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Newsletter > February 2014

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In this issue: 1.         Firm and Industry News 2.         S.C.C. Clarifies Law of “Unlawful Means” Tort 3.         Expert Reports Update 4.         And finally,

The three masted schooner Empire Sandy at the Harbour Front in Toronto for the January 2017 newsletter.

1. Firm and Industry News

  • Gordon Hearn will be giving a presentation at the Transportation & Logistics Council Annual Meeting in Nashville, Tennessee on March 17, 2014 on “International Carriage of Goods Regimes and Related Risks and Liabilities”.
  • Rui Fernandes will be giving a presentation to the Canadian Trucking Alliance meeting in Scottsdale Arizona on March 24th 2014 on “Shipper-Carrier Contracts- Tracking Trends & Deciphering the Fine Print”
  • Chella Turnbull, a 1989 call to the Ontario bar has joined the firm as an associate.
  • Gjergji Vani, a 2008 call to the Ontario bar has joined the firm as an associate.  


2. S.C.C. Clarifies Law of “Unlawful Means” Tort

On January 31st the Supreme Court of Canada released its reasons in A.I. Enterprises Ltd. v. Bram Enterprises Ltd. 2014 S.C.C. 12 and clarified the law in relation to the tort of unlawful interference with economic relations. This tort has also been referred to as “interference with a trade or business by unlawful means”, “intentional interference with economic relations”, “causing loss by unlawful means” or simply as the “unlawful means” tort. The case involved a lawsuit by a majority shareholder against a minority shareholder for the tort of unlawful means from the sale of a building owned by the corporation owned by the shareholders. While the property was listed for sale the minority shareholder attempted to invoke an arbitration process under a syndication agreement, filed encumbrances against the property, and denied entry to the property to prospective buyers.  Potential sales to third party purchasers failed, and the minority shareholder ultimately bought the building for an alleged lower value. The majority shareholder brought an action against the minority shareholder for causing a loss by unlawful means and for breach of fiduciary duty by the minority director. The trial judge found that the minority shareholder’s conduct amounted to interference by unlawful means and awarded damages reflecting the difference between the sale price paid by the minority shareholder and the price that could have been obtained from a third party. A second basis for the finding was the breach of the fiduciary duty of the director. The Court of Appeal dismissed the minority shareholder’s appeal. The Court of Appeal decision did not uphold the judge’s reason on the unlawful means tort but upheld the trial judge on the basis of a principled exception to the rule of the unlawful means tort and on the breach of fiduciary duty. The Supreme Court of Canada dismissed the appeal by the minority shareholder and, in so doing, clarified the law in this area. The Supreme Court of Canada held that the two core components of the unlawful means tort are: (1) the defendant must use unlawful means; and (2) the defendant must intend to harm the plaintiff through the use of the unlawful means. The Court held that the tort should be kept within narrow bounds. It will be available in three‑party situations in which the defendant commits an unlawful act against a third party and that act intentionally causes economic harm to the plaintiff. Conduct is unlawful if it would be actionable by the third party or would have been actionable if the third party had suffered loss as a result of it. The Court found as a fact that the minority shareholder had not committed an unlawful act. Justice Cromwell used a very old marine case to describe this particular tort, stating, at paragraph 24:
The defendant, the master of a trading ship, fired its cannons at a canoe that was attempting to trade with its competitor, the plaintiffs’ trading ship, in order to prevent it from doing so. The defendant was held liable, Lord Kenyon being of the opinion that these facts supported an action:  Tarleton v. M’Gawley (1793), Peake 270, 170 E.R. 153. The plaintiffs were able to recover damages for the economic injury resulting from the defendant’s wrongful conduct toward third parties (the occupants of the canoe) which had been committed with the intention of inflicting economic injury on the plaintiffs.
