12 | LEXPERT • December 2016 | www.lexpert.ca
EXPERT EVIDENCE
Professional Corp. in Toronto. (Pape represented the defendant
hospital and its doctors on the appeal.) Six groups representing
lawyers and experts sought intervenor status and made submis-
sions in the appeal.
On appeal, Justice Robert Sharpe, writing for the OCA, held
that Justice Wilson erred in finding it improper for counsel to
review and discuss reports with expert witnesses. He agreed with
the submissions of the appellant and the intervenors that it would
be "bad policy to disturb the well-established practice of counsel
meeting with expert witnesses to review draft reports. Just as law-
yers and judges need the input of experts, so too do expert wit-
nesses need the assistance of lawyers in framing their reports in a
way that is comprehensible and responsive to the pertinent legal
issues in a case."
"It is one of the most significant cases on admissibility of ex-
pert evidence in recent times," says Monique Jilesen, a partner at
Lenczner Slaght Royce Smith Griffin LLP in Toronto. "The de-
cision has provided counsel and experts with guidance on how to
conduct themselves, and allowed that relationship to progress in
a way that the evidence before courts will be better."
The appellate court's ruling also largely ended the practice of
litigators having to disclose draft reports of their experts to the
other side. These remain subject to litigation privilege. "It's not
an absolute rule," says Jilesen. "But opposing counsel can't just
ask for the draft report and get it. They must have some factual
basis for suggesting there's been improper conduct [around the
report]." (The only documents an expert witness is obligated to
produce are the foundational documents. These, for example,
may include financial statements or medical charts that the ex-
pert relied on to form their opinion.)
Jeff Pellarin, President of Pellarin Inc., a Toronto-based foren-
sic accountant and business evaluator who is frequently called
as an expert witness, says "there is some molding of the expert
opinion that occurs while the mandate unrolls; that happens, say,
50 per cent of the time." For example, he says, the plaintiff may
have a choice of two remedies to seek. "Sometimes counsel may
ask you to start calculating the amount of each remedy, and when
it becomes clear which yields the higher number, they'll tell you
to just do a report on that remedy, because they're not going to
pursue the other one."
Another area where collaboration is often needed is in showing
liability. That often requires input from counsel on what the legal
tests are, because intent may have to be established.
White Burgess
The Supreme Court of Canada (SCC) decision in White Burgess
Langille Inman v. Abbott and Haliburton Co. offered new guid-
ance on when allegations of bias are sufficient to exclude expert
evidence. The ruling clarifies the test for the admissibility of an
expert witness, holding that an expert may be qualified to give
expert evidence despite having a pre-existing relationship with
one or both litigants.
In White Burgess, the plaintiff shareholders sued their com-
pany's former auditors for professional negligence after retain-
ing a new accounting firm as auditor. The new auditor revealed
problems with the previous auditor's work, which had caused fi-
nancial losses. In response to the defendants' summary-judgment
motion, the plaintiffs filed an affidavit from a forensic account-
ing expert who was a partner in a different office of the same ac-
counting firm as the new auditors. The defendants argued that
the expert was not impartial and should be disqualified due to
this relationship.
The Nova Scotia Supreme Court ordered that the expert's af-
fidavit be excluded, finding that an expert "must be, and be seen
to be, independent and impartial." However, the Nova Scotia
Monique Jilesen Lenczner Slaght Royce Smith Griffin LLP
"[Moore v. Getahun] is one of the most significant cases
on admissibility of expert evidence in recent times. The decision
has provided counsel and experts with guidance on how to conduct
themselves, and allowed that relationship to progress in a way
that the evidence before courts will be better."
