On January 29, 2015, the Ontario Court of Appeal released a long awaited decision clarifying the law surrounding expert reports after various controversial rulings were made by the trial judge in Moore v. Getahun. Although the appeal was dismissed, the Court of Appeal took the opportunity to confirm the following principles:
1) That the practice of counsel reviewing draft reports was appropriate to ensure that the expert witness understands the duties to court, rules of evidence, and rules of procedure; legal burden of proof and scientific certainty; etc.
2) That absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, a party should not be allowed to demand production of draft reports or notes of consultation between counsel and expert;
3) That where an expert’s viva voce evidence contradicts his report, and the report is not admitted into evidence, the contradiction could be used to cross-examine the expert. However, if counsel does not cross-examine the expert on that contradiction, it is improper for the trial judge to rely on the contradiction because the expert was not properly confronted and given an opportunity to explain.
We continue to await the Court of Appeal’s release of the companion appeal of Westerhoff v. Gee, which deals with treating doctors/providers opinions and whether they are required to comply with Rule 53.03.
Click here to read the decision: Ontario Court of Appeal decision – Moore v. Getahun (January 29, 2015)