Moore v. Getahun 2015 ONCA

In January 2015, the Court of Appeal for Ontario ruled in Moore v. Getahun that lawyers and experts should be allowed to discuss the contents of expert reports while those reports are being prepared. This ruling reversed the decision of the trial judge, who held that it was improper for counsel to discuss draft reports with their experts.

This case was a medical malpractice action, most of which concerned expert evidence. The Court of Appeal’s decision did not change the outcome of the trial.

In 2010, significant changes were made to the Rules of Civil Procedure relating to expert witnesses in response to the recommendations of the Honourable Coulter Osborne in his review of the civil justice system, Civil Justice Reform Project: Summary of Findings & Recommendations. The changes were designed to foster unbiased expert evidence by clarifying the duty of an expert witness and specifying information that must be contained in an expert’s report.

At trial, Justice Wilson was critical of the long-standing practice of counsel reviewing the draft reports prepared by expert witnesses. She suggested that this practice undermines the ethical rules and standards of the legal profession. As a solution, her Honour required that counsel were not permitted to discuss draft reports with experts, and that all discussions between counsel and their expert be documented and subject to disclosure and production.

Justice Wilson’s statements caused considerable concern in the legal community. On appeal a number of parties intervened in support of the position that counsel should be permitted to review draft expert reports.

The Court of Appeal held that Justice Wilson erred in holding that it was unacceptable for counsel to review and discuss draft expert reports. Justice Sharpe, writing for a unanimous court, disagreed with her Honour’s interpretation that the 2010 amendments to the Rules changed the role of expert witnesses. Rather than change the existing duties of expert witnesses, the purpose of the amendments was to clarify those duties. Justice Sharpe noted that the ethical and professional standards of the legal profession already maintain expert objectivity by forbidding counsel from interfering with the independence and objectivity of expert witnesses. Further, the adversarial process acts as a check in cases where counsel improperly influence an expert witness. His Honour added

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 (para. 6).

The Court of Appeal’s decision provides guidance as follows:

  1. counsel are encouraged to consult with experts to ensure the expert is aware of their duty to the court and to ensure that their report and evidence is accessible, comprehensible and relevant;
  1. counsel are forbidden to interfere with the objectivity and independence of the expert witness; and
  1. it is not necessary for counsel or experts to document all of their communications or changes to draft reports. The review of earlier draft reports and counsel’s communication with the expert at trial will be rare.