Ontario Court of Appeal Releases - Laurie Murphy

Note: An application for leave to appeal to the Supreme Court of Canada was dismissed on September 17, 2015.

Today the Ontario Court of Appeal released its long-awaited decision in Moore v. Getahun, dealing with significant issues in relation to the preparation and use of expert witness reports at trial, including the scope of permissible communications between counsel and expert witnesses.

The Court of Appeal unanimously held that the trial judge erred in holding that it was unacceptable for counsel to review and discuss draft expert reports.

The Court disagreed with the trial judge's statement that the 2010 amendments to rule 53.03, dealing with expert witnesses, introduced a "change in the role of expert witnesses". In its view, "the changes were intended to clarify and emphasize the existing duties of expert witnesses." The Court stated that "the independence and objectivity of expert witnesses is fostered under existing law in a number of ways" through the ethical and professional standards of the legal profession, the ethical standards of other professional bodies and the adversarial process.

The Court stated:

[62] I agree with the submissions of the appellant and the interveners that it would be bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports. Just as lawyers and judges need the input of experts, so too do expert witnesses need the assistance of lawyers in framing their reports in a way that is comprehensible and responsive to the pertinent legal issues in a case.

[63] Consultation and collaboration between counsel and expert witnesses is essential to ensure that the expert witness understands the duties reflected by rule 4.1.01 and contained in the Form 53 acknowledgment of expert's duty. Reviewing a draft report enables counsel to ensure that the report (i) complies with the Rules of Civil Procedure and the rules of evidence, (ii) addresses and is restricted to the relevant issues and (iii) is written in a manner and style that is accessible and comprehensible. Counsel need to ensure that the expert witness understands matters such as the difference between the legal burden of proof and scientific certainty, the need to clarify the facts and assumptions underlying the expert's opinion, the need to confine the report to matters within the expert witness's area of expertise and the need to avoid usurping the court's function as the ultimate arbiter of the issues.

[64] Counsel play a crucial mediating role by explaining the legal issues to the expert witness and then by presenting complex expert evidence to the court. It is difficult to see how counsel could perform this role without engaging in communication with the expert as the report is being prepared.

[66] For these reasons, I reject the trial judge's proclamation that the practice of consultation between counsel and expert witnesses to review draft reports must end. ...

Documentation and disclosure of consultations regarding draft reports:

The Court of Appeal further held that consultations between counsel and expert witnesses attract the protection of litigation privilege and that draft reports, notes and records of any consultations between experts and counsel are privileged and need not be disclosed.

The Court stated:

[70] Pursuant to rule 31.06(3), the draft reports of experts the party does not intend to call are privileged and need not be disclosed. Under the protection of litigation privilege, the same holds for the draft reports, notes and records of any consultations between experts and counsel, even where the party intends to call the expert as a witness.

[71] Making preparatory discussions and drafts subject to automatic disclosure would, in my view, be contrary to existing doctrine and would inhibit careful preparation.

[73] It is important to note that the litigation privilege attaching to expert reports is qualified, and disclosure may be required in certain situations.

[78] Absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, a party should not be allowed to demand production of draft reports or notes of interactions between counsel and an expert witness. Evidence of an hour and a half conference call plainly does not meet the threshold of constituting a factual foundation for an allegation of improper influence. In my view, the trial judge erred in law by stating that all changes in the reports of expert witnesses should be routinely documented and disclosed. She should not have ordered the production of Dr. Taylor's drafts and notes.

The appeal was dismissed as the Court of Appeal concluded that the errors did not affect the outcome and no substantial wrong or miscarriage of justice flowed from the errors.

For the full decision see Moore v. Getahun, 2015 ONCA 55