Experts In The East: Whether Moore v Getahun Might Affect Disclosure Of Draft Expert Reports In Nova Scotia

Introduction

The Ontario Court of Appeal's recent decision in Moore v Getahun, 2015 ONCA 55 did two key things: First, it confirmed that consultation between counsel and experts about draft reports is appropriate – leading many practitioners to breathe a sigh of relief.1 Second, Moore considered whether and when consultations between counsel and experts must be produced,2 taking a relatively restrictive approach to disclosure. It is this aspect of Moore, in particular, that may clash with the existing case law and the practice of more liberal disclosure in Nova Scotia.

Moore holds that consultation between lawyers and experts is appropriate

The expert in Moore was a retired orthopedic surgeon, who opined that the appellant/defendant surgeon had properly used a full circumferential cast to treat the respondent/plaintiff's broken wrist and had therefore not breached the standard of care.3 It came up on cross-examination that the expert had spoken with counsel before finalizing his report, in a 90-minute conference call.4 The expert made no substantive changes in the report after conversing with counsel.5

Nevertheless, the trial judge was very critical of this consultation, and her comments caused no shortage of concern amongst civil litigators across Canada.6

The Court of Appeal's unanimous decision should alleviate this concern. The trial judge's criticism was misguided and wrong, according to Justice Sharpe. He remarked:

[62] I agree with the submissions of the appellant and the interveners that it would be bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports. Just as lawyers and judges need the input of experts, so too do expert witnesses 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.

In Ontario, communications about drafts are presumptively privileged and not subject to disclosure

The next issue for the Court in Moore was "the extent to which consultations between counsel and expert witnesses need to be documented and disclosed to an opposing party."7 Rule 53.01(2.1) of the Ontario Rules of Civil Procedure requires the expert to set out in her report the "instructions provided to the expert in relation to the proceeding"8 and other "foundational information" for the opinion.9

But communications between counsel and experts during the drafting process can go beyond these areas. Assuming the expert is submitting a report and testifying at trial,10 when do draft reports and communications with counsel have to be disclosed to the other side?

The answer is: Rarely. Consultations about draft reports are presumptively privileged, at least in Ontario.

As Justice Sharpe explained: "The starting point for analysis is that such consultations attract the protection of litigation privilege."11 These consultations fall within the "zone of privacy" that the Supreme Court discussed in Blank v Canada (Minister of Justice), 2006 SCC 39, [2006] 2 SCR 319:

[69] In Blank, the court noted, at para. 34, that litigation privilege creates "a 'zone of privacy' in relation to pending or apprehended litigation." The careful and thorough preparation of a case for trial requires an umbrella of protection that allows...