Lawyers who perform a portion of their practice in the Courtroom and/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 as the case may be.  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.  

Briefly, in 2008, amendments were made to the Rules of Civil Procedure which took effect in 2010. Those changes have also affected practices and procedures before the Ontario Municipal Board.   The Ontario Municipal Board’s Rules of Practice and Procedure often incorporates theRules 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 recent Superior Court of Justice Decision issued January 14, 2014 is Moore v. Getahun, 2014 ONSC 237.  The change is self-explanatory in the following excerpt:

“[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.

This is a case involving medical expert opinions.  To date the decision’s reasoning on the duty of an expert witness and the related report(s) that are proffered, has not been judicially considered.