Canada: Quebec's New Code Of Civil Procedure And Expert Evidence: Five Key Changes

The new Code of Civil Procedure (N.C.C.P.) is coming into force on January 1, 2016. Adopted last year, the objective of this major reform is to modernize and simplify the Quebec justice system in order to [translation] "make our civil justice system more accessible, faster, less onerous and less costly".¹ To achieve this objective, the legislator introduced a number of changes, particularly in regard to expert evidence, often blamed for increasing costs and delays.

In anticipation of its entry into force, here are five key changes regarding expert evidence.

1. Expert opinion indicated in the case protocol

The N.C.C.P. now requires that the parties indicate in their case protocol, at the latest 45 days following the date on which the originating application is served, whether they intend to seek one or more expert opinions, specifying the nature of such opinions and their related foreseeable costs.² This change thus requires the parties to assess, at the outset, whether it is advisable to get an expert opinion, given the related costs (failing which they may not be claimable) even though they generally have very little information at this preliminary stage. If a party does not provide for an expert opinion in the case protocol, it must first seek permission from the Court to have it added. This can be done at any time before the case is declared ready for trial.

2. Joint expert evidence

One of the objectives of the N.C.C.P. is to limit adversarial debates between experts to reduce costs and accelerate proceedings. The new rules encourage the parties to agree to proceed by way of joint expert evidence. If they decide to proceed otherwise, they must indicate in their case protocol the reasons why.³ The Court may also impose joint expert evidence upon the parties if it is necessary to do so to uphold the principle of proportionality and if doing so is conducive to the efficient resolution of the dispute without, however, jeopardizing the parties' right to assert their contentions. In this regard, the courts may favour the appointment of a joint expert in order to quantify the damages claimed in certain cases.

This measure opens the door to the use of "ghost" experts (or expert advisers). Certain parties are likely to retain their services to ensure a better technical understanding of the joint expert opinion so that they are in a better position to seek clarification about the opinion before and during the hearing and to enable an effective (cross-) examination of the joint expert at the hearing. As a result we can expect a duplication of costs, as the parties will have to assume both costs related to the joint expert⁴ and the "ghost" expert. Finally, in some cases – as in professional liability matters where there are often varying points of view about industry standards – there are concerns that the joint expert may be given a quasi decision-making role. It will be interesting to see how far the courts will go in terms of imposing joint experts depending on their different areas of expertise.

3. The expert report stands in lieu of the expert's testimony

In order to shorten the length of hearings during which expert evidence is presented, and to avoid the detailed review of each of the points already covered in the expert report, the N.C.C.P. now provides that the expert report stands in lieu of the expert's testimony.⁵ A party may only examine the expert that it retained or the joint expert to obtain particulars on certain points that are the subject of the expert's report or to get the expert's opinion on new evidentiary elements presented at trial. In all other situations, the party must seek the court's permission.⁶ It will be essential for experts to produce detailed, complete and clearly written reports that set out their analysis and conclusions without ambiguity. Moreover, the right to cross-examine the expert of the other party remains intact. We will have to see how judges will apply this in highly technical and complex cases.

4. The expert's obligation to disclose instructions received from the parties

Under the N.C.C.P., when requested, the expert must inform the court of the "instructions" received from the party that retained him or her.⁷ It remains to be seen what the scope that this new measure will be in light of the protection offered by professional secrecy and litigation privilege. This also raises issues regarding the instructions given to an expert before the matter becomes litigious.

5. Dismissal of an expert report on the grounds of "irregularity, substantial error or bias" within 10 days of becoming aware of such grounds.

Under the N.C.C.P., a party must notify the party wishing to file an expert report in the record within 10 days of becoming aware of grounds for dismissing the report on the basis of "irregularity, substantial error or bias".⁸ In putting this measure in place, the legislator wants the courts to address the admissibility of an expert report as early as possible in the proceedings in order to limit costs and avoid the adjournment of a trial on the grounds that a party's expert report is dismissed during the trial. Consequently, the parties will need to consider the admissibility of expert reports upon their receipt, and a party that does not respect the time period provided by the N.C.C.P. to do so may be forced to assume the court costs incurred by the other party.⁹

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At this stage we cannot say whether the changes made to expert evidence will have their desired effects. However, there is no doubt that they will have a significant impact on the handling of civil litigation cases, even before any court action is taken.

Footnotes

1 Remarks made by the former Minister of Justice Bertrand St-Arnaud at the time the bill instituting the new Code of Civil Procedure was introduced (Le point sur le projet de loi instituant le n.C.p.c., Statement presented in the context of a press conference given by the Minister of Justice, April 30, 2013, Quebec. [Online: ]http://www.assnat.qc.ca/en/actualites-salle-presse/conferences-points-presse/ConferencePointPresse-11223.html].

2 Art. 148 para. 2(4) and 232 N.C.C.P.

3 Art. 148 para. 2(4) N.C.C.P.

4 For which the parties are solidarily responsible.

5 Art. 293 N.C.C.P.

6 Art. 293 and 294 N.C.C.P.

7 Art. 235 para. 2 N.C.C.P.

8 Art. 241 N.C.C.P.

9 Art. 341 para. 3 N.C.C.P.

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