Executive Summary: Key Legal and Evidentiary Issues

• Dispute over whether a plaintiff can rely on and tender at trial an expert report that was filed by a different party under Rule 55 of the Nova Scotia Civil Procedure Rules.
• Interpretation of Rule 55.02 and 55.03 regarding who may “offer” an expert opinion once a compliant expert report is on the court record.
• Application of the principle that there is “no property in a witness” (including expert witnesses) and that experts owe their primary duty to the court, not to the party who retained them.
• Consideration of potential prejudice and fairness where one party seeks to use another party’s costly expert report, including the role of rebuttal reports and possible costs consequences.
• Determination of whether justice and the Civil Procedure Rules permit the plaintiff to introduce the McKeen Report in its case in chief despite not having retained or filed the report itself.
• Assessment of necessity under s. 7 of the Interprovincial Subpoena Act, and whether an out-of-province subpoena is justified when an expert’s written report will stand as their direct testimony and the expert is available for cross-examination.

Facts of the case

The underlying action is a medical malpractice and negligence claim brought by the plaintiff, Darlah Jean Rogers, against several physicians and the Nova Scotia Health Authority (NSHA). The claim alleges negligent medical treatment provided to Ms. Rogers by named defendant physicians and NSHA as the institutional health-care provider. The matter was originally scheduled as a month-long jury trial set to begin in June 2026, with a “finish date” for pre-trial procedural compliance of February 26, 2026. Within this framework, the parties were required to comply with Rule 55 of the Nova Scotia Civil Procedure Rules, which governs expert opinion evidence, including timelines for filing expert reports and the written representations experts must give the court.

Expert reports and party positions

Before the finish date, the defendant physicians (but not NSHA) filed an expert nursing report from Alison McKeen, R.N. (the McKeen Report), together with the required materials under Rule 55, including the expert’s written representations and qualifications. NSHA, in turn, filed its own rebuttal expert report, also in accordance with Rule 55. Both the plaintiff and the defendant physicians listed Ms. McKeen as an expert witness on their respective Lists of Witnesses. However, the plaintiff did not retain her, did not file her report in its own right, and did not file the corresponding expert materials under Rule 55. Instead, the plaintiff sought to rely on the McKeen Report already on the court file, which addressed, among other things, whether NSHA met the requisite standard of care. No party gave notice of any challenge to Ms. McKeen’s qualifications or to the admissibility of the McKeen Report. NSHA did provide notice of its intention to cross-examine Ms. McKeen. The plaintiff did not give such notice, and expressly did not intend to cross-examine her.

The plaintiff’s concern about proving standard of care

The plaintiff wished to use the McKeen Report as part of her own case in chief to establish breach of the standard of care on the part of NSHA. She expressed concern that if she were not allowed to use the McKeen Report, NSHA might move for a non-suit at the close of the plaintiff’s case on the basis that there was insufficient expert evidence against NSHA. The plaintiff’s strategy, therefore, was to secure Ms. McKeen’s attendance at trial solely to identify her report so that it could be marked as an exhibit and relied on as expert opinion evidence in the plaintiff’s case.

The interprovincial subpoena motion

To implement this strategy, the plaintiff brought a motion seeking an order under the Interprovincial Subpoena Act to certify and issue an out-of-province subpoena to compel Ms. McKeen to attend trial. The plaintiff proposed to call Ms. McKeen only for a limited direct examination: to identify her report so that it could be entered as an exhibit. After that, NSHA could cross-examine her. The plaintiff relied on section 7(1)(a) and (b) of the Interprovincial Subpoena Act, which require the judge to be satisfied that the witness’s attendance in Nova Scotia is necessary for the due adjudication of the proceeding, and that requiring such attendance is reasonable and essential to the due administration of justice. In tandem, the plaintiff acknowledged that Rule 55.13 generally prohibits expert witnesses from giving direct testimony at trial, except in narrow circumstances, and argued that the case fit within Rule 55.13(2)(c), which permits an expert to testify where the presiding judge is satisfied that justice requires it. Alternatively, the plaintiff invited the court to allow her to rely on and tender the McKeen Report even though the report had been filed by the defendant physicians, in which case she would abandon the subpoena motion altogether.

NSHA’s opposition and procedural context

NSHA opposed the motion, arguing that the plaintiff was effectively trying to circumvent the expert-evidence regime in the Civil Procedure Rules by using an opinion report procured and filed by another party. NSHA maintained that only the party who filed the expert report—the defendant physicians—could tender it. In NSHA’s view, the plaintiff could not lead the McKeen Report in its own case, particularly after settling with the defendant physicians. While the defendant physicians did not take a position on the motion, NSHA highlighted that the motion is typically brought ex parte and limited its opposition to showing the alleged inconsistency with Rule 55. During the court’s deliberations on the motion, the plaintiff and the defendant physicians settled, leaving NSHA as the sole remaining defendant. NSHA then argued that because the physicians were no longer parties, the McKeen Report filed on their behalf should no longer be capable of being tendered at trial.

