Civil Procedure Rules of Nova Scotia  
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Part 11 - Trial and Hearing

Rule 55 - Expert Opinion

Scope of Rule 55
55.01 (1) This Rule provides procedure about expert opinion sought to be introduced at the trial of an action or hearing of an application in court, and it does each of the following:
   
(a)
requires disclosure of an expert opinion to be offered on a trial or hearing;
   
(b)
provides for exclusion of expert opinion evidence that is not disclosed as required;
   
(c)
requires experts to make written representations to the court about the independence of the expert and the expert’s participation in the proceeding;
   
(d)
limits discovery of experts.
  (2) This Rule does not affect the rules of evidence by which expert opinion is determined to be admissible or inadmissible.
  (3) A party may offer an expert opinion as evidence, in accordance with this Rule.
       
Report required
55.02   A party may not offer an expert opinion at the trial of an action or hearing of an application in court unless an expert’s report, or rebuttal expert’s report, is filed in accordance with this Rule.
       
Deadline for filing report
55.03 (1) A party to an action who wishes to offer an expert opinion, other than in rebuttal of an expert opinion offered by another party, must file the expert’s report no less than six months before the finish date, or by a deadline set by a judge.
  (2) A party to an action who receives an expert’s report stating an opinion the party contests, and who wishes to offer a rebuttal expert opinion, must file a rebuttal expert’s report no more than three months after the day the expert’s report is delivered to the party, or by a deadline set by a judge.
  (3) A party to an application in court who wishes to offer an expert opinion, or a rebuttal expert opinion, must file an expert’s report, or a rebuttal expert’s report, before the deadline set by the judge who gives directions and appoints a date for the hearing of the application.
  (4) Despite Rules 55.03(1) to (3), in a family proceeding reports must be filed at either of the following times, unless a judge directs otherwise:
   
(a)
an expert’s report, the day before a conference at which a judge appoints the date for the hearing of the proceeding;
   
(b)
a rebuttal expert’s report, no more than thirty days after the day of the conference.
       
Content of expert’s report
55.04 (1) An expert’s report must be signed by the expert and state all of the following as representations by the expert to the court:
   
(a)
the expert is providing an objective opinion for the assistance of the court, even if the expert is retained by a party;
   
(b)
the witness is prepared to testify at the trial or hearing, comply with directions of the court, and apply independent judgment when assisting the court;
   
(c)
the report includes everything the expert regards as relevant to the expressed opinion and it draws attention to anything that could reasonably lead to a different conclusion;
   
(d)
the expert will answer written questions put by parties as soon as possible after the questions are delivered to the expert;
   
(e)
the expert will notify each party in writing of a change in the opinion, or of a material fact that was not considered when the report was prepared and could reasonably affect the opinion, as soon as possible after arriving at the changed opinion or becoming aware of the material fact.
  (2) The report must give a concise statement of each of the expert’s opinions and contain all of the following information in support of each opinion:
   
(a)
details of the steps taken by the expert in formulating or confirming the opinion;
   
(b)
a full explanation of the reasons for the opinion including the material facts assumed to be true, material facts found by the expert, theoretical bases for the opinion, theoretical explanations excluded, relevant theory the expert rejects, and issues outside the expertise of the expert and the name of the person the expert relies on for determination of those issues;
   
(c)
the degree of certainty with which the expert holds the opinion;
   
(d)
a qualification the expert puts on the opinion because of the need for further investigation, the expert’s deference to the expertise of others, or any other reason.
  (3) The report must contain information needed for assessing the weight to be given to each opinion, including all of the following information:
   
(a)
the expert’s relevant qualifications, which may be provided in an attached resumé;
   
(b)
reference to all the literature and other authoritative material consulted by the expert to arrive at and prepare the opinion, which may be provided in an attached list;
   
(c)
reference to all publications of the expert on the subject of the opinion;
   
(d)
information on a test or experiment performed to formulate or confirm the opinion, which information may be provided by attaching a statement of test results that includes sufficient information on the identity and qualification of another person if the test or experiment is not performed by the expert;
   
(e)
a statement of the documents, electronic information, and other things provided to, or acquired by, the expert to prepare the opinion.
       
Content of rebuttal expert’s report
55.05   A rebuttal expert’s report must be signed by the expert and provide all of the following:
   
(a)
representations and information required in an expert’s report;
   
(b)
the name of the expert with whom the rebuttal expert disagrees and the date of that expert’s report;
   
(c)
a quotation of the statement of opinion with which the rebuttal expert disagrees;
   
(d)
a statement that the rebuttal opinion is strictly confined to the same subject as the quoted opinion;
   
(e)
the rebuttal opinion and no further opinion.
       
