Moore v Getahun, 2015 ONCA 55

On January 29, 2015, the Court of Appeal affirmed counsel’s role in assisting experts with preparation of their expert witness reports for trial. In a controversial decision handed down by Madam Justice Wilson of the Ontario Superior Court of Justice in January 2014, counsel’s practice of reviewing draft reports was ordered to stop. At trial, Justice Wilson took issue with an admission by one of the defendant’s experts that he had made changes to his draft report (prior to finalizing it) following an hour and a half discussion with defence counsel:

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. [Emphasis mine.]

Her remarks caused considerable concern in the legal profession and in the community of expert witnesses. Both the Advocates’ Society and the Canadian Institute of Chartered Business Valuators struck task forces to develop a response. On appeal there were interveners including The Advocates’ Society, The Canadian Defence Lawyers Association, The Criminal Lawyers’ Association and The Ontario Trial Lawyers Association, all of whom opposed the trial judge’s ruling. The respondent conceded that the views expressed by the trial judge were erroneous.

Writing for the Court of Appeal, Justice Sharpe agreed with the appellants and the interveners, and reversed the comments made by Justice Wilson regarding expert witness reports. Specifically, Justice Sharpe disagreed with the trial judge’s statement that the 2010 amendments to the rule 53.03 introduced a “change in the role of expert witnesses.” Justice Sharpe concluded that the amendments to rule 53.03 codified and reinforced the basic common law principles that expert evidence presented to the court should be seen as independent product of the expert uninfluenced as to form and content, and that an expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise.

In response to the concern that the impartiality of evidence may be tainted by discussions with counsel, Justice Sharpe made three observations. First, the ethical and professional standards of the legal profession forbid counsel from engaging in practices likely to interfere with the independent and objectivity of expert witnesses. Second, the ethical standards of other professional bodies place an obligation upon their members to be independent and impartial when giving expert evidence. Third, the adversarial process, particularly cross-examination, provides an effective tool to deal with cases where there is a real possibility that counsel improperly influenced an expert witness.

Justice Sharpe also confirmed that the role of counsel in reviewing draft expert reports complies with the Rules of Civil Procedure and the rules of evidence. Furthermore, it ensures that the report addresses, and is restricted to, the relevant issues and is written in a manner and style that is accessible and comprehensive. He also noted the if expert witnesses were left entirely to their own devices it would frustrate the timely and cost-effective adjudication of civil disputes.

Justice Sharpe concluded 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.

Expert witnesses are everywhere in civil litigation. Almost all tort litigation in which the quantum of damages is at issue will require a valuator or actuary to give evidence. Litigation in the domains of personal injury, competition, professional malpractice, environmental law, planning, and product liability depend on experts. The Superior Court’s decision, if allowed to stand, would have required a wholesale reconsideration of how lawyers balance their obligations to the Court, their clients, and the experts. The Court of Appeal’s reasons endorse the propriety of what lawyers have been doing, in the ordinary course, for decades, and reaffirm that the professional duties of lawyers are sufficient to guard against abuse of the Counsel-lawyer relationship.

Read the Court’s decision here.