Interpretation of Rule 55 and “no property in a witness”

The court undertook a detailed review of Rule 55 and broader principles of statutory interpretation. Rule 55.02 states that a party may not offer an expert opinion at trial unless the expert’s report (or rebuttal report) has been filed in accordance with the Rule. Rule 55.03 requires that a party who wishes to offer an expert opinion file the report within specific timelines. The court noted that these provisions demand proper filing of expert reports but do not expressly say that only the filing party may ever tender or rely on that report. Applying the “modern approach” to interpretation, the judge read Rule 55 in its full context, together with its purpose of ensuring just, speedy, and proportionate civil proceedings. The court emphasized that expert evidence under Rule 55 is built around two central ideas: that experts owe an overriding duty of independence and objectivity to the court, and that their direct evidence is normally contained entirely in their written reports, disclosed well before trial. Once an expert report is filed with the court together with the expert’s written representations of independence and willingness to participate, the expert becomes a resource for the court rather than a partisan asset. Relying on long-standing authority that there is “no property in a witness,” including expert witnesses, the judge held that no party “owns” an expert or an expert report. Allowing only the filing party to tender the report would effectively give that party a proprietary interest in both the witness and the report, contrary to principle and to the court’s truth-seeking function.

Ability of the plaintiff to rely on the McKeen Report

In light of this analysis, the court rejected NSHA’s position that the McKeen Report could only be introduced if and when the defendant physicians chose to tender it in their own case. Because the McKeen Report was properly filed under Rule 55 by a then-party (the physicians), and no one had challenged its admissibility or the expert’s qualifications, there was no procedural barrier preventing it from being used at trial in general. The plaintiff had also listed Ms. McKeen on her own List of Witnesses, thereby signalling her intention to rely on the expert evidence. All parties knew of the report, had had full opportunity to respond, and NSHA had in fact obtained and filed a rebuttal report and given notice to cross-examine Ms. McKeen. The judge found that requiring every party who wished to rely on the same expert report to file duplicate copies would be redundant and inefficient, and would not further the objectives of the Civil Procedure Rules. The court further held that once a party tenders an expert report at trial, that party is treated as having adopted it as direct evidence and cannot then cross-examine the same expert on it. Only the remaining parties who gave notice of cross-examination retain that right. In this case, the plaintiff did not give such notice and instead intended to tender the McKeen Report as part of her own affirmative evidence. NSHA, having given notice, would be able to cross-examine Ms. McKeen. The possibility that one party may appear to “benefit” from another’s investment in expert evidence was acknowledged. However, the court noted that parties who rely on another side’s expert take a real litigation risk—if the opinion is not favourable or does not materialize, critical evidence might be missing. In addition, any unfairness can be addressed through rebuttal evidence and costs.

Effect of settlement by the defendant physicians

The settlement between the plaintiff and the defendant physicians did not, in the court’s view, strip the McKeen Report of its status as a properly filed expert report on the record. The physicians could not withdraw either the report or the expert’s written representations simply because they were no longer parties. The report had been filed when they were active parties, and the expert had made her representations to the court, not to any particular litigant. The plaintiff had named Ms. McKeen in her List of Witnesses, and NSHA was deemed to have admitted her qualifications and the admissibility of the report. Consequently, the court concluded that the plaintiff remained entitled to introduce or “lead” the McKeen Report at trial, subject to the court’s ongoing gatekeeping role over expert evidence.

Residual discretion under Rule 2.03

Even if the wording of Rule 55 had not led to this conclusion, the court held it would, in any event, exercise its broad discretion under Rule 2.03 (the court’s general power to direct the conduct of proceedings and excuse compliance with the Rules) to allow the plaintiff to lead the McKeen Report. Re-filing the same report in the plaintiff’s name, or extending deadlines to do so, would only jeopardize trial dates and add procedural formality without substantive benefit. Since all parties had already possessed and responded to the McKeen Report for months, there was no real prejudice to NSHA in permitting the plaintiff to rely on it.

Outcome on the interprovincial subpoena motion and overall result

Having found that the plaintiff could introduce the McKeen Report in her case in chief and that Ms. McKeen could be made available for cross-examination by NSHA, the court concluded that her written report would stand as her direct testimony in accordance with Rule 55. Because the substantive expert opinion could already be brought before the court without compelling her in person solely to identify her report, the statutory “necessity” requirement in section 7(a) of the Interprovincial Subpoena Act was not met. As a result, the plaintiff’s motion for an order certifying an out-of-province subpoena to Ms. McKeen was dismissed, with the court noting that Ms. McKeen’s own written representations confirmed her willingness to participate and that any future practical difficulties could be addressed by a fresh motion if needed. On this motion, the successful party was NSHA, which had opposed the subpoena and prevailed. The court deferred fixing any specific dollar amount for costs, stating that costs of the motion would be “in the cause,” meaning they would be determined later in the context of the ultimate disposition of the action. Accordingly, from this decision alone, the successful party on the procedural application is the Nova Scotia Health Authority, and no exact total monetary award, damages, or quantified costs in favour of any party can be determined from the ruling.