Reports in an application
55.06 (1) An expert’s report may be filed in an application as an exhibit to the expert’s affidavit, or as a judge directs.
  (2) The affidavit and report stand as the entire direct evidence of the expert, except that in an application in which qualification is not admitted by the other party the judge may permit the party who files the affidavit to ask supplementary questions on qualification.
  (3) The party who files an expert’s report in an application must arrange to have the expert present at the hearing if another party gives notice that the party disputes qualification or requires cross-examination.
       
Expert jointly retained by adverse parties
55.07 (1) Parties who are adverse to one another in a proceeding may agree to jointly retain an expert, and jointly file the expert’s report.
  (2) The parties may agree that they will admit to the opinion when it is delivered, and, if they agree to make such an admission, the opinion may be proved against a party as an admission.
  (3) Parties who file a joint expert’s report may not file the report of another expert on an issue about which an opinion is given in the joint report, unless a judge permits.
  (4) Despite the deadline for filing a report provided in Rule 55.03(1), a party to an action may file a joint expert’s report anytime before the finish date.
       
Consequential disclosure
55.08 (1) A party who files an expert’s report or a rebuttal expert’s report must disclose, by supplementary affidavit of documents or the applicable method of disclosing electronic information, a document or electronic information considered by the expert that is in the control of the party.
  (2) The disclosure must be made no later than the day the report is filed.
  (3) The party must also disclose any real or demonstrative evidence considered by the expert that is in the control of the party.
  (4) The expert must provide a copy of the document or electronic information, or provide disclosure of another thing, that was considered by the expert and is in the control of the expert but not the party.
       
How expert proposed to be qualified
55.09   A party who files an expert’s report, or a rebuttal expert’s report, must also file a statement of the qualification to be sought from the court at the trial or hearing, which statement may take the form, “[name of party] will ask that [name of expert] be found to qualify as an expert in the field of [field], capable of giving opinion evidence on the subject of [describe the subject of the opinion].”
       
Objection to report and advance ruling
55.10 (1) A party who receives a report and who wishes to have the opinion evidence excluded at the trial or hearing on the basis that the report does not sufficiently conform with this Rule must, in a reasonable time, notify the party who delivers the report of the deficiency.
  (2) A party may make a motion for an order determining whether a report sufficiently conforms with this Rule to permit the purported expert to testify at a trial or hearing.
  (3) An order under this Rule is binding at the trial of an action or hearing of an application only on the issue of conformity with Rule 55.04 or 55.05.
       
Questioning expert in writing
55.11 (1) A party may not obtain a discovery subpoena for or deliver interrogatories to an expert witness, but a party may interview or discover an expert if the expert and the party who delivers the expert’s report agree.
  (2) A party who receives an expert’s report, or a rebuttal expert’s report, may, no more than thirty days after the day the report is delivered, deliver to the other party written questions to be answered by the expert.
  (3) The questions may only call for information that is not privileged and is relevant to one of the following:
   
(a)
the expert’s qualifications;
   
(b)
a factual assumption made by the expert;
   
(c)
the basis for an opinion expressed in the expert’s report.
  (4) The party who receives written questions must deliver them to the expert immediately.
  (5) The expert must fully answer the questions in writing, sign the answer, and deliver it to each party no more than thirty days after the day the questions are delivered to the expert.
  (6) A party may not submit supplementary questions, unless the parties agree or a judge allows otherwise.
  (7) A party who receives written questions may make a motion to set aside or limit the questions.
  (8) The opinion of an expert who fails to answer questions in compliance with this Rule 55.11 is inadmissible, and the party who asks the questions may make a motion for an order that the opinion is inadmissible on that ground.
       
Court expert
55.12 (1) A judge who is satisfied on both of the following may appoint a person to formulate an opinion, and report the opinion to the court:
   
(a)
the person is qualified to give the opinion;
   
(b)
the opinion is likely to be admissible.
  (2) An order appointing an expert may contain any of the following terms:
   
(a)
the appointment and a statement of the subjects about which an opinion is required;
   
(b)
a requirement that the expert prepare an expert’s report;
   
(c)
directions to the expert on the contents of the report and whether the expert must answer written questions;
   
(d)
a requirement that the expert file the report and immediately deliver a copy to each party;
   
(e)
a deadline for filing the report;
   
(f)
permission for a party to question the expert in writing or a direction that there will be no questions before the expert gives evidence;
   
