Rule change allows expert evidence to be preserved

A modification to a court’s rules of civil procedure, which previously prohibited the collection of evidence for a case prior to commencement of a proceeding, now allows the preservation of evidence of a potential witness in advance of a trial.
The Ontario Court of Appeal ruled in TD Insurance Home and Auto v. Sivakumar that the rule change was sufficient to re-litigate a case, which is usually not allowed under the legal principle of res judicata (i.e. cases that have already been decided should not be re-opened).
In April 2002, a five-and-a-half-month-old infant sustained a serious head injury. The child’s mother told hospital staff he had fallen down the stairs, but several months later, the law firm representing the family put the automobile insurer on notice of their intention to commence a legal action for injuries sustained by the infant.
The insurance company retained three experts to provide opinions about the cause of the child’s injuries. They noted the injuries were likely caused by a fall and not by a motor vehicle accident.
Concerned about how long the matter might take to go to trial, the insurer sought to preserve the experts’ evidence despite the fact that no legal proceeding had been brought.
At the trial level, the court ruled that Rule 36.01 of the court’s rules of civil procedure permitted a party to conduct examination under oath for the purposes of preserving witness evidence, but because there was no existing action, the insurer was not a party within the meaning of the rule.
In that decision, the trial judge suggested that the province’s Civil Rules Committee consider an amendment to the rule based on the possibility that no proceeding would be taken until as late as 2021 and that the evidence by then would no longer be fresh. In addition, given the age of the experts, there was a possibility they would be unable to testify in the future.
The rule was amended to provide a definition of party to include a party to a pending or intended proceeding.
The rule thus changed, the insurer returned to court to seek an order under the new version of Rule 36.01. The respondents argued the matter was res judicata, but the Appeal Court found the rule change represented a change in circumstance that allowed the matter to be re-opened.