The chill on communications between lawyers and experts about
draft opinions is over. The highly anticipated decision of the
Ontario Court of Appeal in Moore v. Getahun was released on
January 29, 2015.
In a medical malpractice case, Justice Janet Wilson of the
Ontario Superior Court of Justice had lambasted defence counsel for
spending 90 minutes discussing a draft expert report with the
expert before the report was finalized. She ruled that
"counsel's prior practice of reviewing draft reports
should stop. Discussions or meetings between counsel and an expert
to review and shape a draft report are no longer acceptable."
Moore v. Getahun, 2014 ONSC 237, at paras. 50-52. This decision
received almost universal condemnation from the litigation bar, and
has now been overturned.
The trial judge based her rulings, in part, on 2010 amendments
to the Ontario Rules of Civil Procedure, which codify the
expert's duty to the court (rule 4.1.01), and which require the
execution of an expert's certificate acknowledging this duty
(rule 53.03). She said the amendments were made to counter what has
been perceived to be a problem with litigants coming to court with
"hired gun" experts of questionable independence or
Lawyers can and should review draft reports
The Court of Appeal has now confirmed that lawyers
must work with experts, such as environmental
consultants, to focus and clearly express their opinion testimony.
This is essential to efficient litigation. The lawyer
cannot tell the expert what to say, but must ensure that the export
report addresses the relevant questions in a clear and
comprehensible way that will assist the judge to decide the
Justice Sharpe, writing for the Court of Appeal, wrote that
"banning undocumented discussions between counsel and expert
witnesses or mandating disclosure of all written communications is
unsupported and contrary to existing authority" (para.
 I agree with the submissions of
the appellant and the interveners 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.
Draft reports are privileged
The court also re-established that litigation privilege
protects draft reports, the expert's file and communications
between expert and counsel, unless there is independent
evidence of wrongdoing:
 Pursuant to rule 31.06(3), the draft reports of experts the
party does not intend to call are privileged and need not be
disclosed. Under the protection of litigation privilege, the same
holds for the draft reports, notes and records of any consultations
between experts and counsel, even where the party intends to call
the expert as a witness.
 Making preparatory discussions and drafts subject to
automatic disclosure would, in my view, be contrary to existing
doctrine and would inhibit careful preparation. Such a rule would
discourage the participants from reducing preliminary or tentative
views to writing, a necessary step in the development of a sound
and thorough opinion. Compelling production of all drafts, good and
bad, would discourage parties from engaging experts to provide
careful and dispassionate opinions and would instead encourage
partisan and unbalanced reports. 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
 ... Where the party seeking production of draft reports or
notes of discussions between counsel and an expert can show
reasonable grounds to suspect that counsel communicated with an
expert witness in a manner likely to interfere with the expert
witness's duties of independence and objectivity, the court can
order disclosure of such discussions.
The appeal had many interveners, including the Advocates'
Society, the Holland Group for medical malpractice lawyers, the
Canadian Defence Lawyers Association, the Ontario Trial
Lawyers' Association, and the Criminal Lawyers'
In its decision, the Court referred to the factum of the Advocates'
Society and, in particular, its Principles Governing
Communications with Testifying Experts. The Court indicated
that the Principles provide "a thorough and thoughtful
statement of the professional standards pertaining to the
preparation of expert witnesses" (para. 57), and it attached
those Principles as an appendix to its decision.
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.
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