By: Derek Nicholson and Sujit Nirman
In Kushnir vs Macari, 2017 ONSC 307, the Defendant brought a Motion to require the Plaintiff to attend two defence medical examinations. While the Plaintiff did not oppose attending the defence medicals, Plaintiff's counsel sought an Order prohibiting ghost writing of the experts' reports. The Order that the Plaintiff sought was that the reports be written and drafted solely and entirely by the examining doctor and that the research and medical record review be conducted solely and entirely by the examining doctor as well. The Plaintiff also sought an Order that the records were not to be shared with any third party.
Justice MacLeod-Beliveau relied on the Oxford Dictionary to explain a 'ghost writer' as "a person whose job it is to write material for someone else who is the named author." Justice MacLeod-Beliveau allowed the Defendant's motion in part, with three additional conditions of the Plaintiff prohibiting ghost writing of the experts' reports added as modified by the Court. In so doing this Judge held as follows: The issue of who actually wrote the report is of particular concern to the litigation bar as many cases are resolved prior to Trial on the basis of the expert reports received"¦if the parties cannot rely on the reports being actually written by the author of the report, it attacks the very foundation and purpose of the expert report in the first place, and frankly wreaks havoc with the litigation process. If reports cannot be relied upon, unnecessary litigation is promoted"¦if the parties cannot rely on the fact that the report is the sole work of its author, then the benefit and cost of expert reports is dubious. The implications accompanying ghost writing of an expert's report are clear and this case, specifically the passage above, admit that those dangers are becoming a significant problem in our legal system.
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