In 2012, the Honourable Justice David Brown referred to the Rules of Civil Procedure as akin to Lego blocks that allow you to build your own litigation plan, writing:
… The 2010 amendments to the Rules of Civil Procedure made available to judges and counsel alike a big box of LEGO-like building blocks with which they can construct a wide variety of modes of trial: witnesses testifying by viva voce evidence; witnesses testifying, in whole or in part, by affidavit; using pre-hearing affidavits and cross-examinations as examinations for discovery; using pre-hearing affidavits as part of the trial evidence-in-chief of a witness and pre-hearing transcripts as part of the trial cross-examination of a witness; placing time limits on examinations at trial; using written opening statements; pre-trial hot-tubbing by experts; and filing an agreed statement of facts. The range of alternatives is not limited by the specific examples identified … in the Rules because a judge "may give such directions or impose such terms as are just" in respect of the trial and make such order as the judge "considers necessary or advisable with respect to the conduct of the proceeding”.[1]
But are these tools being used in our civil courts?
Arbitration is often touted as faster, more flexible and leaner than civil litigation. Is that necessarily the case or are civil litigators simply declining or failing to use their blocks?
In this article, I consider one particular “block” available to litigators: rule 53.02.
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