In litigation, as in life, there is always more than one side to every story. To advocate your position and sway the trier of fact to accept your side of the story, strong, credible, and neutral expert evidence is a must.
Counsel must not lose sight of the purpose of the evidence; to assist the trier of fact in their decision and in their understanding of the issues. Evidence is not to be another mouth piece to communicate their side of the story.
The courts rely on the opinions of these experts, thus necessitating the governance of the expert’s involvement, scope and participation in the litigation. In 2010, Rule 53.03 of the Rules of Civil Procedure was amended to outline what documents are to be disclosed to the other side regarding expert evidence, including the instructing letter, the report, and now a Form 53 signed by the expert stating that they will provide opinion evidence that is fair, objective and non-partisan.
Many lawyers regard the changes to Rule 53 as an opportunity to review and discuss draft or preliminary reports with experts prior to the completion of the final report. The decision of Justice Wilson in Moore v. Getahun, 2014 ONSC 237, which is under appeal to The Court of Appeal, aims to clarify the acceptable interactions between counsel and experts, and seeks to put an end to any behaviour that may diminish the essence of the expert opinion; one which is fair, objective and non-partisan.
The medical malpractice decision of Justice Wilson in Moore concludes that the widespread practice of discussions between counsel and an expert on a draft “should stop”.
In her decision, Justice Wilson considers the purpose of Rule 53.03(2.1), which is:
“to ensure the expert witness’ independence and integrity. The expert’s primary duty is to assist the court… If after submitting the final expert report, counsel believes that there is need for clarification or amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel.”
Justice Wilson outlines the practice expectation between counsel and their experts, with the view that adopting this approach will enhance transparency and is more in keeping with the objectives of the Rule changes.
Moore also provides a new rationale for judges to intervene to reject expert evidence. Justice Wilson expressly rejects the contention that “discussions with counsel of a draft report go to merely weight” and instead concludes that the “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.”
Questions to consider:
- Does this new approach lend itself to enforcing the purpose of Rule 53.03 or in itself undermine the longstanding purpose and intent of expert evidence?
- Do all discussions between counsel and an expert undermine Rule 53.03?
- What if an expert report is not well written? Do discussions regarding grammar and style undermine the purpose and credibility of the expert or work towards the overall purpose of the expert to assist the trier of fact with the understanding of issues?
- We expect that their questions will be answered when The Court of Appeal renders its decisions in the coming months.