TOP FIVE HIGHLIGHTS FROM MOORE V. GETAHUN

February 23, 2015

This article by Angela Comella, Lawyer practicing with Gluckstein Personal Injury Lawyers and OTLA Member, was originally posted on OTLA's Blog, February 2015

It takes an exceptional issue to get both the Ontario Trial Lawyers Association and the Canadian Defence Lawyers reading from the same gospel, however the controversial comments regarding counsel/expert relationships in the trial decision in Moore v. Getahun (2014 ONSC 237) did just that.

Following the 2014 trial decision, counsel on both sides of the bar were left confused as to how they ought to deal with their experts. Not surprisingly the appeal of this decision attracted a number of interveners: the Ontario Trial Lawyers Association, Canadian Defence Lawyers, Criminal Lawyers Association, The Holland Group, the Institute of Charted Business Valuators, and the Advocate's Society

On January 29, 2015 the Ontario Court of Appeal released the long awaited decision in Moore v. Getahun (2015 ONCA 55). The decision clarifies the relationship between counsel and experts. This well written and unanimous decision contains many instructive points. With this in mind, we've compiled and highlighted some of the best comments from the Court's decision.

1. General Practice of Expert Consultation

[49] It is apparent from the submissions of the parties and the interveners representing both sides of the bar that, if accepted, the trial judge's ruling would represent a major change in practice. 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. [Emphasis Added]

2. Editing for Clarification and Scope

[63] Consultation and collaboration between counsel and expert witnesses is essential to ensure that the expert witness understands the duties reflected by rule 4.1.01 and contained in the Form 53 acknowledgment of expert's duty. Reviewing a draft report enables counsel to ensure that the report (i) complies with the Rules of Civil Procedure and the rules of evidence, (ii) addresses and is restricted to the relevant issues and (iii) is written in a manner and style that is accessible and comprehensible. Counsel need to ensure that the expert witness understands matters such as the difference between the legal burden of proof and scientific certainty, the need to clarify the facts and assumptions underlying the expert's opinion, the need to confine the report to matters within the expert witness's area of expertise and the need to avoid usurping the court's function as the ultimate arbiter of the issues. [Emphasis Added]

3. Role of Counsel

[64] Counsel play a crucial mediating role by explaining the legal issues to the expert witness and then by presenting complex expert evidence to the court. It is difficult to see how counsel could perform this role without engaging in communication with the expert as the report is being prepared. [Emphasis Added]

4. Consequences of Precluding Expert Consultation

[65] 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. Precluding consultation would also encourage the use of those expert witnesses who make a career of testifying in court and who are often perceived to be hired guns likely to offer partisan opinions, as these expert witnesses may require less guidance and preparation. In my respectful view, the changes suggested by the trial judge would not be in the interests of justice and would frustrate the timely and cost-effective adjudication of civil disputes. [Emphasis Added]

5. Litigation Privilege

[77] In my view, the ends of justice do not permit litigation privilege to be used to shield improper conduct. As I have already mentioned, it is common ground on this appeal that it is wrong for counsel to interfere with an expert's duties of independence and objectivity. Where the party seeking production of draft reports or notes of discussions between counsel and an expert can show reasonable grounds to suspect that counsel communicated with an expert witness in a manner likely to interfere with the expert witness's duties of independence and objectivity, the court can order disclosure of such discussions. See, for example, Ebrahim v. Continental Precious Minerals Inc., 2012 ONSC 1123 (S.C.), at paras. 63-75, where the court ordered disclosure of draft reports and affidavits after an expert witness testified that he did not draft the report or affidavit containing his expert opinion and admitted that his firm had an ongoing commercial relationship with the party calling him.

[78] Absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, a party should not be allowed to demand production of draft reports or notes of interactions between counsel and an expert witness. Evidence of an hour and a half conference call plainly does not meet the threshold of constituting a factual foundation for an allegation of improper influence. In my view, the trial judge erred in law by stating that all changes in the reports of expert witnesses should be routinely documented and disclosed. She should not have ordered the production of Dr. Taylor's drafts and notes. [Emphasis Added]

This is a helpful decision on many levels, firstly it removes the chill which had descended upon all discussions between counsel and their experts. Secondly the Court has clarified the counsel/expert relationship and lastly it has reinforced the principles which call upon counsel to act both ethically and professionally in their dealings with experts and their reports.