Recall that the original decision from the Ontario Superior
Court of Justice states that "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
neutrality." The primary concern the court was addressing was
the perception that experts can, on occasion, become malleable; in
essence, "hired guns".
In the much anticipated appeal of the decision just released by
the Ontario Court of Appeal, Justice Sharpe writes "...banning
undocumented discussions between counsel and expert witnesses or
mandating disclosure of all written communications is
unsupported...it would be bad policy to disturb the
well-established practice of counsel meeting with expert witnesses
to review draft reports."1
That is not to say that instances of perceived and actual bias
are no longer a concern, but rather that tools are already in place
to address this concern. Justice Sharpe notes "...the
independence and objectivity of expert witnesses is fostered under
existing law and practice in a number of ways"2 and
then cites examples including professional and ethical standards
governing lawyers and experts as well as the 2010 revisions to Rule
53.03 in the Ontario Rules of Civil Procedure.
Justice Sharpe notes that "The 2010 amendments to Rule
53.03 did not create new duties but rather codified and reinforced
these basic common law principles [as listed in the revised
Rules]."3 I came to the same conclusion (from my
perspective as an expert witness) in a previous article I published
Justice Sharpe also states that compliance with the Rules is
promoted through discussion between the expert and the lawyer,
writing "Consultation and collaboration between counsel and
expert witnesses is essential to ensure that the expert witness
understands the duties reflected by rule 4.1.01 and contained in
the Form 53 acknowledgment of expert's
The Court of Appeal also addresses the extent to which
consultations between lawyers and experts need to be documented and
disclosed to the opposing litigant. The Court of Appeal frames this
issue in the context of litigation privilege and concluded, with
some exceptions noted in the decision, "Making preparatory
discussions and drafts subject to automatic disclosure would...be
contrary to existing doctrine and would inhibit careful
preparation...Allowing an open-ended inquiry into the differences
between a final report and an earlier draft would unduly interfere
with the orderly preparation of a party's case and would run
the risk of needlessly prolonging proceedings... the law currently
imposes no routine obligation to produce draft expert
However, "It is important to note that the litigation
privilege attaching to expert reports is qualified, and disclosure
may be required in certain situations."7 For
example, disclosure obligations may arise from the rule regarding
production of foundational information. Refer to the text beginning
at paragraph 73 of the appeal decision for the Court's analysis
of these exceptions.
The takeaway is "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 an expert
So yes, we can talk. But the conduct of the expert will remain
front and center in the court's assessment of the expert's
1 Paragraphs 55 and 62.
2 Paragraph 56.
3 Paragraph 53.
4 See "Expert Evidence: New Rules Confirm Existing
Responsibilities", Errol Soriano, Lawday (2010).
5 Paragraph 63.
6 Paragraphs 71 and 72.
7 Paragraph 73.
8 Paragraph 78
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