice. Too often, when the much anticipated, often feared, trial preparation time rolls around the focus regarding expert witnesses becomes centered on ensuring service deadlines are met, dissecting the Defence theory, and covering all the do’s and don’ts of giving evidence in a civil proceeding.

What is commonly lost in the abyss of trial preparation, is ensuring the rudimentary duties and obligations set out in the often forgotten, many times snubbed, good old Form 53 – Acknowledgment of Expert’s Duty have been satisfied. As we all know, addressing this issue at that late stage in the game often comes hand in hand with much panic and frustration. Almost banking on this oversight is Defence counsel, adding another check to their list of common attacks on the credibility of an expert (often filed somewhere between lack of impartiality and hindsight bias).

How can an expert possibly be of any assistance to the Court, if at the time he prepared his report, he did not understand his fundamental obligations and duties as set out in Form 53? 

Commonly proffered is the reasoning that an expert’s obligations and duties to the Court have not only been expressed, but embedded within case law. Or simply put, that the amendments of January 1, 2010 were a codification of what was already widely understood. At first glance, Form 53 appears to be just that, a codification of the duty of every expert to provide an opinion that is fair, objective and non-partisan, to not stray from their respective area of expertise and to provide the Court with any additional assistance that it may require. Interestingly, what is not set out within Form 53 is the actual meat and potatoes of what should be contained within the four corners of their report.

To take a few steps back, how does an expert become aware of the requirements relating to the information to be contained within their report? While the essential purpose of Form 53 is satisfied in having an expert reflect on their duties, and to whom those duties are owed prior to preparation of their report, is the importance of that reflection lost in that what is actually required of them, is not set out in that form. Presumably, a retainer package will contain an introduction to the Plaintiff, a short summary of the events, a description of the enclosed medical documentation, and a Form 53 (if you are lucky). What it will not contain within that package is a recitation of Section 53.03 of the Rules of Civil Procedure which provides a comprehensive list of the information that is required within the expert’s report – that is our job. Whether we are retaining a first time expert or one who is well versed in the responsibilities associated with being an expert in a civil proceeding, it is of utmost importance to keep the requirements of Rule 53 in mind.

In summary, Form 53 is here and is here to stay. The recommendation herein is simple. Compliance with Rule 53 involves painless measures which when put in place effectively become routine. Have your expert review, understand and execute a Form 53 at the outset of his or her involvement in a file and outline precisely what is required of them perhaps even consider using a template or checklist which your newly retained expert can reference. In this way, you can rest assured that all your ducks (or experts) are neatly in a row.

Greg Neinstein