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On January 29, 2015, the Ontario Court of Appeal released its decision in Moore v. Getahun,[1] holding that lawyers and experts can and should work together as the expert prepares his or her report.

Trial Decision

The decision under appeal was a medical malpractice case that relied on expert testimony. At trial, the Honourable Madam Justice Janet Wilson criticized the widespread practice of counsel consulting privately with experts and reviewing draft expert reports. At paragraph 52, she stated:

The practice of discussing draft reports with counsel is improper and undermines both the purpose of Rule 3.03 as well as the expert’s credibility and neutrality.[2]

Justice Wilson indicated that her decision was based in part on the 2010 amendments to the Rules of Civil Procedure. Those amendments explicitly recognized the common law duty of expert witnesses to provide opinion evidence in a manner that is fair, non-partisan and objective. Specifically, rule 53.03 establishes the framework that parties must follow when they intend to call an expert witness at trial. Rule 4.1.01(1) addresses the duty of an expert witness to provide evidence that is fair, non-partisan and objective.

At paragraph 520, Justice Wilson elaborated, stating:

The purpose of Rule 53.03 of the Rules of Civil Procedure is to ensure the independence and integrity of the expert witness. The expert’s primary duty is to the court. In light of this change in the role of the expert witness under the new rule, I conclude that counsel’s practice of reviewing draft reports should stop. There should be full disclosure in writing of any changes to an expert’s final report as a result of counsel’s corrections, suggestions, or clarifications, to ensure transparency in the process and to ensure that the expert witness is neutral.[3]

Justice Wilson’s comments regarding the impropriety of communications between counsel and experts came as a shock to many in the legal community, as well as in the community of expert witnesses. Many saw the decision as unprecedented, unsupported in law, and contrary to prudent litigation standards. A number of prominent advocacy groups came forward in an effort to voice their discontent with the decision of Justice Wilson. Organizations such as the Advocates’ Society, the Canadian Institute of Chartered Business Valuators and the Canadian Defence Lawyers Association, all of whom opposed the trial judge’s ruling, sought and were granted intervernor status in the appeal.

Court of Appeal Decision

In the result, a unanimous Court of Appeal concluded that the trial judge had erred in holding that it was improper for counsel to review and discuss draft reports with the expert witnesses who prepared them.

  1. Counsel and Experts Permitted to Discuss Draft Reports

The Court disagreed with the trial judge’s assessment that the 2010 amendments to Rule 53.03 introduced a significant change in the role of expert witnesses. The amendments did not create new duties, but were instead intended to “clarify and emphasize the existing duties of expert witnesses.”[4] The Court further held that “banning undocumented discussions between counsel and expert witnesses or mandating disclosure of all written communications is unsupported by and contrary to existing authority.”[5] Pointing to the example of patent law, the Court held that in some highly technical areas, “expert witnesses ‘require a high level of instruction by the lawyers’ which may necessitate ‘a high degree of consultation’”.[6]

The Court pointed to a number of safeguards that protect the objectivity of expert evidence even in cases where the expert witness has communicated with counsel in relation to his or her report. First, the ethical and professional standards of the legal profession prohibit lawyers from engaging in practices that interfere with the independence and objectivity of expert witness.[7] A lawyer’s interaction or communications with an expert witness regarding the preparation of the expert’s report are subject to the lawyer’s duty to abide by these standards. Similarly, the ethical standards of other professional bodies, such as those regulating medical professionals or engineers, require their members to maintain independence and objectivity when providing expert evidence.[8] Finally, the adversarial process itself, particularly through cross-examination, provides effective methods of addressing concerns regarding the objectivity of an expert witness. The Court noted: “Judges have not shied away from rejecting or limiting the weight to be given to the evidence of an expert witness where there is evidence of a lack of independence or impartiality.”[9]   

The Court of Appeal further held that “leaving the expert witness entirely to his or her own devices, or requiring all changes to be documented in a formalized written exchange, would result in increased delay and cost in a regime already struggling to deliver justice in a timely and efficient manner.” [10] The changes suggested by the trial judge would run contrary to the interests of justice and frustrate the timely and cost-effective adjudication of civil disputes.

