The Ontario Court of Appeal has put to rest any notion that the
practice of consultation between counsel and expert witnesses to
review draft reports is improper. In its decision in Moore v.
Getahun, 2015 ONCA 55 rendered on January 29, 2015, the
Court explained that "banning undocumented discussions between
counsel and expert witnesses or mandating disclosure of all written
communications is unsupported by and contrary to existing
The Court observed that consultations between counsel and expert
witnesses are essential to ensure that reports comply with the
Rules of Civil Procedure and the rules of evidence,
address relevant legal issues and are written in an accessible
manner. Without engaging in communications with the expert, lawyers
would be prevented from fulfilling their mediating role of
explaining legal issues to witnesses and presenting complex
evidence to the court.
Although the underlying dispute dealt with medical malpractice,
the court noted that in technical areas such as patent law experts
may require substantial instruction by lawyers. As such,
preparation of an expert's report may necessitate a high degree
of consultation and involve an iterative process of numerous draft
The Court further held that documentation regarding draft
reports and consultations need not be disclosed to opposing
parties. Mandating such disclosure would be contrary to the
doctrine of litigation privilege and would compromise careful
preparation of reports. However, the Court noted that the privilege
extending to draft reports is not absolute. For example, disclosure
of draft reports or discussions may be ordered where there are
reasonable grounds to suspect that counsel communicated in a manner
likely to interfere with an expert's independence.
While the Court acknowledged that a process of consultations
risks a loss of objectivity on the part of the expert, it observed
that the ethical and professional standards in the legal profession
serve to diminish such risk. Likewise, the ethical standards of
other professional bodies place an obligation on their members to
be independent and impartial when giving expert evidence. Finally,
the Court noted that the ability of counsel to cross-examine
experts on their reports serves as an effective tool to expose any
improper conduct or influence.
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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