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How to prepare an Evidence Act Notice regarding Medical Experts and Medical Reports

When a party intends to call more than 3 experts and/or rely upon a medical report instead of calling a medical expert, an Evidence Act notice to that effect should be served.  A significant deadline to keep in mind is that expert reports are due 90 days before the pre-trial conference.

Click here for a precedent Notice Regarding Medical Experts and Medical Reports.

Such an Evidence Act notice has two components, as discussed below.

More than 3 Experts

Pursuant to section 12 of the Evidence Act, it is necessary to seek leave to call more than 3 experts.  If that is the intention, it is worthwhile to give opposing counsel a heads up.  In personal injury and medical malpractice trials, more than 3 experts is commonplace.  This is a reference to rule 53.03 experts.

Medical Reports

The second part of the notice indicates that pursuant to section 52 of the Evidence Act, a medical report will be relied on instead of calling the expert to testify.  It is not permissible to both call the witness to testify and file the report as well.

There are two main rationales behind giving notice in this situation.  First, filing the expert medical report may be far less costly than having the expert attend.  Second, it gives opposing a counsel a heads up that the expert is not going to be called.  Opposing counsel can summons the expert or insist they be called.  There are costs consequences if having the expert attend in person turns out to be unnecessary.

10 days notice is the minimum requirement.

Medical Reports, Judges and Juries

In Jury trials where the medical expert testifies, although the report cannot be introduced as an exhibit (and won’t be in any document brief), most Judges appreciate being provided with a copy of the medical report to help them follow along with the medical expert’s testimony.  A copy should therefore be printed for the Judge.

This article is courtesy of the Ontario Civil Trial Manual

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This manual is trial information, not trial legal advice.

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