Amendments to Rule 53 ‘aren’t just guidelines, they’re strict rules to adhere to’

This article was produced in partnership with McLeish Orlando LLP.

Almost two years out from the March 2022 amendments to Ontario’s Rules of Civil Procedure, Aidan Vining of McLeish Orlando says the interpretation by the courts sends a clear message: these aren’t just guidelines, they’re strict rules to adhere to — and if you can’t meet them, you’ll need a strong explanation.

“The changes were necessary to set expectations for all parties that you need to be prepared, and you need to look ahead to ensure you’re meeting the deadlines,” says Vining, associate at the firm. “There are so many avenues for delay, and so much time passes from the start of a file to trial, that anything to help speed that process up, make the system more efficient, and ensure more productive use of court and pretrial time is welcome and much needed.”

The Changes

Rule 53.03 deals with the timelines of expert reports and Rule 53.08 deals with those who don’t comply with those timelines. Originally, Rule 53.08 provided an “escape clause”:

If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave shall be granted on such terms as are just and with an adjournment if necessary unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial.

Following the 2022 changes, Rule 53.08 now reads:

(1) If evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave may be granted if the party responsible for the applicable failure satisfies the judge that,

(a) there is a reasonable explanation for the failure; and

(b) granting the leave would not,

(i) cause prejudice to the opposing party that could not be compensated for by costs or an adjournment, or

(ii) cause undue delay in the conduct of the trial.

The issue with the old rule was if one party didn’t comply with the timeline for the service of reports, “the opposing party typically suffered the consequences,” Vining says.

“If one party was permitted to serve expert reports after a pretrial, the other party was left in a situation of either going to trial without a responding report or seeking an adjournment to get a responding report — and further delaying an already delay-riddled system.”

The Caselaw

Looking at judicial commentary in some of the caselaw leading up to the changes, it was clear the courts were frustrated with the inefficient and unproductive use of pretrial time. Examples include the decisions of Justice Stinson in Prabaharan v RBC General Insurance Company, 2018 ONSC 1186 and Justice Firestone in Balasingham v Desjardins Financial Security, 2018 ONSC 1792.

Decisions post-March 2022 demonstrate that the changes to the rules are being applied strictly by the courts, in recognition of the fact that maximizing efficiency of pretrial time can’t be achieved if parties don’t have experts lined up and reports in hand.

In Mohamud v Juskey, 2023 ONSC 4414, the plaintiff had three expert reports served within the timelines set by Rule 53.03, but the defendants brought a motion under s. 105 of the Courts of Justice Act to compel the plaintiff to attend orthopedic and occupational therapist assessments after the deadline had passed. While not directly attempting to introduce a report at trial that was served late, the Court recognized that any report generated from the assessments would be outside of the deadlines imposed by Rule 53.03 and dismissed the motion.

Justice Boswell stated that: “The amendments to r. 53.08(1) are significant and were intended to address the chronic problems that late-filed experts’ reports have historically created for the court’s ability to schedule and hear civil trials . . . I decline to order the plaintiff to attend the proposed medical appointments.”

Similarly, in Van Belois v Bartholomew, 2023 ONSC 5799, the defendant sought an order compelling the plaintiff to attend a neuropsychological assessment and to extend the time for service of the report. In that case, Justice Heeney echoed Justice Boswell’s commentary, adding that late delivery “too often lead to adjournments of trial, backlogs, wasted judicial resources, and delays in access to justice.”

Justice Heeney explained why the changes to Rule 53 were necessary: “The purpose was clear and obvious. The first purpose is to send a very loud and clear message to all sides of the bar that expert reports should be served in a timely manner and in accordance with the provisions of Rule 53.03.”

Ultimately, that motion was dismissed as well.

“In those cases, there was an attempt to do something creative to get reports in late,” Vining says, noting over the past year McLeish Orlando has dealt with similar tactics. “But the courts firmly shut it down and provided strong commentary against it.”

The Takeaway

Though the hardline approach presents a shift for everyone, at McLeish Orlando, it’s a matter of leaning further into what was already a best practice at the firm. “It’s important to be prepared from Day 1,” Vining says. The firm focuses on the entire timeline, sets reminders in everyone’s calendars so it’s top of mind, and builds in systems to ensure nobody is scrambling at the last minute.

“When a file comes in, we’re already thinking ahead to trial and planning for it,” he says, adding that the firm starts by reviewing the client’s injuries and thinking about the experts they might need, whether it’s clear from the start — a serious orthopedic injury, for example, will typically require an orthopedic surgeon report — or involves refining the plan as symptoms evolve.

Another crucial component is regularly reviewing the timelines. McLeish Orlando runs team meetings focused on expert reports, from setting up assessments and ensuring they go ahead as planned, to following up on the reports and making sure they’re served well in advance.

Planning early with the client, working closely with the experts to navigate their various schedules, and allowing ample time to prepare the reports are other key strategies that have only become more important following the amendments to the rules, as the message from the courts is that if you don’t meet the timeline, you can’t use the report — and that has serious implications for your case.

“Initially, we didn’t know how it would be interpreted by the courts but thankfully we’re seeing it’s being strictly followed,” Vining says. “It provides more defined parameters for everyone to work in, determines a set schedule for both sides of the bar, and it increases efficiency when everyone knows what the rules will be.”