Justice Cromwell outlined the reasons that the tort should be kept within narrow bounds: 1. The tort must be understood in the historical context of regulating economic and competitive activity; 2.  The common law accords less protection to purely economic interests; 3. The common law is reluctant to develop rules to enforce fair competition; 4.  The common law is concerned not to undermine certainty in commercial affairs; and 5.  The history of the common law shows that tort liability, if unduly expanded, may undermine fundamental rights. The rationale underlying the unlawful means tort is the “liability stretching” rationale, which focuses on extending an existing right to sue from the immediate victim of the unlawful act to another party whom the defendant intended to target with the unlawful conduct. Justice Cromwell, added at paragraph 43 that “the liability stretching rationale sees the tort as extending civil liability without creating new actionable wrongs. It thereby closes a perceived liability gap where the wrongdoer’s acts in relation to a third party, which are in breach of established legal obligations to that third party, intentionally target the injured plaintiff.” The Court then reviewed the law in various common law jurisdictions and concluded that the trend of authority is towards a narrow definition of “unlawful means.” Justice Cromwell added, at paragraph 74:
Restricting unlawful means to acts that would give rise to civil liability to the third party (or would do so if the third party suffered loss from them) provides a coherent and rational basis for the development of the unlawful means tort. The limitation of unlawful means to actionable civil wrongs provides certainty and predictability in this area of the law, since it does not expand the types of conduct for which a defendant may be held liable but merely adds another plaintiff who may recover if intentionally harmed as a result of that conduct. While details relating to the scope of what is “actionable” may need to be worked out in the future.
The Court agreed with the Court of Appeal that there was no wrong that would be actionable by the third party (the prospective purchasers) against the minority shareholder. Accordingly, the minority shareholder could not be found liable to the majority shareholder of the corporation on the basis of the unlawful means tort. However, the Court found that the breaches of fiduciary duty were precisely the same acts which the trial judge found to constitute the unlawful means for the purposes of the unlawful means tort. The breaches of fiduciary duty resulted in the minority shareholder purchasing the property.  The trial judge found as a fact that, but for the minority shareholder’s conduct, the building would have been sold to a third party for $2.58 million (instead of the price paid of $2.2 million). Whether the compensation is viewed as being aimed at restoring the majority shareholder’s loss or requiring the minority shareholder’s to disgorge the gain obtained by the breach of fiduciary duty, the assessment of compensation remained the same hence the dismissal of the appeal, albeit providing a clarification of the law of unlawful means. Since the decision was rendered on January 31st, 2014, it was referred to in a February 5th, 2014 decision of the Nova Scotia Court of Appeal in Geophysical Service Inc. v. Canada (Attorney General), 2014 NSCA 14. Geophysical Service Incorporated brought a claim against Her Majesty the Queen in right of Canada, as represented by the Attorney General of Canada.  It alleged that through the actions of several government departments, the Federal Crown had committed the tort of unlawful inference with economic relations against it.  According to its Statement of Claim, Geophysical was the owner and operator of the only Canadian flagged ship equipped and available to perform seaborne seismic surveys at the relevant times.  A government contract for such survey work in Canadian waters was awarded to Fugro-Jacques Geophysical Inc. which only had a foreign flagged ship.  According to the Geophysical Service Inc., the contract was unlawfully amended to avoid requirements in the Coasting Trade Act which would have been to its benefit. The only issue before the trial judge was the failure of the claimant to plead a relationship between it and the third party. The trial judge struck the claim on this basis. The Court of Appeal reiterated the Supreme Court of Canada decision a week earlier stating that the law had been clarified and that a statement of claim no longer had to have a pleading that there was a relationship between the claimant and the third party. The Court of Appeal restored the Statement of Claim but cautioned, at paragraph 12:
Our disposition of this appeal is not to be taken as in any way suggesting that its pleadings have a reasonable chance of success; we were not required and did not address that matter.  The appellant indicated that it may seek instructions regarding amendments to that pleading in the court below.  It is aware that the respondent may challenge any such attempt.  These of course are matters for the parties to address in the court below.
It will be interesting to watch the case law develop relating to the scope of what is “actionable”, which the Supreme Court of Canada stated at paragraph 74 “may need to be worked out in the future”. Rui Fernandes


