CHAPTER 16 Civil Litigation
EXPERT REPORTS The usual practice in Ontario is for the parties to retain their own experts when necessary, although the court can also, on its own motion, appoint an independent expert to opine on an issue in certain circumstances. The parties may cross-examine a court-appointed expert. Subject to objections by the parties, the report of a court-appointed expert will form a part of the evidence at trial. The written report of an expert retained by a party must be provided to the other parties within a stipulated period of time, failing which the expert’s testimony may be excluded. In Québec as well, it is usual for the parties to retain their own experts when necessary, although the parties are required to justify why they do not intend to file a joint expert opinion and this justification may be challenged by the court. Moreover, in Québec, the court can, at any time and on its own motion, appoint an independent expert to opine on an issue. The reports of the experts will form part of the evidence at trial. The parties may cross-examine an expert appointed by a party of adverse interest, but examinations of joint experts or court-appointed experts are limited to asking for clarifications on points covered by these experts in their reports, obtaining the expert’s opinion on new evidence
A witness who refuses to attend to give evidence voluntarily before a court in Ontario or Québec may be compelled to attend by court summons, provided that the witness is resident in Canada. In both Ontario and Québec, when there is no right to compel a witness to attend a trial, the evidence of that witness may be obtained through the issuance of letters of request (also known as letters rogatory), in which case the court issues an order seeking the assistance of a foreign court to order that a witness in the foreign jurisdiction submit to an out-of- court examination and, where appropriate, to produce documents. DOCUMENTARY EVIDENCE All documentary evidence at trial must generally be introduced through the oral testimony of a witness, unless all parties consent to admission of the documentary evidence. Canada has an open court system, and documents are usually publicly available once they have been filed at trial. Although it is possible in some circumstances to obtain a sealing or confidentiality order, it has become increasingly difficult to do so. Litigants should assume that there is a high likelihood that documents filed in connection with litigation will become public.
Litigants should assume that there is a high likelihood that documents filed in connection with litigation will become public.
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