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
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
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