Introduction

On January 29, 2015, the Ontario Court of Appeal released its much anticipated decision with respect to expert evidence and expert reports. This decision restores the commonly understood role of experts, which is to provide opinion evidence that is fair, objective and non-partisan. Since planning and expropriation law is highly reliant on expert evidence, it is crucial that experts and lawyers understand their duties and obligations in light of the Court of Appeal’s recent decision.

Key Points For Expropriation And Planning Experts And Lawyers

The Court of Appeal’s decision means the following for planning and expropriation experts and lawyers:

  • Lawyers are permitted to review and discuss draft reports with experts;
  • Legal counsel and expert witnesses can and should meet to ensure that expert evidence is clear and pertinent to the matters at issue before the Ontario Municipal Board (the “OMB”);
  • The content of those discussions between counsel and expert witnesses is protected by litigation privilege, which protects communications between legal counsel and a third party where the dominant purpose of that communication is to prepare for litigation;
  • Draft reports, notes and records of any communication between experts and legal counsel are subject to litigation privilege and need not be disclosed to opposing counsel; and
  • Absent reasonable grounds to suspect that counsel improperly interfered with the expert witness’ duties of independence and objectivity, a party should not be allowed to demand production, and the court will not likely order production, of draft reports, notes and records of communication between experts and counsel.

The Ontario Superior Court’s Determination

On January 14, 2014, Justice Wilson of the Ontario Superior Court of Justice released her decision in the medical malpractice case, Moore v. Getahun. The plaintiff motorcyclist hit a parked hummer, fractured his right wrist, and later developed lasting permanent injuries to his right arm as a result of compartment syndrome. Justice Wilson concluded that the plaintiff’s compartment syndrome had been caused by the Defendant doctor applying a full circumferential cast to the initial fracture, an inappropriate treatment that caused permanent damage. During the trial, notes concerning a telephone call that took place between legal counsel and an expert witness were discovered and the expert witness indicated that legal counsel had suggested modifications and corrections to his report.

While counsel for the plaintiff does not appear to have pursued the issue, Justice Wilson ordered the production of the expert witness’s drafts and notes.

In her reasons, Justice Wilson cited what she believed to be changes to the duties and obligations of experts stemming from the Honourable Coulter Osborne’s review of the civil justice system, entitled Civil Justice Reform Project: Summary of Findings& Recommendations (the “Recommendations”). In an effort to address the concerns outlined in the Recommendations about “hired gun” experts1, Justice Wilson held the following:

The practice formerly may have been for counsel to meet with experts to review and shape expert reports and opinions. However, I conclude that the changes in Rule 53.03 preclude such a meeting to avoid perceptions of bias or actual bias. Such a practice puts counsel in a position of conflict as a potential witness, and undermines the independence of the expert.

If counsel seeks clarification or amplification after receipt of an expert’s final report, all communication should be in writing, and any communication should be disclosed to the opposing party.

After Justice Wilson’s determination was released, expropriation and municipal counsel and experts immediately examined the Court’s rationale with keen interest.

The Ontario Court of Appeal’s Determination

The Ontario Court of Appeal held that Justice Wilson erred in holding that it was unacceptable for counsel to review and discuss a draft expert report, but that this error did not affect the outcome in the circumstances of this case.

Several interveners attended at the appeal (including the Canadian Institute of Chartered Business Valuators, the Advocates’ Society, Ontario Trial Lawyers Association, the Holland Access to Justice in Medical Malpractice Group, the Canadian Defence Lawyers Association, and the Criminal Lawyers’ Association) arguing that it would be bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports.

Justice Sharpe, writing for a unanimous Court, agreed with these arguments, finding in particular that:

  • Banning undocumented discussions between legal counsel and expert witnesses or mandating disclosure of all written communications is unsupported by, and contrary to, existing authority;2
  • Counsels’ review of expert reports is important and enables counsel to ensure a report complies with the Rules of Civil Procedure and the rules of evidence, addresses only relevant issues before the court, and is accessible and comprehensible to its audience, and responsive to pertinent legal issues;3
  • Draft reports, notes and records of any communication between experts and counsel are subject to litigation privilege and need not be disclosed to opposing counsel;4
  • Consultation between counsel and expert witnesses is essential to ensure expert witnesses understand their duties;5
  • There are pre-existing mechanisms designed to ensure objectivity and independence of experts:
    • The ethical and professional standards of the legal profession forbid counsel from interfering with the independence and objectivity of expert witnesses.6?    The ethical standards of other professional bodies place obligations on their members to be independent and impartial when giving expert evidence.7?    Cross-examination provides an effective tool to deal with situations where there is an air of reality to the suggestion that counsel improperly interfered with the expert witness’ duties of independence and objectivity.8
  • The 2010 Amendments to Rule 53.03 and the Recommendations associated therewith do not preclude meetings between counsel and experts to review or clarify expert reports nor do they create new duties.9
  • The results of the Recommendations are as follows:
    • New Rule 4.1.01 specifies that an expert’s duty to the court “prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged”;
    • An amendment to Rule 53.03 requires that an expert complete and sign Form 53, acknowledging that the expert is aware and understands this duty.

For those lawyers and expert witnesses appearing before the OMB, it is important to note that Rule 21 and 21.01 of the OMB’s Rules of Practice and Procedure outline similar expert duties as the above 2010 Amendments to the Rules of Civil Procedure.