Instructing Letter Does Not Have to be Produced in Advance of Examination

One issue that arises periodically in personal injury cases is whether a party must produce counsel's letter of instruction to its expert.  In Nikolakakos v. Hoque, 2015 ONSC 4738 (S.C.J.), Master Graham considered whether the defendant was required to produce the letter of instruction to the plaintiff in advance of the plaintiff attending an independent medical examination.

Master Graham held that the instructing letter does not have to be produced until the party elects to call the expert at trial.  Even after the report is served, the instructing letter does not have to be produced pending the defendant's decision whether to call the expert at trial.  As a result, the defendant did not have to produce the letter of instruction in advance of the independent medical examination.

Supreme Court Dismisses Westerhof Appeal

We previously blogged on Westerhof v. Gee, where the Court of Appeal held that non-party experts such as treating health practitioners may give opinion evidence formed in the course of treatment or based on observations formed outside of the litigation (such as accident benefits assessments).

The case was appealed to the Supreme Court of Canada.  On October 29, 2015, the Supreme Court dismissed the application for leave to appeal.  As a result, non-party experts will continue to be permitted to give opinion evidence without complying with r. 53.03, subject to the court's gatekeeper function.

The companion appeal in Baker v. McCallum was also dismissed.

Admissibility of Expert Evidence

The Supreme Court of Canada recently commented on the standards for admissibility of expert evidence.  Although the case originated out of Nova Scotia, it is equally applicable to Ontario and should be taken into account when retaining experts. 

In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 S.C.C. 23,  shareholders started an action against the company's former auditors after a different accounting firm (Grant Thornton) identified problems with the former auditors' work.  In response to the defendant's summary judgment motion, the plaintiffs hired a forensic accountant from Grant Thornton to prepare an opinion.  The motions judge struck out the forensic accountant's affidavit on the basis that she was not an impartial witness; the Court of Appeal allowed the appeal.

The Supreme Court of Canada dismissed the appeal.

The inquiry for determining the admissibility of expert evidence is divided into two steps.  First, the proponent of the evidence must establish the threshold requirements for admissibility (found in R. v. Mohan): relevance, necessity, absence of an exclusionary rule and a properly qualified expert.  Second, the judge must exercise a gatekeeper function and balance the potential risks and benefits of admitting the evidence to determine whether the potential benefits outweigh the risks. Concerns about an expert's independence or impartiality should be considered as part of the overall weighing of the costs and benefits of admitting the evidence.

Expert witnesses have a special duty to the court to provide fair, objective and non-partisan assistance. Underlying the duty are three concepts: impartiality, independence and absence of bias.  The expert's opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand.  It must be independent in that it is the product of the expert's independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation.  It must be unbiased in that it does not unfairly favour one party's position over another.

A proposed expert's independence and impartiality goes to admissibility and not simply to weight, and there is a threshold admissibility requirement in relation to this duty.  Once the threshold is met, remaining concerns about the expert's compliance with his or her duty should be considered as part of the overall cost-benefit analysis the judge conducts to carry out the gatekeeping role.

In the circumstances, the evidence should not have been excluded as there was no basis to conclude the expert was not able and willing to provide the court with fair, objective and non-partisan evidence.

Westerhof v. Gee - Expert Testimony

The much anticipated appeal decision in Westerhof v. Gee was released yesterday.  It can be found at 2015 ONCA 0206 (C.A.).  In Westerhof, the trial judge refused to let in evidence on history, diagnosis, and prognosis from medical practitioners who were treating practitioners or non-party experts.

The Court of Appeal overturned the Divisional Court decision, which held that the key factor in determining whether r. 53.03 applies is whether the evidence is fact or opinion.  Instead, the Court held:

[60]     Instead, I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where:

·        the opinion to be given is based on the witness’s observation of or participation in the events at issue; and

·        the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

Rule 53.03 does not apply to the opinion evidence of a non-party expert where that person has formed a relevant opinion based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation.  The court retains its gatekeeper function and may require compliance with r. 53.03 if the expert goes beyond the scope of opinion formed in the course of treatment or observation for purposes outside of the litigation.

Given the decision in Westerhof  it will now be permissible for treating practitioners and accident benefits assessors to testify without complying with r. 53.03.

Court of Appeal Releases Decision in Moore v. Getahun

The 2014 decision of Moore v. Getahun created quite a stir in Ontario's litigation bar when Justice Wilson held that it was improper for counsel to review and discuss draft reports with experts.  The Court of Appeal released its appeal of the decision January 29, 2015.  You can access the decision by clicking here.

The Court disagreed with the trial judge. There held there is nothing improper about "this longstanding practice."  Sharpe J.A. noted that the trial judge's decision is contrary to existing cases which say communication with the expert can actually help ensure an opinion is admissible, coherent and comprehensive.  There are safeguards built into the system: counsel cannot persuade an expert to change an opinion and it still needs to be objective.

Draft reports and notes of meetings and other communications are litigation privileged and do not have to be produced, absent a reasonable suspicion the expert was improperly influenced.  The foundational information used in formulating the opinion must still be produced.

This common sense decision will be welcomed by many on both the plaintiff and the defence side.

Counsel Should Not Review Draft Expert Reports

A recent trial decision held that counsel should not review draft expert reports.  In Moore v. Getahun, 2014 ONSC 237 (S.C.J.), the plaintiff brought an action against an emergency room physician for negligently applying a cast after he fractured his wrist.

At trial, there were a number of evidentiary issues with respect to expert evidence, including whether it is appropriate for counsel to review draft expert reports and provide input?

Justice Wilson held that it was not proper for counsel to review an expert’s draft report.  If there are changes to a report, there should be disclosure to the other party:

[520]      The purpose of Rule 53.03 of the Rules of Civil Procedure is to ensure the independence and integrity of the expert witness. The expert’s primary duty is to the court. In light of this change in the role of the expert witness under the new rule, I conclude that counsel’s practice of reviewing draft reports should stop. There should be full disclosure in writing of any changes to an expert’s final report as a result of counsel’s corrections, suggestions, or clarifications, to ensure transparency in the process and to ensure that the expert witness is neutral.

Counsel should review the Moore decision as it potentially has repercussions for the way that counsel interact with experts in the future.  One has to wonder whether the Rule Committee intended r. 53 to be interpreted so broadly.