Canada: Expert Reports: More than Just Findings

Last Updated: September 29 2015
Practice Guide by Duff & Phelps

When working with an expert, it is important to be cognizant of requirements governing the preparation of the expert's report and the expert's obligations to the Court. Working within these parameters, the focus of the report is to provide a clear, concise narrative of the expert's analysis and conclusions.

Rule 53.03(1) states "A party who intends to call an expert witness at the trial shall ... serve ... a report, signed by the expert, setting out his or her name, address and qualifications and the substance of his or her proposed testimony [emphasis added]."

What constitutes the "substance" of the proposed testimony is of course a matter open to interpretation. In our view, as a general rule, the basis for the expert's opinion should be apparent from a review of the report (and if applicable, from a review of any additional documents referred to therein).

Rule 53.03 (3) states "an expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set out in the report ..."

A practical implication from the above Rule is that the expert's report provides the foundation for opposing counsel to ensure that the expert does not stray into areas beyond his/her expertise/mandate.

The particular contents of an expert report will be dictated to some extent by the nature of the mandate. However there are fundamental components of an expert analysis that should be communicated.

As of January 1, 2010, expert reports submitted to the Court are required to include specified information outlined in Rule 53.03 (2.1). In addition, The Canadian Institute of Chartered Business Valuators has previously established Standard #310 -- Expert Reports. This Standard provides recommendations to Chartered Business Valuators concerning the content of expert reports.

One common theme between the new Rules of Civil Procedure and Standard #310 is that the guidance is general in nature which, in our view, is appropriate given that the expert should have latitude to communicate his analysis and findings in a manner that fits the circumstances.

We compare the provisions of the new Rules of Civil Procedure and the provisions of the CICBV Standard #310, below:

Rules of Civil Procedure

CICBV Standard #310

The Expert's name and address

Rule 53.03 (2.1)

Paragraph 6.1 (F)

The Expert's area of expertise

Rule 53.03 (2.1)

Not required

The Expert's qualifications, employment and educational experiences in his/her area of expertise

Rule 53.03 (2.1) 2

Not required1

Instructions provided to the Expert

Rule 53.03 (2.1) 3

Paragraph 6.1(B)

Nature of the opinion being sought and each issue in the proceedings to which the opinion relates

Rule 53.03 (2.1) 4

Paragraph 6.1 (E)

Paragraph 9.2 (A)

Statement of the Expert's opinion/ conclusion

Rule 53.03 (2.1) 5

Paragraph 22

Paragraph 11.1

List of assumptions employed in the analysis by the Expert

Rule 53.03 (2.1) 6(i)

Paragraph 9 (E)

Description of research undertaken

Rule 53.03 (2.1) 6 (ii)

Paragraph 9.2 (B)

Listing of the Expert's Scope of Review

Rule 53.03 (2.1) 6 (iii)

Paragraph 8.13

Acknowledgment of Expert's Duty (Form 53 in the Rules)4

Independence

Fairness

Expertise

Rule 53.03 (2.1) 7

Rule 53.03 (2.1) 7

Rule 53.03 (2.1) 7

Paragraph 6.1 (G) Paragraph 6.1 (H) & (I)

Paragraph 6.1 (G) Paragraph 6.1 (H) & (I)

Not required

Substance of the proposed testimony

Rule 53.03 (2)

Various (see below)

CICBV Standard #310 particularizes the types of information to be included in the Expert's reports, including

Standard #310

(a) The effective date of the analysis

Paragraph 6.1 (C)

(b) The date of the report

Paragraph 6.1 (D)

(c) Definitions for defined terms

Paragraph 7.1

(d) Sufficient information to allow the readers to understand how the expert arrived at the conclusion

Paragraph 9.1

(e) Description of the nature of the dispute

Paragraph 9.2 (A)

(f) Statement of the approaches taken and techniques used

Paragraph 9.2 (C)

(g) Description of the calculations

Paragraph 9.2 (D)

(h) Summary of relevant financial information

Paragraph 9.2 (F)

(i) Restrictions and Qualifications on the analysis and report

Paragraph 10.1

Footnotes

1 The expert will typically provide his/her curriculum vitae.

2 CICBV Rule 310 applies to expert reports. An expert report is defined as " any written communication other than a valuation report [which is governed by a different Standard], containing a conclusion..."

3 Pursuant to Paragraph 8.2, " Where the conclusion is qualified by a scope limitation, the limitation shall be explained, setting out the reasons for the limitation and disclosure of the potential impact on the Expert's conclusion."

4 Form 53 is submitted by the Expert to the Court.

This document is not intended to create an attorney-client relationship. You should not act or rely on any information in this document without first seeking legal advice. This material is intended for general information purposes only and does not constitute legal advice. If you have any specific questions on any legal matter, you should consult a professional legal services provider.

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