The Ontario Court of Appeal has released its much anticipated decision in Moore v. Getahun 2015 ONCA 55.  The decision specifically addresses the extent to which communication between counsel and experts is permitted, specifically under the 2010 amendments to the Ontario Rules of Civil Procedure. These amendments fostered unbiased expert evidence and effectively precluded meetings between experts and lawyers to shape expert reports and opinions.

History of the Proceedings

This decision arises in the context of a medical malpractice action, in which the issue was whether the defendant physician, Dr. Getahun, had met the requisite standard of care in his treatment of his patient, Moore. The trial judge found Dr. Getahun had breached the standard of care expected of a reasonable orthopaedic surgeon. The trial judge took issue with the defendant’s medical expert, concluding that the practice of reviewing and commenting on draft expert reports ought to stop and that discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable.

In this decision, the Court concluded that the trial judge erred in holding that it was unacceptable for counsel to review and discuss the draft expert reports.  The Court also found that the trial judge further erred in using the written expert reports that were neither entered into evidence, nor the subject of cross-examination, to contradict and discredit aspects of the viva voce evidence of the appellant’s expert witnesses. 

The Court did conclude, however, that these errors did not affect the outcome and that no substantial wrong or miscarriage of justice flowed from the errors.  As such, the Court would not be justified in ordering a new trial and the appeal was dismissed.

It is Not Inappropriate for Counsel to Review Draft Expert Reports

In disagreeing with the trial judge, the Court stated that the amendments to Rule 53.03 did not create changes in the role of expert witnesses but rather reinforced the basic common law principles regarding independence and objectivity in expert witnesses.

It was further emphasized that prohibiting undocumented discussions between counsel and expert witnesses or requiring that disclosure of all written communications be produced, is unsupported by any existing authority. 

The Court was very mindful of the reaction of the legal profession to the trial judge’s ruling. Just as lawyers and judges need the input of experts, expert witnesses equally need the assistance of lawyers in framing their reports in a way that is comprehensible and adequately addresses the key issues in the litigation. The Court concluded that from a practical standpoint, “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.”

Consultations Regarding Draft Reports Should Not Be Automatically Disclosed

In turning to the issue of the extent to which consultations between counsel and expert witnesses need to be documented and disclosed to an opposing party, the Court took a very practical approach. As these discussions attract the protection of litigation privilege, making such discussions and drafts subject to disclosure would, in the Court’s view, discourage parties reducing preliminary or tentative views to writing and ultimately, lead to unbalanced reports.

Of course there will be the exceptional cases where a party can show reasonable grounds to suspect that counsel communicated with an expert witness in a manner likely to interfere with the witness’ duties of independence. However, unless a factual foundation to support such allegations can be found, the Court makes it clear in this decision that a party should not be allowed to demand production of draft reports or notes of interactions between counsel and an expert witness.

In a day and age where expert evidence is a significant aspect of civil litigation and has become even more prevalent with the evolution of science and technology, this issue is now, more than ever, at the forefront of civil justice reform. 

This decision provides clarity in respect of a vexing issue which has been the subject of conflicting authorities. It is safe to say that the Court of Appeal has restored both logic and practicality to the use of experts in Ontario.

Find a full copy of the decision here.