Lawyers who perform a portion of their practice in the Courtroom
and/or in front of various Boards and Tribunals such as the Ontario
Municipal Board will appreciate that an important part of an
expert's role is in the preparation of his report or witness
statement as the case may be. Almost always these reports
form the basis of the expert's testimony which are entered
directly into evidence and form an integral part of the overall
public record. A recent Ontario Superior Court Decision has
caught the attention of many members of Ontario's Professional
Planning Institute and may signal a change in how expert reports
can be prepared based on an interpretation of the new Rules of
Briefly, in 2008, amendments were made to the Rules of Civil
Procedure which took effect in 2010. Those changes have also
affected practices and procedures before the Ontario Municipal
Board. The Ontario Municipal Board's Rules of
Practice and Procedure often incorporates the Rules of
Civil Procedure, or is influenced by them. Most notably, in
2009 the Ontario Municipal Board introduced the same expert witness
form that was introduced in the Rules of Civil
The recent Superior Court of Justice Decision issued January 14,
2014 is Moore v. Getahun, 2014 ONSC 237.
The change is self-explanatory in the following excerpt:
" Defence counsel's
written and oral submissions at the conclusion of the trial suggest
that "experts are entitled to prepare draft reports and they
are entitled to share those drafts with counsel for comment and
 For reasons that I will more
fully outline, 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 counsels'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.[emphasis added]
 If after submitting the final
expert report, counsel believes that there is a need for
clarification or amplification, any input whatsoever from counsel
should be in writing and should be disclosed to opposing
 I do not accept the suggestion
in the 2002 Nova Scotia decision, Flinn v. McFarland, 2002 NSSC
272, 211 N.S.R. (2d) 201, that discussions with counsel of a draft
report go to merely weight. 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
This is a case involving medical expert opinions. To date
the decision's reasoning on the duty of an expert witness and
the related report(s) that are proffered, has not been judicially
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