(g)
terms for payment of the expert by a party or the parties, which may provide for payment of fees for a custody or access assessment in accordance with the Costs and Fees Act;
   
(h)
any other term the judge requires.
  (3) Questions under an order that permits questioning of a court appointed expert must be asked and responded to in accordance with all of the following, unless the order provides otherwise:
   
(a)
a party to whom the court appointed expert’s report is delivered may, no more than thirty days after the day the report is delivered, submit questions directly to the court appointed expert;
   
(b)
the expert must answer the questions in writing, sign the answer, and deliver it to each party as soon as possible;
   
(c)
a party may not submit a supplementary question, unless all parties and the expert agree, or a judge permits.
  (4) A party may not obtain a discovery subpoena for a court appointed expert, deliver interrogatories to the expert, or obtain an order for discovery of the expert.
  (5) The court must arrange for a court appointed expert to be called for crossexamination by a party who gives reasonable notice that the party wishes to crossexamine the expert.
       
Testimony by expert
55.13 (1) A party to whom an expert’s, or rebuttal expert’s, report is delivered must determine whether to admit or contest the proposed qualification, and the admissibility of the opinion, by no later than the finish date.
  (2) A party may not call an expert whose qualifications, and the admissibility of whose opinion, are admitted, unless one of the following applies:
   
(a)
the expert is also a fact witness and the direct examination is confined to the facts;
   
(b)
the party is notified, before the finish date, that another party requires the expert to be called for cross-examination;
   
(c)
the presiding judge is satisfied that justice requires that the expert testify.
  (3) A party must call an expert whose qualifications are contested, prove the report through the expert, and conduct any supplementary direct examination on qualifications.
  (4) A party must call an expert the admissibility of whose opinion is contested, prove the report through the expert for the purpose of obtaining a ruling on admissibility, and conduct no further direct examination unless the presiding judge permits.
  (5) A judge who determines that calling an expert was clearly unnecessary may order the party who caused the expert to be called to indemnify another party for the expenses caused by the expert being called.
       
Treating physician’s narrative
55.14 (1) A party who wishes to present evidence from a physician who treats a party may, instead of filing an expert’s report, deliver to each other party the physician’s narrative, or initial and supplementary narratives, of the relevant facts observed, and the findings made, by the physician during treatment.
  (2) A narrative, or initial and supplementary narratives, must be delivered within the following times:
   
(a)
no more than thirty days after the day pleadings close in an action, if the treatment occurs before the action is started;
   
(b)
within a reasonable time after treatment is provided during the course of an action and no later than the finish date;
   
(c)
as directed by a judge in an application.
  (3) A party who receives a narrative, initial narrative, or supplementary narrative expressing a finding may, within a reasonable time, file a rebuttal report that conforms with Rule 55.05.
  (4) A party may not obtain a discovery subpoena for, deliver interrogatories to, deliver written questions to, or obtain an order for discovery of a treating physician who provides a narrative rather than an expert's report.
  (5) A party who calls a treating physician at a trial, or presents the affidavit of a treating physician on an application, may not advance evidence from the physician about a fact, finding, or treatment not summarized in a narrative or covered in an expert’s report.
  (6) A judge who presides at the trial of an action, or the hearing of an application, or who makes a determination under Rule 55.15 must exclude expert opinion evidence of a treating physician who provides a narrative instead of an expert’s report, unless the party offering the evidence satisfies the judge that the other party received information about the opinion, and about the material facts upon which it is based, sufficient for the party to determine whether to retain an expert to assess the opinion and prepare adequately for cross-examination of the physician.
       
Advance ruling on physician’s narrative
55.15 (1) A judge may determine whether a narrative, initial narrative, or supplementary narrative contains sufficient information to permit a treating physician to testify to an opinion stated in the narrative without delivering an expert’s report.
  (2) A judge who determines the sufficiency of a narrative may give directions on either of the following:
   
(a)
the conditions that must be fulfilled before a party may advance evidence from a treating physician about a subject mentioned in the narrative;
   
(b)
the redactions that must be made to the narrative before an opinion expressed in the narrative may be offered as evidence.
  (3) A determination that a narrative contains or does not contain sufficient information, and a direction that a condition must be fulfilled or a redaction must be made, is binding at a trial or hearing in which the expert opinion is offered.
  (4) Nothing in a determination or direction under this Rule 55.15 implies either of the following, and both are to be determined by the judge who presides at a trial or hearing in which the expert opinion is offered:
   
(a)
the qualification of a physician to express an opinion stated in a narrative;
   
(b)
the admissibility of the opinion as an exception to the rule of evidence against admitting opinions.
       

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