Ontario Court of Appeal Rules on Lawyer - Expert Interaction

On January 29, 2015, the Ontario Court of Appeal released its widely anticipated decision in Moore v. Getahun. Among the numerous issues addressed by the decision was the significant legal issue involving the extent to which counsel in Ontario can be involved with an expert in the preparation of an expert report. This decision will be of particular interest not only to any lawyer working with a client's expert, but also to those professional bodies called upon to provide expert reports.

The Trial Decision
The legal community across Canada was left in a state of considerable concern last year upon the release of the trial decision in Moore v. Getahun, 2014. In that decision, the trial judge concluded that counsel cannot consult privately with experts once they have received the first draft of the expert's report and that "the practice of reviewing draft reports [with the expert] should stop".

Rule 53.03 of the Ontario Rules of Civil Procedure establishes the framework that parties must follow when they intend to call an expert witness at trial. On January 1, 2010, Ontario's Rules of Civil Procedure were amended to recognize explicitly and reinforce well-established common law principles concerning expert evidence, including the common law requirements of independence and objectivity. Rule 4.1.01(1) specifically addresses the duty of an expert witness to provide opinion evidence that is fair, objective and non-partisan.

Moore v. Getahun involved a medical malpractice action in which the plaintiff had a cast applied to his wrist and forearm that were fractured in a motorcycle accident. The plaintiff alleged that the defendant failed to meet the standard of care of a general orthopedic surgeon in a community hospital and that the surgeon's improper casting of the fracture caused a painful condition known as compartment syndrome, which resulted in permanent damage to the muscles in his arm.

At issue in the trial decision was a 1.5 hour conference call between defence counsel and an expert, Dr. Taylor, concerning Dr. Taylor's draft expert report, following which Dr. Taylor produced his final report. Although plaintiff's counsel did not pursue this issue, the trial judge found the communication improper, stating that there had been a "change in the role of the expert witness under the new rule", and therefore concluded that counsel's practice of reviewing draft reports should stop. The trial judge further held that, if after submitting the final expert report, counsel believes there is need for clarification or amplification, "any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel".

Impact of the Trial Decision
In the wake of the trial decision, counsel preparing for trial were caught between two competing, and equally unacceptable, prospects - the possibility of being subject to an adverse outcome at trial for disregarding Moore v. Getahun and the prospect of jeopardizing their clients' position by following the decision and not working with their client's expert in the usual fashion to ensure that the expert has properly addressed the issues in a responsive and comprehensive fashion for the benefit of the court. As a result, several prominent advocacy groups came forward in an effort to provide guidance to the profession, and to ultimately intervene in the action on appeal. As noted by the Court of Appeal, these interveners voiced serious criticism of the trial judge's ruling, with some calling it "unprecedented, unsupported in law and seriously flawed" and "impairing normal, reasonable and prudent litigation practices".

The Court of Appeal Decision
In a lengthy decision, a unanimous Court of Appeal concluded that the trial judge erred in holding that it was unacceptable for counsel to review and discuss the draft expert report with the expert.

The Court of Appeal disagreed with the trial judge's statement that the 2010 amendments to Rule 53.03 introduced a "change in the role of expert witnesses", finding that the amendments "did not create new duties but rather codified basic common law principles", including the duty of an expert witness "to provide opinion evidence that is fair, objective and non-partisan."

The Court of Appeal went on to find that "banning undocumented discussions between counsel and expert witnesses or mandating disclosure of all written communications is unsupported by and contrary to existing authority".

While the Court acknowledged that the consultation process does entail a risk of loss of objectivity on the part of the expert, the independence and objectivity of the expert witness is fostered under existing law and practiced in a number of ways, including:

1. The ethical and professional standards of the legal profession which forbid counsel from engaging in practices likely to interfere with the independence and objectivity of expert witnesses;
2. The ethical standards of other professional bodies which place an obligation upon their members to be independent and impartial when giving expert evidence; and
3. The adversarial process, particularly through cross-examination, which provides an effective tool to deal with cases where there is an air of reality to the suggestion that counsel improperly influenced an expert witness.

The Court of Appeal endorsed a continuation of the well-established practice of counsel meeting with experts to review draft reports and made several additional conclusions, including the following:

• It would be bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports. 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.
• 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 of the Ontario Rules of Civil Procedure, which include the duty to provide opinion evidence that is fair, objective and non-partisan.
• 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.
• 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.
• 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.

The Court of Appeal found that 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.

For these reasons, the Court of Appeal rejected the trial judge's proclamation that the practice of consultation between counsel and expert witnesses to review draft reports must end. However, the Court of Appeal concluded that this error did not give rise to a substantial wrong or miscarriage of justice. Even absent this error, she would necessarily have reached the same result and therefore a new trial was not warranted.

The Implications of Moore v. Getahun
The Court of Appeal made it clear in Moore v. Getahun that counsel in Ontario can continue to engage in the well-established practice of meeting with expert witnesses to review draft reports. However, in so doing, counsel must adhere at all times to the ethical and professional standards of the legal profession which prohibit practices that are likely to interfere with the independence and objectivity of the expert witness. Similarly, individuals providing expert evidence must follow the ethical standards of their professional bodies which place a similar obligation on their members to be independent and impartial when giving expert evidence.

While Moore v. Getahun is a decision rendered in the context of the Ontario Rules of Procedure, the Court of Appeal's decision is also grounded in well-established common law principles concerning expert evidence, including the common law requirements of independence and objectivity. It is therefore likely that the case will have application nationwide.