Executive Summary: Key Legal and Evidentiary Issues

• Nova Scotia's Civil Procedure Rule 55.13(2)(c) permits a court to grant leave for an expert to provide direct oral testimony beyond their written report only where "justice requires" — a high threshold connoting urgency and necessity.
   
• Plaintiff Jennifer Ann Morris sought leave in the week before trial for her neurology expert, Dr. Richard Leckey, to give limited oral evidence-in-chief to define thirteen complex medical terms in plain language for the court.
   
• Neither Dr. Leckey's qualifications nor the admissibility of his expert report were in dispute; the defendant Primmum Insurance Company opposed the motion on procedural and fairness grounds.
   
• Under Rule 55, an expert's direct testimony is presumptively contained entirely within their written report, and oral evidence beyond the report is treated as exceptional and tightly controlled.
   
• Delay was a central concern: the expert reports had been filed many months before trial, yet the request for direct oral testimony was only brought the week before trial, creating undue prejudice and distraction at a critical stage.
   
• Many of the medical terms Dr. Leckey sought to define were not found in his report, raising further concerns about qualifications, scope, and the risk of introducing new opinions on the eve of trial.

Facts of the case

Jennifer Ann Morris is the plaintiff in a personal injury action against Primmum Insurance Company. The matter was before the Nova Scotia Supreme Court on a pre-trial motion heard by Justice John Keith on December 3, 2025, in Halifax, Nova Scotia, with trial commencing December 1, 2025. In the week leading up to trial, the plaintiff filed a motion seeking leave for her neurology expert, Dr. Richard Leckey, to give limited oral evidence-in-chief. The stated purpose was to provide the court with a plain-language, layperson's explanation of thirteen complex medical terms arising from the plaintiff's injuries, including basilar skull fracture, mastoid fractures (right), petrous fractures (in the context of the right petrous temporal bone), opacification of the mastoid air cells (in the context of the right petrous fracture into the external auditory canal with fluid in the mastoid air cells and auditory canal), sigmoid sinus thrombosis/venous sinus thrombosis, traumatic subarachnoid hemorrhage, traumatic subdural hemorrhage, frontal lobe and temporal contusions, bilateral temporal lobe contusions, contrecoup contusions, pneumocephalus, encephalomalacia, and cranial nerve 6th palsy. Dr. Leckey had filed his independent expert report in compliance with Civil Procedure Rule 55.04, and neither his qualifications nor the admissibility of his report were in dispute. The defendant opposed the relief sought. The defendant's neurology expert, Dr. Dale Robinson, had also filed his expert report in compliance with Rule 55.04, with no contest as to his qualifications or the admissibility of his report. Plaintiff's counsel acknowledged that Dr. Robinson could equally be entitled to offer definitions for the same terms should he choose to do so.

Applicable rules and procedural framework

The case engaged Nova Scotia's Rule 55 — Expert Opinion in its entirety. The court explained the foundational propositions underlying Rule 55: an expert's primary duty is to provide independent, candid, and unbiased testimony owed to the court — not to the retaining party — and, absent exceptional circumstances, an expert's direct testimony is contained entirely within their written report. Expert reports must be served and filed no less than six months before the Finish Date (Rule 55.03(1)), and rebuttal reports are due three months after receiving the initial report (Rule 55.03(2)). The Finish Date — a milestone set at the Date Assignment Conference, required to be no less than 60 days before trial — is the central reference point for all pre-trial deadlines. Once the Finish Date passes, the court's oversight is required for any departure from the established procedural framework. Rule 55.13(2) governs oral expert testimony at trial and sets out that a party may not call an expert whose qualifications and admissibility are admitted unless one of three narrow exceptions applies: the qualifications or admissibility of the report are contested (Rules 55.13(3) and (4)); another party has provided notice before the Finish Date of a requirement to cross-examine the expert (Rule 55.13(2)(b)); or, in rare and exceptional circumstances, the court grants leave because "justice requires that the expert testify" (Rule 55.13(2)(c)). The plaintiff relied on this last exception, arguing that justice required facilitating plain-language meaning for otherwise complex terminology for the benefit of the court.

Reasoning and analysis

Justice Keith undertook a thorough examination of Rule 55 and its underlying principles before turning to the specific circumstances of the motion. The court identified that Rule 55.13(2)(c) is deliberately narrow: the word "requires" connotes urgency and necessity, and the exception does not open the door merely because oral testimony might be in the interest of justice or would serve justice. The court identified several factors relevant to the exercise of discretion, including the content and scope of the proposed opinion evidence, the degree to which the proposed testimony comprised topics already covered or that should have been covered in the original report, the extent of delay in bringing the request, the fairness concerns for opposing parties, and the potential impact on trial dates. On these factors, the court found that numerous concerns with Dr. Leckey's proposed oral testimony greatly outweighed any potential benefit. First, there was significant delay: the expert reports had been filed many months before trial, yet the request was only brought the week before trial, creating undue prejudice and distraction at a time when the parties and the experts needed to prepare for trial rather than address new, unanticipated evidence. Second, many of the thirteen medical terms that Dr. Leckey sought to define could not be found in his report, and no written indication had been provided as to how he would define them — meaning the court and the other parties would only discover the proposed definitions at trial itself. This raised concerns as to whether Dr. Leckey was qualified to opine on matters not sufficiently significant to be included in his report, and whether new opinions might be introduced on the eve of trial in circumstances that would unfairly prejudice the other parties. Third, the court found that explanations regarding the plaintiff's injuries, diagnosis, and prognosis were already contained in the records and in both Dr. Leckey's and Dr. Robinson's reports, and that both neurologists would be cross-examined at trial. The court was not satisfied that the meaning of the medical terms in question required the exceptional relief sought.

Ruling and outcome

The court denied the plaintiff's motion. Justice Keith concluded that he was not satisfied that justice required Dr. Leckey to provide the direct oral testimony being proposed, and the motion to allow Dr. Leckey to testify in direct examination at trial was dismissed. The defendant, Primmum Insurance Company, was the successful party on this motion. No monetary award or costs order was stated in the decision.