A recent decision of the Ontario Superior Court of Justice sheds
light on the law regarding expert-witness evidence in Ontario, with
a focus on maintaining the independence of experts.
In her decision in Moore v. Getahun, Madam Justice
Janet N. Wilson found that the practice of some Ontario lawyers of
reviewing expert reports and providing comments before the reports
are finalized is improper.
She also commented that a lawyer's instructions to his/her
client's expert witness must be given in writing and must be
disclosed to opposing counsel. Accordingly, all communications with
that expert in preparing their report will be scrutinized at
Lawyers frequently recommend that their clients retain
subject-matter experts to assist in litigation. In the commercial
litigation context, we commonly advise clients to engage experts to
prepare business valuation or accounting opinions. Often, these
expert reports help the parties understand their case and reach a
resolution of their matter before trial.
However, should the matter proceed to trial, the expert is
expected to help the court understand matters outside the
court's technical expertise – like financial accounting.
The courts require experts to be fair, objective and non-partisan.
To be sure, this requirement has been codified under Rules 4.1.01
(1) and 53 of the Rules of Civil Procedure which, among
other things, require that experts sign a form acknowledging their
duties to the court.
That being said, it is the client, and not the court (or the
taxpayers of Ontario), who pays for the expert's time. Perhaps
as a result, the practice has developed that lawyers review draft
expert reports in advance and provide comments so as to help the
expert clarify or amplify his or her evidence.
In some cases, lawyers were merely providing the expert with
corrections on grammar and punctuation. In other cases, however,
the integrity of the expert reports and testimony before the courts
may have been affected.
In an effort to curb the trend and remove any doubt as to
whether experts truly are "hired guns," Madam Justice
Wilson issued a lengthy decision on the role of experts in
litigation in Ontario.
Decision in Moore v. Getahun
While Moore v. Getahun was a personal injury matter,
the findings of the court will affect all civil litigation in the
province. In her decision, Madam Justice Wilson stated as
"...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 counsel'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."
The court went on to state that where it is necessary for
counsel to 'clarify' or 'amplify' a report, such
input should be in writing and disclosed to opposing counsel.
Presumably, these further comments from Madam Justice Wilson were
aimed at addressing the practice of many counsel of providing
experts only with oral instructions in order to avoid scrutiny by
opposing counsel or the court at a later date.
The result of the Moore v. Getahun decision is that
counsel in Ontario will have to reconsider how they provide
instructions to experts. The decision makes it clear that all
instructions to experts should be in writing, with the expectation
that if the expert opinion is to be relied upon by a party at
trial, opposing counsel will have an opportunity to review all
communications between counsel and the expert.
Despite the temptation of both counsel and clients to view their
expert as an "advocate," it must be remembered that
regardless of who pays the bill, your expert's duty is
ultimately to the court, not to you.
A notice of appeal from this decision has been filed and may
result in further or different direction from the Ontario Court of
Appeal regarding this important issue.
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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