Executive Summary: Key Legal and Evidentiary Issues

• The motion focused solely on whether two expert reports met the formal requirements under Rule 55, not on their admissibility.

• Plaintiff failed to raise timely objections under Rule 55.10, undermining the opportunity to address deficiencies early without impacting the trial schedule.

• Both reports contained all declarations required under Rule 55.04(1), including objectivity, willingness to testify, and basis for opinions.

• Objection to Dr. Boyd’s handwritten report under Rule 82.06 was dismissed, as the rule gives discretion but not a requirement to exclude filed documents.

• Employment relationships between the experts and Manulife did not, by themselves, disqualify the reports under Rule 55.

• The court held that both reports sufficiently conformed to the formal requirements and should not be excluded at this stage.

Facts of the case

Carolyn MacDonald, the plaintiff, was a recipient of Long-term Disability (LTD) benefits from the defendant, NSTU Group Insurance Trustee, beginning in February 2021, after being diagnosed with ovarian cancer. For the first two years, she received benefits on the basis that she was totally disabled from performing the essential duties of her own occupation. After two years, the policy definition changed to consider whether she was totally disabled from working in other occupations for which she was qualified.

The LTD plan is structured as a trust fund managed by Manulife Financial, whose case managers adjudicate claims. In February 2023, the defendant ceased payment of MacDonald’s LTD benefits. Before this decision, the plaintiff’s medical evidence was reviewed by Heather Dawson, a Mental Health Specialist employed by Manulife, and Dr. Richard Bruce Boyd, a Medical Consultant also retained by Manulife. Their reports were submitted to a Manulife case manager and later filed by the defendant as expert reports in the litigation.

The motion and expert reports

The plaintiff brought a motion under Rule 55.10(2) of the Civil Procedure Rules on November 19, 2024, heard on December 17, 2024, to determine whether the two expert reports conformed with Rule 55.04, and therefore whether the experts should be permitted to testify at the trial scheduled to commence on April 7, 2025. The reports had been filed on July 5, 2024.

The plaintiff argued that:

• The reports were not originally prepared for litigation.

• Dr. Boyd’s report, which was partly handwritten, did not comply with Rule 82.06 on document format.

• The experts’ connection to Manulife, the trust administrator, compromised their objectivity.

Discussion of procedural rules

The court emphasized that Rule 55.10 is meant to facilitate early correction of deficiencies without delaying trial. It found the plaintiff did not notify the defendant of the alleged deficiencies “in a reasonable time.”

Both expert reports contained the required declarations under Rule 55.04(1):

• Objectivity and assistance to the court,

• Willingness to testify and comply with court directions,

• Disclosure of all relevant content, and

• Readiness to answer questions or disclose new facts affecting the opinion.

Dr. Boyd’s report included a summary from the case manager, a list of reviewed documents, and a three-page handwritten opinion concluding that the plaintiff’s treatment has been appropriate/excellent. His report was clarified via affidavit filed on December 11, 2024, and he was cross-examined during the motion.

Ms. Dawson’s report was a “Mental Health Specialist File Review”, referencing documents such as a brief narrative (21 Oct 2022) and clinic notes from 10 Feb, 5 July, and 27 Sept 2022. She noted a lack of clear medical evidence supporting ongoing impairments and provided mental health support suggestions.

Under Rule 55.04(3), both reports included the necessary background such as qualifications and referenced records. The judge noted that not all subsections of 55.04(3) apply to every report, particularly when no literature or testing was used.

Court’s findings and outcome

Justice Hoskins held that the plaintiff had not shown the reports to be non-compliant with Rules 55.04(2) or (3). He stressed that there is no requirement for reports to be in a specific form, nor does original non-litigation purpose automatically disqualify them. The objection to Dr. Boyd’s handwritten format under Rule 82.06 was rejected, as the rule empowers—but does not compel—the court to exclude filed documents on that basis.

Concerns about the experts’ employment by Manulife were deemed insufficient for exclusion. The court found no authority supporting automatic disqualification based on such relationships.

The court concluded that both reports sufficiently conform to the requirements of Rule 55 and should not be excluded at this preliminary stage. The parties were granted 30 days from the decision’s release (February 26, 2025) to discuss costs. If unresolved, the court would hear submissions.

No monetary award was granted at this stage.