Court of Appeal Clarifies the Role and Responsibilities of Expert Witnesses in Ontario
by Art Linton 2015/03/06
A controversial decision in Moore v. Getahun 2014 ONSC 237 (“Moore”) left Ontario lawyers and expert witnesses in a state of conflict and uncertainty. A year later, the Court of Appeal has provided clarity regarding the preparation and use of expert reports before courts and tribunals, Moore v. Getahun 2015 ONCA 55. Expert witnesses and the lawyers who engage them would be wise to carefully consider this case and stay within the guidance provided in the Court of Appeal’s ruling.
Two things should be apparent from the arguably aggressive decision by the Superior Court and the thorough guidance in the subsequent ruling of the Court of Appeal. First, courts are frustrated with counsel whom they believe may use the editing process to influence expert reports in favour of their client. They have now demonstrated that they are prepared to act aggressively to sanction any perceived collusion. Secondly, the Court of Appeal has been careful to provide clear guidance to both counsel and experts as to their responsibilities regarding expert testimony. This guidance provides a standard that courts, tribunals, and professional disciplinary bodies, can use to asses the conduct of counsel and the professionals they engage as expert witnesses.
Counsel and expert witnesses should now be fully alert to the possibility of court sanctions and to the danger of subsequent disciplinary action by their professional regulators should their conduct step outside the boundaries set by the Court of Appeal.
In Moore, the Superior Court concluded at para 50 that “…counsel’s prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable.” Moreover, at para 52, the court stated: “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.”
That decision gave rise to extensive concern among the litigation bar and among experts who testify at trials or before tribunals. Many felt strongly that appropriate consultation between counsel and expert is essential to ensure that expert witness reports comply with the Rules and the expert’s common law duties. It has also been argued that effective communication between counsel and experts helps experts understand the legal concepts at issue so they might better assist the court to integrate complex expert evidence.
On appeal, the Holland Access to Justice in Medical Malpractice Group argued that the ruling impaired “normal, reasonable and prudent litigation practices, would substantially increase the cost of litigation, would do a disservice to the Court in terms of hearing fulsome, well-organized, and appropriate evidence, and ultimately result in a chilling and significantly restrictive effect on access to justice.” The Canadian Defence Lawyers’ association asserted the ruling was “unprecedented, unsupported in law and seriously flawed”. The Advocates’ Society presented the court with its Principles Governing Communications with Testifying Experts (Toronto: The Advocates’ Society, June 2014) and a Position Paper on Communication with Testifying Experts (Toronto: The Advocates’ Society, June 2014).
Each of the six interveners permitted at the Court of Appeal challenged the Superior Court judgment as simply wrong. The Court of Appeal agreed, finding at para 49 that “if accepted, the trial judge’s decision would represent a major change in practice. It is widely accepted that consultation between counsel and expert witnesses … is necessary to ensure the efficient and orderly presentation of expert evidence and the timely, affordable and just resolution of claims.”
Courts have long emphasized the necessity for experts to testify independently and objectively, and have cautioned expert witnesses against acting, or appearing to act, as advocates for the parties that retain them. The correct role of an expert is always to fairly and impartially assist courts and tribunals with matters that fall within their areas of expertise.
In setting out the common law duties of expert witnesses, the Court of Appeal cited National Justice Compania Naviera S.A. v. Prudential Assurance Co. Ltd. (“The Ikarian Reefer”),  2 Lloyd’s Rep. 68, at p. 81 (Eng. Q.B. Comm.):
- Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation [citation omitted].
- An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise [citation omitted]. An expert witness… should never assume the role of an advocate.
For further guidance, the Court of Appeal at para 57 endorsed the Advocates’ Society submission: “I attach as an Appendix to these reasons The Advocates’ Society’s Principles Governing Communications with Testifying Experts, which provides a thorough and thoughtful statement of the professional standards pertaining to the preparation of expert witnesses.” These principles are available on line at: http://www.advocates.ca/assets/files/pdf/The_Advocates_Society-Principles_Governing_Communications_with_Testifying_Experts_3_sep18.pdf
If it was ever unclear, there should no longer be any uncertainty that expert testimony must be scrupulously unbiased and of service to the court. Further, counsel and expert witnesses wishing to avoid sanction would be prudent to measure both their retainer and subsequent conduct against the standards set out in the Advocates’ Society’s Principles Governing Communications with Testifying Experts.
* * This article is intended only to inform and educate. It is not legal advice. Be sure to contact a lawyer to obtain legal advice on any specific matter.