On January 14, 2014, Madam Justice Wilson in Moore v. Getahun, 2014 ONSC 237 concluded that the expert’s primary duty is to assist the Court and therefore, counsel’s practice of reviewing draft reports with their expert prior to final submission should cease. She stated at paragraphs 50 and 51 that:
Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable. If after submitting the final expert report, counsel believes that there is a need for clarification and amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel.
The practice in Alberta, as it is in Ontario, is for counsel to review draft expert reports with the expert before submitting them to the court and opposing counsel. The reasons for this review are many and each counsel has their own reason for wishing to speak with their expert before his or her opinions are laid bare to the Court and opposing counsel. The reasons vary from ensuring punctuation and grammar are correct to ensuring the expert has a solid understanding of the facts before his or her opinion is turned over for cross examination. Of course, Madam Justice Wilson is attempting to address the situation where counsel essentially re-writes the expert report to be more favourable to one's own case so in this respect her aims are well placed and hopefully will result in more expert independence and integrity.
As a result of this case, counsel in Ontario will most certainly be reviewing their general practice of retaining experts and will be forced to consider which corrections, clarifications or amplifications are worth informing opposing counsel of after submission of a final report. On the other side of the country, litigators in Alberta will be closely watching to see if the Alberta Courts follow Madam Justice Wilson’s stance on this issue.