New Federal Court Rules on Experts

  • August 18, 2010
  • Brisset Bishop

New Rules, published August 18, 2010, now apply in relation to the use of experts in Federal Court. The new rules apply to cases already underway, as well as to future cases.

Broadly speaking, the revisions are intended to ensure the impartiality of experts and to streamline, as well as to minimize, the use of experts.

Experts must now sign a specified Code of Conduct which describes the mandatory contents of an expert’s report, as well as the expert’s obligation of impartiality and to disclose in timely manner any material changes affecting the expert’s qualifications or opinions (including data relied on). In the event of failure to respect the Code, the Court may sanction by disregarding some or all of the expert’s report.

The rules do not apply to treating medical professionals where the evidence is limited to the results of an examination, description of treatment or advice, or to the reason for or results of treatment or advice.

Any objection to an expert, going to disqualification, must be made as soon as possible.

Provision is made for expert conferences, which may be ordered at the Court’s discretion, with a view to identifying areas of agreement and narrowing points of difference.

Experts may now, under the Court’s direction and control, be empanelled for the purpose of giving their testimony. This is so-called hot-tubbing, which has found favour in other jurisdictions, by which the experts give their views and can then question one another.

In dealing with costs, the Court can now specifically consider whether or not the expense of an expert was justified having regard to the nature and complexity of the case and the amount involved.

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