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.
