In January of 2014, Madam Justice Wilson of the Ontario Superior
Court of Justice released her reasons in Moore v. Getahun.
The case was not noteworthy for the facts, which related to a
motorcycle accident in which the plaintiff injured his wrist and
claimed that the treatment he received from the attending emergency
room doctor exacerbated his injuries and caused him permanent
The case was very noteworthy, however, for Justice
Wilson's comments in respect of expert reports and, in
particular, the general practice of draft expert reports being
reviewed by the party's lawyer before they are finalized and
served on the other side. At paragraph 520 of her lengthy decision,
Her Honour stated as follows (emphasis is mine):
of Rule 53.03 of the Rules of Civil Procedure is to ensure
the independence and integrity of the expert witness. The
expert's primary duty is to the court. In light of this change
in the role of the expert witness under the new rule, I
conclude that counsel's practice of reviewing draft reports
should stop. There should be full disclosure in writing of
any changes to an expert's final report as a result of
counsel's suggestions, or clarifications, to ensure
transparency in the process and to ensure that the expert witness
Her Honour's comments were in relation to the admission by
one of the defendant's experts that he had made changes to his
draft report (prior to finalizing it) following a telephone
discussion with defence counsel.
As my colleague Rick Del Vecchio noted in a post on this blog
back in June (which you can read here), the Advocates Society went as far as to
convene a Task Force to address the apparent new role of counsel in
interacting with experts. The Task Force released a set of
principles to follow and a position paper, both of which can be
found at this link.
The decision of Justice Wilson was appealed, with the appeal
heard over four days in September. A number of parties intervened
in support of the position that reviewing draft expert reports
should be permissible (without attempting to undermine or persuade
the expert), including the Ontario Trial Lawyers Association, the
Canadian Defence Lawyers Association, the Advocates Society and the
Criminal Lawyers Association.
Justice Sharpe, writing for the majority, agreed with the
appellants and interveners that Justice Wilson erred in holding
that it was unacceptable for counsel to review and discuss draft
expert reports. The reasons can be found here and note that
"the ethical and professional standards of the legal
profession forbid counsel from engaging in practices likely to
interfere with the independence and objectivity of expert
witnesses" and 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
In concluding his comments on the topic, Justice Sharpe flatly
rejected Justice Wilson's proclamation that counsel should no
longer review draft reports with experts. Interestingly enough, the
court dismissed the actual appeal, holding that the determinations
made on the expert evidence issue by Justice Wilson did not affect
the outcome of the trial.
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