EXPERT EVIDENCE
APPELLATE COURT RULINGS in 2015 provided much-needed clarification regarding
the admissibility of expert evidence in Canadian civil trials. One important decision restored the
validity of traditional pre-trial communications between litigants and their expert witnesses; a sec-
ond one offered new guidance on when allegations of bias are sufficient to exclude expert evidence;
and a third reinforced the discretion of trial judges over which expert evidence is admissible.
Moore v. Getahun
In January 2015, the Ontario Court of Appeal ruled unanimously in Moore v. Getahun that allow-
ing lawyers and experts to discuss the contents of expert reports while they're being written is in
the best interest of justice. The court ruled that there was no impropriety in having counsel review
draft reports with experts, and that such reports are immune from production unless there is a
reasonable basis to suspect that counsel improperly influenced the expert.
The ruling upheld the lower-court verdict in a medical malpractice trial that turned on expert
testimony. It emerged at trial, however, that one of the defendants' experts had altered his report
following suggestions by defense counsel during a 90-minute conversation.
In the trial decision, Justice Janet Wilson of Ontario's Superior Court criticized the tradition of
litigators communicating with experts during the preparation of their reports, which she found to
undermine the "expert's credibility and neutrality." The decision finds that "counsel's prior practice
of reviewing draft reports should stop," and that "discussions or meetings between counsel and an
expert to review and shape a draft report are no longer acceptable."
Justice Wilson's comments alarmed the litigation Bar throughout Canada. For a brief period,
many litigators hesitated to talk to their expert witnesses as they prepared their reports "for fear
that, if that came out at trial, the report would be disallowed," says Paul Pape, of Pape Barristers
Several recent Canadian
decisions clarify issues
around admissibility
of expert evidence,
perceived conflict of
interest and whether
counsel can review draft
reports prior to trial
by Sheldon Gordon
10 | LEXPERT • December 2016 | www.lexpert.ca
PHOTO:
SHUTTERSTOCK
ADMISSIBILITY
AND PERCEIVED
CONFLICT
