The Ontario Court of Appeal has reaffirmed the propriety of
effective consultation between counsel and expert witnesses.
In Moore v Getahun, 2015 ONCA 55, the plaintiff was
injured in a motorcycle accident. Prior to surgery, his wrist was
placed in a cast which resulted in the plaintiff suffering from
compartment syndrome. At trial, the central issue was whether
applying a full cast to the plaintiff's wrist was below the
standard of care, and whether the cast caused the compartment
Experts were retained to provide medical reports on the above
issues. During cross-examination, one expert testified that he
produced and discussed his draft and final report with counsel who
provided advice on the report. The trial judge criticised these
actions and stated that these discussions breached an expert's
duty of impartiality. The judge found that it was improper for
counsel to assist an expert witness in preparation of the
expert's report. This view was challenged on appeal.
The Ontario Court of Appeal concluded that the trial judge erred
in ruling that it is unacceptable for counsel to review and discuss
draft expert reports, although this did not affect the overall
decision of the court.
At paragraph 49, the Court of Appeal discussed Ontario Rules
of Civil Procedure Rule 53.03, stating that it is:
"Widely accepted that consultation between counsel and
expert witnesses in the preparation of
Rule 53.03 reports, within certain limits, is necessary to
ensure the efficient and orderly presentation of expert evidence
and the timely, affordable and just resolution of claims."
Further, Rule 4.1.01(1) specifically states that an expert
witness has a duty to "provide opinion evidence that is fair,
objective, and non-partisan." This evidence should be seen as
the independent product of an uninfluenced party which provides
independent and unbiased assistance to the court.
In Moore, the changes made by the expert at the
direction of counsel were relatively minor, and were aimed at
improving clarity of the report. The Court stated that banning
discussions between counsel and expert witnesses or mandating that
all communication be documented is contrary to well-established
precedent. These discussions may be necessary in highly technical
areas of the law when an expert requires an increased level of
instruction and consultation. Proper communication is vital to the
expert being able to communicate effectively to the court.
There are a number of factors that foster an expert witness'
independence, including: professional standards forbidding counsel
from engaging in practices that may interfere with this
objectivity, ethical standards requiring members of professional
bodies to be impartial when giving expert evidence, and the tool of
cross-examination during the trial process.
Finally, at para 65, the Court stated:
"Leaving the expert witness entirely to his or her own
devices, or requiring all changes to be documented in a formalized
written exchange, would result in increased delay and cost in a
regime already struggling to deliver justice in a timely and
efficient manner. Such a rule would encourage the hiring of
"shadow experts" to advise counsel. There would be an
incentive to jettison rather than edit and improve badly drafted
reports, causing added cost and delay. "
Just as judges require the assistance of expert witnesses, these
expert witnesses require the assistance of lawyers to frame their
evidence in a comprehensive and responsive manner. As such, these
discussions are to be permitted.
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).