Canada: Counsel-Expert Communications: Everything Old Is New Again

In December 2014, we had left off with the Ontario Superior Court, in Moore v Getahun1 ("Getahun"), having decided that the historically accepted practice of counsel reviewing drafts of their expert's reports should stop, and that all instructions provided by counsel to his expert must be disclosed to opposing counsel. Previously, such communications had been protected by litigation privilege.2  Not surprisingly, this Draconian judicial ruling shook up the litigation bar.

In Getahun, the plaintiff had suffered an injury, which was misdiagnosed by the defendant, Dr. Getahun.  At trial, several evidentiary issues arose concerning the admissibility of expert evidence under Rule 53.03 of the Rules of Civil Procedure.3  During trial, it became apparent that Dr. Getahun's expert had provided Dr. Getahun's counsel with a draft report, and that counsel and the expert had subsequently spent a lengthy period of time in conference, during which counsel had provided comments and input into the final version of the report.  

Justice Wilson (of the Superior Court) stated that the purpose of Rule 53.03 is to ensure the independence and integrity of the expert witness because the expert's primary duty is to assist the court, rather than the party who hired her.  Therefore, "[t]he 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."4  Consequently, the court ruled that counsel's prior practice of reviewing and shaping an expert's draft report was inappropriate, and had to stop.

There was considerable backlash as a result of this decision.  The obvious inference was that parties would now require two experts:  one to advise counsel, and the other to act as the neutral expert to give evidence at trial.  Furthermore, Justice Wilson's proposed model was simply unworkable:  reports, without the assistance of counsel, could be poorly written by the expert (who is often not an expert in drafting), and would result in them being unhelpful to the court.  Also, considerable time, effort and money would be wasted in the process.

The Getahun decision was appealed5 (in the meantime, courts tended to ignore it). Recently, the Ontario Court of Appeal reversed Justice Wilson's ruling, holding that the widely accepted practice of consultation between counsel and expert witnesses, in the preparation of expert reports, is necessary (within certain limits) to ensure the efficient and orderly presentation of expert evidence, and the timely, affordable, and just resolution of claims. The court pointed out that the 2010 amendments to Rule 53.03 did not introduce a change in the role of experts, as Justice Wilson had suggested, but rather encapsulated a codification of the fundamental common law principle that it is the duty of the expert to provide opinion evidence that is fair, objective and non-partisan.

The court found that the independence and objectivity of expert witnesses was adequately safeguarded by the following existing law and practice:

  1. The rules of professional conduct, which govern the legal profession, prohibit counsel from engaging in practices that are likely to interfere with the independence and objectivity of expert witnesses.
  2. The ethical standards of other professional bodies, such as those that govern physicians and engineers, similarly place an obligation upon members to remain independent and impartial when giving expert evidence.
  3. The adversarial process itself, through cross-examination, provides an effective tool to deal with cases where there is a suspicion that counsel improperly influenced an expert witness.6

The court observed that consultation and collaboration between counsel and their experts is not only essential to ensure that the expert understands her role and duty, but also enables counsel to ensure that the expert's report complies with the Rules, addresses, and is restricted to, the relevant issues, and is written in a manner and style that is accessible and comprehensible to the court.

The "foundational information" of the opinion, however – the data upon which the expert relied to reach his decision - must still be disclosed.7  Furthermore, the court has the inherent discretion to compel production if there is a reasonable suspicion that counsel improperly influenced her expert.

Not surprisingly, Ontario's litigation bar breathed a collective sigh of relief when the court of Appeal restored the status quo to provide an acceptable framework in which lawyers can work with their experts.  The fact is that lawyers play a crucial role in the evidentiary process by explaining the legal issues to expert witnesses, and then by presenting complex expert evidence to the court.  Leaving the expert witness entirely to his own devices, or requiring that all modifications to an expert report be formally documented and disclosed to the adverse party, would result in increased delay and cost, and would inhibit the best presentation of the expert evidence. Essentially, the procedure proposed by Justice Wilson would not have been in the interests of justice, and would have been untenable in practice.8 

However, the Getahun decision is a useful reminder to lawyers and experts alike of the need to comply with their ethical and professional obligations, and for lawyers, in particular, not to improperly influence, or be seen to be improperly influencing, their expert witnesses.   

Footnotes

1. 2014 ONSC 237 (CanLII).

2. Litigation privilege creates a "zone of privacy" in relation to pending or apprehended litigation, so that litigants can prepare their respective cases with their lawyers and necessary third parties, in private, without adversarial interference, and without fear of premature disclosure.

3. Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (Rule 53.03 governs expert evidence).

4. Supra note 1 at para. 52.

5. 2015 ONCA 55 (CanLII). The appeal itself was dismissed, as it did not affect the outcome of the trial.

6. Ibid. at paras. 57, 60 and 61.

7. Supra note 5 at para. 75.

8. Supra note 5 at para. 65.

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