Experts and the Courts

The Ontario Court of Appeal has just released its decision inMoore ats Getahun.  That was a case that dealt with some of the rights that lawyers had in dealing with experts and the obligations and duties of those experts.

This came about as a result of a ruling at trial of Madame Justice Wilson.

The facts briefly were that following a motorcycle accident, the Plaintiff was treated by the Defendant doctor and there were allegations that the doctor was negligent in providing that treatment.  There was a lawsuit brought against the doctor.

There were two issues that were raised at trial with respect to experts.  One was whether lawyers could discuss draft reports and have input with respect to the experts final report.  On that issue the Trial Judge held that it was improper for lawyers to assist an expert witness in the preparation of the expert’s report.

The second issue involved the use of the expert witness reports at trial.  The reports of the expert were not entered into evidence and the expert was called to give oral evidence at trial.  The expert reports were made available to the Judge as an aid. In assessing the credibility of the expert the Trial Judge took into account what she perceived to be contradictions between the experts’ oral evidence and written reports.

The court of appeal made the following ruling:

  1. The Trial Judge erred in holding that it was unacceptable for counsel to review and discuss the draft expert reports.  The court of appeal indicated that it was appropriate for counsel to communicate with their experts and also held that consultations between counsel an expert witnesses need not be documented or disclosed to the opposing party, unless there were grounds which might reasonably lead one to suspect the expert was communicated with in a manner likely to interfere with the expert’s duties of independence and objectivity.
  2. The Trial Judge erred in using the written expert reports that were never entered into evidence to contradict and discredit aspects of the oral evidence of the expert.

Interestingly, the Court of Appeal determined that these errors did not affect the outcome and upheld the Trial Judge’s Decision on liability.

This is a brief overview of the legislation, and is not intended to be relied on as legal advice.

Please contact Nigel G. Gilby for further information.
(519) 672-4131

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