Importantly, the Court indicated that it is the role of counsel to explain the legal issues to expert witnesses and then explain the expert’s findings to the Court. It would be difficult for counsel to present complex expert evidence to the Court if he or she does not engage in communication with the expert as the report is being prepared.[11]

For all these reasons, the Court of Appeal determined that “consultation and collaboration between counsel and expert witnesses is essential to ensure that the witness understands the duties reflected by rule 4.1.01 and contained in the Form 53 acknowledgment of expert’s duty.” Nothing would be gained by prohibiting counsel from meeting with expert witnesses to discuss draft reports. Allowing counsel to review draft reports “enables counsel to ensure that the report (i) complies with the Rules of Civil Procedure and the rules of evidence, and (ii) addresses and is restricted to the relevant issues and (iii) is written in a manner and style that is accessible and comprehensible.”[12]

The Court of Appeal’s decision makes clear that counsel in Ontario can continue to meet with expert witnesses to review and discuss draft reports, provided that when doing so, both counsel and experts adhere to the ethical and professional standards of their profession, which prohibit any interference with the objectivity or interference of expert witnesses.

  1. Litigation Privilege Protects Draft Expert Reports

The Court also addressed the issue of which consultations between lawyers and experts need to be documented and disclosed to the opposing party. The Court held that, as a starting point, litigation privilege applies to draft expert reports, as well as the expert’s file and communications with counsel.[13] Making preparatory discussions and drafts subject to automatic disclosure would violate existing doctrine and discourage litigants from recording preliminary views and opinions, which is a necessary step in the development of a sound, well-reasoned opinion.[14]

However, where the party seeking production of draft reports or notes of discussions between counsel and experts can show reasonable grounds to suspect that counsel communicated with an expert witness in a manner that is likely to affect the expert’s objectivity, the court can order disclosure or such discussions.[15] At paragraph 78, the court stated:

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.

  1. Court of Appeal Does Not Order New Trial

In the result, the Court held that the trial judge’s errors with respect to the treatment of expert evidence did not give rise to a substantial wrong or miscarriage of justice, and that the trial judge would have reached the same result even if she had not made these errors. As such, the Court of Appeal did not order a new trial. 

Discussion

The Court of Appeal’s decision in Moore v. Getahun confirmed that counsel and experts can continue to engage in the well-established practice of meeting to discuss draft expert reports. Permitting lawyers to participate in the process of drafting and revising expert reports will help counsel to better understand and more effectively communicate expert evidence at trial. The ethical and professional obligations to which lawyers and experts must adhere prohibit inappropriate conduct that could jeopardize an expert’s objectivity. This decision underscores the critical role that litigators play in ensuring that the evidence before the Court is presented in a comprehensible manner that effectively addresses the live issues in the litigation.

 

[1] 2015 ONCA 55 [“Ont. C.A. Decision”].

[2] 2014 ONSC 237 at para. 52 [“Ont. Sup. Ct. Decision”].

[3] Ont. Sup. Ct. Decision at para. 520.

[4] Ont. C.A. Decision at para. 52

[5] Ont. C.A. Decision at para. 55.

[6] Ont. C.A. Decision at para. 55.

[7] Ont. C.A. Decision at para. 57.

[8] Ont. C.A. Decision at para. 60.

[9] Ont. C.A. Decision at para. 61.

[10] Ont. C.A. Decision at para. 65.

[11] Ont. C.A. Decision at para. 64.

[12] Ont. C.A. Decision at para. 63.

[13] Ont. C.A. Decision at para. 68.

[14] Ont. C.A. Decision at para. 71.

[15] Ont. C.A. Decision at para. 77.