In the lower court's controversial decision released last
year, the court criticized the practice of counsel reviewing draft
expert reports and communicating with experts. The court stated
that counsel should not review or comment on draft expert reports
because of the risk that such reports could be shaped by the views
expressed by counsel. This criticism caused considerable concern in
the legal profession, as well as in the community of expert
witnesses (see our previous post on the Moore case
The Court of Appeal dismissed the appeal, holding that the
determinations made on the expert evidence issue by the lower court
judge did not affect the actual outcome of the trial.
Importantly, Justice Sharpe, writing for the majority of the
Court of Appeal, held that the trial judge erred in concluding that
it was improper for counsel to assist an expert witness in the
preparation of the expert's report.
Justice Sharpe stated 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."
Justice Sharpe further stated that "[C]ounsel play a
crucial mediating role by explaining the legal issues to the expert
witness and then by presenting complex expert evidence to the
court. It is difficult to see how counsel could perform this role
without engaging in communication with the expert as the report is
With respect to the issue of continuous disclosure of
consultations regarding draft reports, Justice Sharpe held that
"absent a factual foundation to support a reasonable suspicion
that counsel improperly influenced the expert, a party should not
be allowed to demand production of draft reports or notes of
interactions between counsel and expert witnesses." In Justice
Sharpe's view, making preparatory discussions and drafts
subject to automatic disclosure would be contrary to existing
doctrine and would inhibit careful preparation. Further, compelling
production of all drafts, good and bad, would discourage parties
from engaging experts to provide careful and dispassionate
opinions, but would instead encourage partisan and unbalanced
reports. Moreover, allowing open-ended inquiry into the differences
between a final report and an earlier draft would run the risk of
needlessly prolonging proceedings.
Accordingly, the Court of Appeal rejected the trial judge's
holding that counsel should not review draft reports with experts,
as well as her holding that all changes in the reports of expert
witnesses should be routinely documented and disclosed.
The Court of Appeal's decision in Moore seems to
have lifted the haze caused by the trial judge's decision and
clarified the role of the expert and the manner in which expert
reports are to be prepared under the 2010 amendments to rule 53.03
of the Ontario Rules of Civil Procedure. Further, the
Court of Appeal's decision is important guidance in respect of
the preparation and presentation of expert reports in trial courts
across the country.
Dentons is a global firm driven to provide you with the
competitive edge in an increasingly complex and interconnected
marketplace. We were formed by the March 2013 combination of
international law firm Salans LLP, Canadian law firm Fraser Milner
Casgrain LLP (FMC) and international law firm SNR Denton.
Dentons is built on the solid foundations of three highly
regarded law firms. Each built its outstanding reputation and
valued clientele by responding to the local, regional and national
needs of a broad spectrum of clients of all sizes –
individuals; entrepreneurs; small businesses and start-ups; local,
regional and national governments and government agencies; and
mid-sized and larger private and public corporations, including
international and global entities.
Now clients benefit from more than 2,500 lawyers and
professionals in 79 locations in 52 countries across Africa, Asia
Pacific, Canada, Central Asia, Europe, the Middle East, Russia and
the CIS, the UK and the US who are committed to challenging the
status quo to offer creative, actionable business and legal
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. Specific Questions relating to
this article should be addressed directly to the author.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
On Thursday, September 22, 2016, Dentons hosted a panel discussion about the management of liabilities and risks associated with environmental crises, including potential liabilities for directors and officers and provided insight into risk and liability techniques associated with environmental crisis management.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).