Lawyers who perform a portion of their practice in the Courtroom or in front of various Boards and Tribunals such as the Ontario Municipal Board will appreciate that an important part of an expert’s role is in the preparation of his report or witness statement. Almost always these reports form the basis of the expert’s testimony which are entered directly into evidence and form an integral part of the overall public record. A recent Ontario Superior Court Decision has caught the attention of many members of Ontario’s Professional Planning Institute and may signal a change in how expert reports can be prepared based on an interpretation of the new Rules of Civil Procedure.  

By way of background, the Ontario Government commenced a review of the civil justice system in 2007-2009. During the consultation process a common complaint was that too many experts were being labelled essentially as “hired guns” whose reports and evidence was essentially tailored according to their client’s instructions. Flowing from this concern was the recommendation that a new provision be established, one that clarifies the duty of the expect, specifically, that first and foremost, the expert’s, duty is to the court, and assisting it on matters within his or her field and that this duty overrides any obligation to the person from whom he or she has received payment. The results of this recommendation are reflected in changes made to the Rules of Civil Procedure which took effect in 2010. The changes are:

  1. The new Rule 4.1.01, specifying that an expert’s duty to the court “prevails over any obligation owed by the expert to the party by whom or on behalf he or she is engaged:” and
  2. An amendment to Rule 53.03, requiring that an expert complete and sign Form 53, which acknowledges that the expert is aware and understands this duty.

These changes have also affected practices and procedures before the Ontario Municipal Board. The Ontario Municipal Board’s Rules of Practice and Procedure often incorporates the Rules of Civil Procedure, or is influenced by them. Most notably, in 2009, the Ontario Municipal Board introduced the same expert witness Form that was introduced in the Rules of Civil Procedure.

The case in question is a recent Superior Court of Justice Decision issued January 14, 2014 - Moore v.Getahun, 2014 ONSC 237. The change is self-explanatory as contained in the following extract:

“[49] Defence counsel’s written and oral submissions at the conclusion of the trial suggest that “experts are entitled to prepare draft reports and they are entitled to share those drafts with counsel for comment and discussion”.

[50] For reasons that I will more fully outline, the purpose of Rule 53-03 is to ensure the expert witness’ independence and integrity. The expert’s primary duty is to assist the Court. In light of this change in the role of the expert witness, I conclude that counsels’s prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable. [Emphasis added]

[51] If after submitting the final expert report, counsel believes that there is a need for clarification or amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel.

[52] I do not accept the suggestion in the 2002 Nova Scotia decision, Flinn v. McFarland, 2002 NSSC 272, 211 N.S.R. (2d) 201, that discussions with counsel of a draft report go to merely weight. The practice of discussing draft reports with counsel is improper and undermines both the purpose of Rule 53.03 as well as the expert’s credibility and neutrality.

It will be interesting to see to what extent the court’s findings in Moore v. Getahun will be applied in the municipal law context. Many planning witnesses are municipal employees. A strict application of Justice Wilson’s findings could result in the loss of municipal coordination between in-house planner and lawyer. This could prove quite challenging in the context of a Planner’s reporting to Council where the application being considered may become the subject of an appeal and OMB hearing.

It remains to be seen how the OMB will ultimately apply Moore v. Getahun. Professional planners already have an independent obligation to serve the public interest through the Institute’s Professional Code of Conduct(the “Code”). For example, Section 1.2 of the Code requires its Members “to provide full, clear and accurate information on planning matters to decision makers and members of the public”. Furthermore, Section 2.1 of the Code requires its Members “to provide independent professional opinion to clients, employers, the public and tribunals”. 

An appeal of the findings in Moore v. Getahun was lodged on February 12, 2014 (C58338). The appeal is scheduled to be heard in the Ontario Court of Appeal on September 22, 2014. The outcome of the appeal could have clear consequences for practitioners of municipal law as this field focuses almost exclusively on expert opinion. It is anticipated that the Court of Appeal will more clearly define the role that counsel has in the preparation of expert witness reports.