The Court of Appeal for Ontario in Moore v. Getahun clarified a number of critical points concerning expert reports/evidence in the context of a personal injury case. The Court stated that draft expert reports were acceptable along with undocumented communication between experts and an injured person’s lawyer.
The Court ruled that consultation between the lawyer and expert are necessary to ensure the efficient and orderly presentation of expert evidence. The Court refused to ban undocumented discussions between an expert and retaining lawyer.
After much confusion surrounding whether draft reports were permitted, the Court clarified that draft reports are appropriate. The Court supported counsel claiming privilege over draft reports and not disclosing same until and if privilege is waived, except in certain limited situations.
During an examination for discovery, the party must provide details of the substance of a draft report. If opposing counsel can show reasonable grounds establishing that the communication is likely to interfere with the expert’s duty to the Court, then the draft report may be ordered to be disclosed.
The Court of Appeal emphasized the importance of the Trial Judge basing his/her views on credibility on the oral evidence of the expert and not a comparison between the oral evidence and a report that may be provided to the court for reference purposes.
This decision shines a light on the relationship between lawyers and their experts in generating expert opinions. Fortunately, the Court exercised its wisdom by taking a practical approach to the relationship between experts and lawyers that best ensures an injured victim has access to the opinions required to prove their case.
For additional information concerning this decision or any related personal injury matter please contact Michael J. Henry at mjhenry@hshlawyers.com – 416-361-0889.
