A recent decision of the Ontario Superior Court of Justice may have major implications for how lawsuits will be decided by judges in the future. The decision limits the way counsel can interact with experts before trial. This, in turn, affects the evidence an expert can give at trial.

The only trial witnesses who can offer opinions are those the court considers “experts” on the relevant subject.  Few trials take place without the testimony of one or more expert witnesses.

What is a business worth? What is the likely prognosis for an injury? What could a property have fetched in the open market? What is the standard of care on a professional? These are all questions which litigation lawyers routinely ask “experts” to give opinions at a trial.

Experts are then cross-examined on their “expertise.” Most often, an expert is accepted as having the necessary expertise, and the court compares the relative expertise of experts on both sides together with their respective findings, opinions and conclusions in deciding which expert to rely on for whatever decision the court needs to make.

Experts cannot give evidence at trial unless a report has been tendered first setting out their findings, opinions and conclusions. They also have an overriding duty to be independent and unbiased and certify to the court that they meet these criteria as part of their reports.

Counsel’s role is not to interfere with an expert’s independent obligations. But it is common practice for experts to discuss their views with counsel before they finalize their reports. Often, before an expert’s report is finalized, counsel will review it with an eye to checking the expert’s underlying assumptions, proof-reading and fact checking. The experts are then left on their own to make any changes they feelare appropriate given their role of providing assistance to the court, independently and unbiased. Of course, courtsare interested in ensuring that the opinions expressed by the expert are the expert’s and not those of counsel.

It is hard to know whether this decision will in fact change future practice or whether it will be overturned on appeal.  Already, one commentator is saying that the decision is wrong. Nevertheless, if the decision ultimately stands and other trial judgesfollow it, it is possible that an expert’s report and evidence may be excluded altogether on the basis of lack of independence. This is a risk any lawyer or party will want to consider when getting ready for trial.

The entire ruling in Moore v. Getahunmay be read here on-line.

Allan Dick is a litigator at Sotos LLP and may be reached by phone at 416.977.0007 or by email at adjdick@sotosllp.com