Canada: Ontario Superior Court Of Justice Stifles Discussion Between Counsel And Expert

Last Updated: March 7 2014
Article by Don McGarvey, Q.C.

A recently released decision of the Ontario Superior Court of Justice in Moore v. Getahun et al, 2014 ONSC 237 (CanLII), has created concern and controversy about the nature and extent of communications between counsel and an expert.

The Moore case was a medical malpractice case where the Plaintiff suffered a high impact fracture to his right wrist. A full circumferential cast was applied after a partially successful closed reduction surgery but the Plaintiff went on to develop compartment syndrome. Further surgery was required as a result of pain and swelling and the Plaintiff went on to develop lasting permanent injuries as a result of the compartment syndrome and its aftermath.

The Moore case is notable for several reasons, perhaps chief among them are the several evidentiary issues that arose concerning experts and experts' reports pursuant to Rule 53.03 of the Rules of Civil Procedure, R.R.O. 1990, REG. 194.

Within the lengthy decision of Wilson J., not only was the nature and extent of Rule 53.03 analyzed, but the role and duty of an expert in civil litigation in Ontario was clarified, perhaps to a degree that some will find shocking.

This case is worthwhile reading due to its many evidentiary features and rulings. For example, the Court examines whether the report of a treating doctor who has died before trial can be admitted into evidence for the truth of its contents. In addition, the decision also reviews the issue of the admissibility of opinion evidence of treating doctor. The most interesting feature of the case is, however, with respect to an expert's role in civil litigation and the interaction between the expert and counsel.

The backdrop for the analysis of Wilson, J. in relation to the duties of experts in civil litigation (again, in Ontario) has its foundations in the reforms to expert evidence rules in Ontario. On December 11, 2008, changes were made to the Rules of Civil Procedure with further amendments being made on October 16, 2009. In short, as expressed in Rule 4.1.01:

An expert is to be fair, objective and non-partisan. The expert is to provide opinion evidence that is related only to matters that are within the expert's area of expertise. The expert is to provide such additional assistance as the Court may reasonably require to determine a matter in issue. The expert's duty prevails over any obligation owed by the expert to the party by whom he or she is engaged.

Perhaps the distinguishing feature is the fact that in 2010, Rule 53.03 was amended to provide, among other things, that instructions provided to an expert witness must be disclosed to opposing counsel together with the expert's report. The common practice seems to have developed such that lawyers were dealing with their experts over the phone in an apparent effort to avoid having to disclose written instructions.

Against this backdrop, the Court in Moore referred to Rule 53.03 which reads as follows:

An expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set out in,

(a) a report served under this rule; or

(b) a supplementary report served on every other party to the action not less than 30 days before the commencement of trial.

In the Moore case, the defence called Dr. Ronald Taylor, to testify as an expert. Dr. Taylor had filed a first expert report dated February 10, 2009 and a second report dated September 9, 2013. During his evidence, the Plaintiff's counsel reviewed Dr. Taylor's file and found notes about a 1½ hour telephone call which took place prior to trial between defence counsel and Dr. Taylor. During that conversation, defence counsel reviewed Dr. Taylor's draft report and suggested changes be made. While Dr. Taylor indicated to the Court that he was happy with his draft report, he indicated that defence counsel made "suggestions" and he made "the corrections over the phone".

Wilson, J. found this practice to be unacceptable. In finding that the purpose of Rule 53.03 was to ensure the independence and integrity of the expert witness, Wilson J. commented that having regard to the expert's primary duty to the court, the practice of counsel reviewing and commenting on draft expert reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report were deemed "no longer acceptable".

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

The Court said the 2010 amendments to the Rules of Civil Procedure were designed to put an end to the "hired gun approach" to expert evidence and emphasize the independence of the expert witness.

The practice formerly may have been for counsel to meet with experts to review and shape expert reports and opinions. However, I conclude that such changes in Rule 53.03 preclude such a meeting to avoid perceptions of bias or actual bias. Such a practice puts counsel in a position of conflict as a potential witness and undermines the independence of the expert.

With all due respect to Wilson, J., expert witnesses aren't lawyers and many are unfamiliar with the court process. They will necessarily need guidance from counsel with respect to some aspects of their report such as the structure of a report, the key issues to be addressed, the facts upon which the opinions are to be based, and other such similar aspects.

To suggest that counsel can have no hand whatsoever in dealing with an expert after providing the assignment to the expert, is unrealistic and will not allow the expert to assist the Court in the best way possible.

Naturally, counsel is not to suggest or propose what the opinion ought to be. That is for the expert and the expert alone but if the expert is truly going to assist the Court, the experience of counsel necessarily has a proper role to play in the preparation of an expert report.

The suggestion that whatever is talked about between an expert and counsel be disclosed to the opposing party is an infringement on the usual privilege that applies when counsel is communicating with an expert. While the legislation appears to have removed the privilege as it previously existed in Ontario, I would suggest this case goes too far.

This is not to suggest that an expert is not required to disclose his or her file materials upon taking the stand. That is the usual practice, but experts will have their own practices as to whether they overwrite draft reports or continue to hold draft reports on their file as their thinking and opinions evolve in the course of preparing their ultimate opinion in their expert report.

The decision in Moore is not binding on judges in other provinces and I suspect that there will be a good deal more to come on this issue now that Wilson, J. has started the discussion. While the rules with respect to experts are somewhat different in provinces such as Alberta, that is not to suggest that experts are not there to assist the Court. They certainly are there to assist the Court, but to suggest that upon being provided an assignment, counsel cannot communicate with their expert without informing other counsel of the nature of that communication, is not the law in Alberta, nor should it be.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Don McGarvey, Q.C.
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