On January 29, 2015, the Court of Appeal affirmed counsel's
role in assisting experts with preparation of their expert witness
reports for trial. In a controversial decision handed down by Madam
Justice Wilson of the Ontario Superior Court of Justice in January
2014, counsel's practice of reviewing draft reports was ordered
to stop. At trial, Justice Wilson took issue with an admission by
one of the defendant's experts that he had made changes to his
draft report (prior to finalizing it) following an hour and a half
discussion with defence counsel:
The purpose 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 is neutral. [Emphasis mine.]
Her remarks caused considerable concern in the legal profession
and in the community of expert witnesses. Both the Advocates'
Society and the Canadian Institute of Chartered Business Valuators
struck task forces to develop a response. On appeal there were
interveners including The Advocates' Society, The Canadian
Defence Lawyers Association, The Criminal Lawyers' Association
and The Ontario Trial Lawyers Association, all of whom opposed the
trial judge's ruling. The respondent conceded that the views
expressed by the trial judge were erroneous.
Writing for the Court of Appeal, Justice Sharpe agreed with the
appellants and the interveners, and reversed the comments made by
Justice Wilson regarding expert witness reports. Specifically,
Justice Sharpe disagreed with the trial judge's statement that
the 2010 amendments to the rule 53.03 introduced a "change in
the role of expert witnesses." Justice Sharpe concluded that
the amendments to rule 53.03 codified and reinforced the basic
common law principles that expert evidence presented to the court
should be seen as independent product of the expert uninfluenced as
to form and content, and that an expert witness should provide
independent assistance to the Court by way of objective unbiased
opinion in relation to matters within his expertise.
In response to the concern that the impartiality of evidence may
be tainted by discussions with counsel, Justice Sharpe made three
observations. First, the ethical and professional standards of the
legal profession forbid counsel from engaging in practices likely
to interfere with the independent and objectivity of expert
witnesses. Second, the ethical standards of other professional
bodies place an obligation upon their members to be independent and
impartial when giving expert evidence. Third, the adversarial
process, particularly cross-examination, provides an effective tool
to deal with cases where there is a real possibility that counsel
improperly influenced an expert witness.
Justice Sharpe also confirmed that the role of counsel in
reviewing draft expert reports complies with the Rules of Civil
Procedure and the rules of evidence. Furthermore, it ensures that
the report addresses, and is restricted to, the relevant issues and
is written in a manner and style that is accessible and
comprehensive. He also noted the if expert witnesses were left
entirely to their own devices it would frustrate the timely and
cost-effective adjudication of civil disputes.
Justice Sharpe concluded 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 case.
Expert witnesses are everywhere in civil litigation. Almost all
tort litigation in which the quantum of damages is at issue will
require a valuator or actuary to give evidence. Litigation in the
domains of personal injury, competition, professional malpractice,
environmental law, planning, and product liability depend on
experts. The Superior Court's decision, if allowed to stand,
would have required a wholesale reconsideration of how lawyers
balance their obligations to the Court, their clients, and the
experts. The Court of Appeal's reasons endorse the propriety of
what lawyers have been doing, in the ordinary course, for decades,
and reaffirm that the professional duties of lawyers are sufficient
to guard against abuse of the Counsel-lawyer relationship.
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).