On September 17, 2015, the Supreme Court of Canada denied leave to appeal the decision of the Ontario Court of Appeal, in Tajedin Getahun v. Blake Moore.
Earlier this year, the Court of Appeal had addressed the extent to which communications between counsel and experts is permitted, specifically under the 2010 amendments to the Ontario Rules of Civil Procedure. In overturning the trial judge’s decision, the Appellate Court found that the trial judge erred in holding that it was unacceptable for counsel to review and discuss the draft expert reports. The Court of Appeal took a more practical approach in finding that it was not inappropriate for counsel to review draft expert reports and that consultations regarding draft reports should not be automatically disclosed.
It is fair to say that both the Court of Appeal and Supreme Court have restored logic and practicality to the use of experts in Ontario. Now that leave to appeal has been denied, this would appear to be the final word on the degree of communications that is permitted between counsel and experts and confirms the law in respect of an issue which has been the subject of conflicting authorities.
Find a full copy of the Supreme Court’s decision here.