In January of 2014, Madam Justice Wilson of the Ontario Superior Court of Justice released her reasons in Moore v. Getahun. The case was not noteworthy for the facts, which related to a motorcycle accident in which the plaintiff injured his wrist and claimed that the treatment he received from the attending emergency room doctor exacerbated his injuries and caused him permanent harm.
The case was very noteworthy, however, for Justice Wilson's comments in respect of expert reports and, in particular, the general practice of draft expert reports being reviewed by the party's lawyer before they are finalized and served on the other side. At paragraph 520 of her lengthy decision, Her Honour stated as follows (emphasis is mine):
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 suggestions, or clarifications, to ensure transparency in the process and to ensure that the expert witness is neutral.
Her Honour's comments were in relation to the admission by one of the defendant's experts that he had made changes to his draft report (prior to finalizing it) following a telephone discussion with defence counsel.
As my colleague Rick Del Vecchio noted in a post on this blog back in June (which you can read here), the Advocates Society went as far as to convene a Task Force to address the apparent new role of counsel in interacting with experts. The Task Force released a set of principles to follow and a position paper, both of which can be found at this link.
The decision of Justice Wilson was appealed, with the appeal heard over four days in September. A number of parties intervened in support of the position that reviewing draft expert reports should be permissible (without attempting to undermine or persuade the expert), including the Ontario Trial Lawyers Association, the Canadian Defence Lawyers Association, the Advocates Society and the Criminal Lawyers Association.
Justice Sharpe, writing for the majority, agreed with the appellants and interveners that Justice Wilson erred in holding that it was unacceptable for counsel to review and discuss draft expert reports. The reasons can be found here and note that "the ethical and professional standards of the legal profession forbid counsel from engaging in practices likely to interfere with the independence and objectivity of expert witnesses" and 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."
In concluding his comments on the topic, Justice Sharpe flatly rejected Justice Wilson's proclamation that counsel should no longer review draft reports with experts. Interestingly enough, the court dismissed the actual appeal, holding that the determinations made on the expert evidence issue by Justice Wilson did not affect the outcome of the trial.