Failure to Prove a Fact or Document
 52.10 Where, through accident, mistake or other cause, a party fails to prove some fact or document material to the party’s case, (a) the judge may proceed with the trial subject to proof of the fact or document afterwards at such time and on such terms as the judge directs; or (b) where the case is being tried by a jury, the judge may direct the jury to find a verdict as if the fact or document had been proved, and the verdict shall take effect on proof of the fact or document afterwards as directed, and, if it is not so proved, judgment shall be granted to the opposite party, unless the judge directs otherwise.  R.R.O. 1990, Reg. 194, r. 52.10. RULE 53  EVIDENCE AT TRIAL Evidence by Witnesses Oral Evidence as General Rule 53.01 (1) Unless these rules provide otherwise, witnesses at the trial of an action shall be examined orally in court and the examination may consist of direct examination, cross-examination and re-examination.  R.R.O. 1990, Reg. 194, r. 53.01 (1). Trial Judge to Exercise Control (2) The trial judge shall exercise reasonable control over the mode of interrogation of a witness so as to protect the witness from undue harassment or embarrassment and may disallow a question put to a witness that is vexatious or irrelevant to any matter that may properly be inquired into at the trial.  R.R.O. 1990, Reg. 194, r. 53.01 (2). (3) The trial judge may at any time direct that a witness be recalled for further examination.  R.R.O. 1990, Reg. 194, r. 53.01 (3). Leading Questions on Direct Examination (4) Where a witness appears unwilling or unable to give responsive answers, the trial judge may permit the party calling the witness to examine him or her by means of leading questions.  R.R.O. 1990, Reg. 194, r. 53.01 (4). Interpreter (5) Where a witness does not understand the language or languages in which the examination is to be conducted or is deaf or mute, a competent and independent interpreter shall, before the witness is called, take an oath or make an affirmation to interpret accurately the administration of the oath or affirmation to the witness, the questions put to the witness and his or her answers.  R.R.O. 1990, Reg. 194, r. 53.01 (5). (6) Where an interpreter is required under subrule (5), the party calling the witness shall provide the interpreter, unless the interpretation is to be from English to French or from French to English and an interpreter is provided by the Ministry of the Attorney General.  R.R.O. 1990, Reg. 194, r. 53.01 (6). Evidence by Affidavit With Leave of Court 53.02 (1) Before or at the trial of an action, the court may make an order allowing the evidence of a witness or proof of a particular fact or document to be given by affidavit, unless an adverse party reasonably requires the attendance of the deponent at trial for cross-examination.  R.R.O. 1990, Reg. 194, r. 53.02 (1). (2) Where an order is made under subrule (1) before the trial, it may be set aside or varied by the trial judge where it appears necessary to do so in the interest of justice.  R.R.O. 1990, Reg. 194, r. 53.02 (2). Expert Witnesses Experts’ Reports 53.03 (1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference scheduled under subrule 50.02 (1) or (2), serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). O. Reg. 438/08, s. 48; O. Reg. 170/14, s. 17. (2) A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). O. Reg. 438/08, s. 48. (2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information: 1. The expert’s name, address and area of expertise. 2. The expert’s qualifications and employment and educational experiences in his or her area of expertise. 3. The instructions provided to the expert in relation to the proceeding. 4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates. 5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range. 6. The expert’s reasons for his or her opinion, including, i. a description of the factual assumptions on which the opinion is based, ii. a description of any research conducted by the expert that led him or her to form the opinion, and iii. a list of every document, if any, relied on by the expert in forming the opinion. 7. An acknowledgement of expert’s duty (Form 53) signed by the expert. O. Reg. 438/08, s. 48. Schedule for Service of Reports (2.2) Within 60 days after an action is set down for trial, the parties shall agree to a schedule setting out dates for the service of experts’ reports in order to meet the requirements of subrules (1), (2) and (3), unless the court orders otherwise. O. Reg. 438/08, s. 48; O. Reg. 537/18, s. 8 (1). Sanction for Failure to Address Issue in Report or Supplementary Report (3) An expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set out in, (a) a report served under this rule; (b) a supplementary report served on every other party to the action not less than 45 days before the commencement of the trial; or (c) a responding supplementary report served on every other party to the action not less than 15 days before the commencement of the trial. O. Reg. 348/97, s. 3; O. Reg. 537/18, s. 8 (2). Extension or Abridgment of Time (4) The time provided for service of a report or supplementary report under this rule may be extended or abridged, (a) by the judge or associate judge at the pre-trial conference or at any conference under Rule 77; (b) by the court, on motion; or (c) on the written consent of the parties, except that the parties may not consent to an extension that would affect the scheduled trial date. O. Reg. 570/98. s. 3; O. Reg. 186/10, s. 4; O. Reg. 383/21, s. 15; O. Reg. 18/22, s. 9. Compelling Attendance at Trial By Summons to Witness 53.04 (1) A party who requires the attendance of a person in Ontario as a witness at a trial may serve the person with a summons to witness (Form 53A) requiring him or her to attend the trial at the time and place stated in the summons, and the summons may also require the person to produce at the trial the documents or other things in his or her possession, control or power relating to the matters in question in the action that are specified in the summons.  R.R.O. 1990, Reg. 194, r. 53.04 (1). Summons may be Issued in Blank (2) On the request of a party or a lawyer and on payment of the prescribed fee, a registrar shall sign, seal and issue a blank summons to witness and the party or lawyer may complete the summons and insert the names of any number of witnesses.  R.R.O. 1990, Reg. 194, r. 53.04 (2); O. Reg. 575/07, s. 1. Where Document may be Proved by Certified Copy (3) No summons to witness for the production of an original record or document that may be proved by a certified copy shall be served without leave of the court.  R.R.O. 1990, Reg. 194, r. 53.04 (3). Summons to be Served Personally (4) A summons to witness shall be served on the witness personally and not by an alternative to personal service and, at the same time, attendance money calculated in accordance with Tariff A shall be paid or tendered to the witness.  R.R.O. 1990, Reg. 194, r. 53.04 (4). (5) Service of a summons to witness and the payment or tender of attendance money may be proved by affidavit.  R.R.O. 1990, Reg. 194, r. 53.04 (5). Summons in Effect until Attendance No Longer Required (6) A summons to witness continues to have effect until the attendance of the witness is no longer required.  R.R.O. 1990, Reg. 194, r. 53.04 (6). Sanctions for Failure to Obey Summons (7) Where a witness whose evidence is material to an action is served with a summons to witness and the proper attendance money is paid or tendered to him or her, and the witness fails to attend at the trial or to remain in attendance in accordance with the requirements of the summons, the presiding judge may by a warrant for arrest (Form 53B) cause the witness to be apprehended anywhere within Ontario and forthwith brought before the court.  R.R.O. 1990, Reg. 194, r. 53.04 (7). (8) On being apprehended, the witness may be detained in custody until his or her presence is no longer required, or released on such terms as are just, and the witness may be ordered to pay the costs arising out of the failure to attend or remain in attendance.  R.R.O. 1990, Reg. 194, r. 53.04 (8).