Ontario’s Court of Appeal Says Lawyers Can Speak to Experts Regarding their Expert Opinion

By: John McLeish and William Keele |

On Thursday, January 29, 2015, the Court of Appeal released its decision in Moore v. Getahun, regarding the appropriate scope of counsel’s involvement in speaking with and providing guidance to experts who provide expert opinion in Court. The appeal raised significant issues regarding the preparation and use of expert reports in civil actions.

In the lower court decision, Justice Janet Wilson of the Superior Court held that the practice of counsel reviewing and offering input to assist the expert witness in providing  an expert’s opinion was no longer proper, in light of amendments to the Rules of Civil Procedure which were implemented in January 2010. In her decision, she wrote:

The practice of discussing draft reports with counsel is improper and undermines both the purpose of Rule 53.03 as well as the expert’s credibility and neutrality.

If after submitting the final expert report, counsel believes that there is need for clarification or amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel.

As a result of Justice Wilson’s decision, counsel and experts were uncertain as to the propriety of lawyers conferring with experts in forming their opinion.

The Court of Appeal disagreed with Justice Wilson. The Court of Appeal held that the trial judge’s decision would represent a major change in practice, and noted that “It is widely accepted that consultation between counsel and expert witnesses in the preparation of Rule 53.03 reports, within certain limits, is necessary to ensure the efficient and orderly presentation of expert’s evidence and the timely, affordable and just resolution of claims.”

The court held:

I agree … that it would be bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports. Just as lawyers and judges need the input of experts, so too do expert witnesses need the assistance of lawyers in framing their reports in a way that is comprehensible and responsive to the pertinent legal issues in a case.

Consultation and collaboration between counsel and expert witnesses is essential to ensure that the expert witness understands the duties reflected by rule 4.1.01 and contained in the Form 53 acknowledgment of expert’s duty. Reviewing a draft report enables counsel to ensure that the report (i) complies with the Rules of Civil Procedure and the rules of evidence, (ii) addresses and is restricted to the relevant issues and (iii) is written in a manner and style that is accessible and comprehensible. Counsel need to ensure that the expert witness understands matters such as the difference between the legal burden of proof and scientific certainty, the need to clarify the facts and assumptions underlying the expert’s opinion, the need to confine the report to matters within the expert witness’s area of expertise and the need to avoid usurping the court’s function as the ultimate arbiter of the issues.

..Precluding consultation would also encourage the use of those expert witnesses who make a career of testifying in court and who are often perceived to be hired guns likely to offer partisan opinions, as these expert witnesses may require less guidance and preparation. In my respectful view, the changes suggested by the trial judge would not be in the interests of justice and would frustrate the timely and cost effective adjudication of civil disputes.

[66] For these reasons, I reject the trial judge’s proclamation that the practice of consultation between counsel and expert witnesses to review draft reports must end. However, as I will discuss below, the trial judge’s unwarranted criticism of the appellant’s counsel on this basis did not, in my view, affect the outcome of the trial.

The Court of Appeal also addressed the issue of production of draft reports at trial as follows:

….Where the party seeking production of draft reports or notes of discussions between counsel and an expert can show reasonable grounds to suspect that counsel communicated with an expert witness in a manner likely to interfere with the expert witness’s duties of independence and objectivity, the court can order disclosure of such discussions. See, for example, Ebrahim v. Continental Precious Minerals Inc., 2012 ONSC 1123 (S.C.), at paras. 63-75, where the court ordered disclosure of draft reports and affidavits after an expert witness testified that he did not draft the report or affidavit containing his expert opinion and admitted that his firm had an ongoing commercial relationship with the party calling him.

[78] Absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, a party should not be allowed to demand production of draft reports or notes of interactions between counsel and an expert witness. Evidence of an hour and a half conference call plainly does not meet the threshold of constituting a factual foundation for an allegation of improper influence. In my view, the trial judge erred in law by stating that all changes in the reports of expert witnesses should be routinely documented and disclosed.

John Mcleish

John Mcleish

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