3. Experts Update: Counsel’s Review of Draft Reports Held Improper Moore v. Getahun 2014 ONSC 237

On January 14, 2014, Madam Justice Wilson of the Ontario Superior Court in her Judgment in Moore v. Getahun 2014 ONSC 237 held that the duty of the expert to the court is so fundamentally neutral and unbiased that counsel’s review of draft reports is improper. The Duty of the Expert The Supreme Court of Canada is R. v. Mohan (SCC 1994) confirmed that, in order to introduce expert evidence, the evidence must be logically relevant, reliable, necessary and must not be subject to an “exclusionary rule” against its admission. Ultimately, the trial judge will decide whether the expert’s evidence is “sufficiently beneficial” to the trial process. It used to be that “plaintiff’s side” experts and “defence experts” would be hired and it was generally accepted that experts would give testimony for one side or the other. The Rules of Civil Procedure, R.R.O. 1990, Reg. 194.,nowstate:             Duty of Expert
4.1.01  (1)  It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,
(a) to provide opinion evidence that is fair, objective and non-partisan; (b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and (c) to provide such additional assistance as the court may reasonably require to determine a matter in issue. O. Reg. 438/08, s. 8.            
Duty Prevails
(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged. O. Reg. 438/08, s. 8.
Experts’ Reports 53.03      (1)  A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference required under Rule 50, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). O. Reg. 438/08, s. 48.
(2)  A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). O. Reg. 438/08, s. 48. (2.1)  A report provided for the purposes of subrule (1) or (2) shall contain the following information:
1. The expert’s name, address and area of expertise. 2. The expert’s qualifications and employment and educational experiences in his or her area of expertise. 3. The instructions provided to the expert in relation to the proceeding. 4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates. 5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range. 6. The expert’s reasons for his or her opinion, including, i. a description of the factual assumptions on which the opinion is based, ii. a description of any research conducted by the expert that led him or her to form the opinion, and iii. a list of every document, if any, relied on by the expert in forming the opinion. 7. An acknowledgement of expert’s duty (Form 53) signed by the expert. O. Reg. 438/08, s. 48.
The expert’s ultimate duty is to the court. The expert completes the “acknowledgment of duty” form, which acknowledges the duty in Rule 4.1.01 above. Moore v. Getahun 2014 ONSC 237 The issues in this medical malpractice case centred around standard of care and causation, which are not the focus of this article. Experts were presented from both sides and all parties agreed that the experts were properly qualified and the Court accepted them as such. Part of the court’s analysis of the experts’ testimony involved a consideration of comparative credibility and reliability. The practice in Ontario, as in other provinces, has always been that counsel could review draft reports for a variety of reasons from ensuring that facts are properly understood and conveyed to grammar and punctuation. The case reviewed herein involved more than a “cosmetic” review and the court took the opportunity to speak to the Bar directly. Wilson J. reviewed expert testimony and the associated requirements. Her Honour’s comments here may have far reaching effect and one wonders if Rule 53.03 was meant to be taken so far. Facts The plaintiff was involved in a single vehicle motorcycle accident, broke his wrist and went to the emergency department of Scarborough General Hospital. A closed reduction was performed and a closed cast applied.  After a second set of x-rays, it was determined that a facet was misaligned and the defendant doctor recommended bone graft surgery which would take part of the plaintiff’s hipbone to replace the problem bone in the wrist.  The plaintiff and his father wanted a second opinion given the defendant doctor’s youth and inexperience.  The plaintiff experienced pain after the cast was applied and was told that it was normal for several days after such an injury. There was no discussion of compartment syndrome, which involves poor circulation and possible limb loss. He was given a pamphlet and no other information. The plaintiff then went to a different hospital, compartment syndrome was diagnosed, the cast was removed and emergency surgery was undertaken. The plaintiff had permanent damage including scarring and reduced range of motion in his wrist. Damages were agreed upon and the only remaining issue was the defendant doctor’s liability in his application of a full circumferential cast to the plaintiff’s injury. The Trial Judge’s Decision This decision not only dealt with the medical malpractice claims (*2) but also with several evidentiary issues concerning the admissibility of expert evidence under Rule 53.03, above. These included the following: (1)        Can the expert report of a deceased treating doctor be admitted into evidence for its truth? Wilson J. found that the contents of reports outlining the facts and observations are admissible for their truth where the doctor has died before trial; however, the doctor’s opinions on negligence and causation expressed in his reports were not admissible for their truth, as necessity had not been met. The doctor was not available for cross-examination and the plaintiff had another qualified expert available to testify on negligence and causation. (2)        What are the limits of the admissibility of evidence of treating emergency room physicians? Can they express opinion evidence? Wilson J. noted that there has been considerable commentary over the amended Rule 53.03 and the appropriate scope of treating physician evidence as distinct from expert evidence and general fact evidence. Her Honour considered the case law. In Burgess v. Wu 2003 CanLII 6385 (ON SC), (2003), 68 O.R. (3d) 710 at paragraph 80, the court distinguished between treatment opinions and litigation opinions, stating that treating physicians provide treatment opinions, which include the diagnosis, treatment plan, and prognosis made at the time of treatment whereas experts provide litigation opinions, which “usually involve a consideration of much more information from various sources and are formed for the purpose of assisting the court at trial”. In Beasley v. Barrand, 2010 101 O.R. (3d) 452 (S.C.), a personal injury case, three Accident Benefits Assessors retained by an insurer and not by either party were experts tendered as experts; however, their reports were not in compliance with Rule 53.03 and so their “opinion” evidence was held inadmissible. In McNeil v. Filthaut, 2011 ONSC 2165 (CanLII), [2011] O.J. No. 1863, the trial judge found that Rule 53.03 as read in conjunction with Rule 4.1.01, both above, meant that both rules applied only to experts engaged by or on behalf of a party. Since treating physicians are not engaged on behalf of a party, they are not subject to Rule 53.03 requirements. In Westerhof v. Gee Estate, 2013 ONSC 2093, the Divisional Court on appeal expressly adopted Beasley and rejected Filthaut, above, stating, at paragraph 21, that the important distinction was not the witness’ role or involvement, but rather the type of evidence to be admitted. If a party seeks to admit “opinion evidence, compliance with rule 53.03 is required; if it is factual, it is not.” Accordingly, there is now, after Westerhof, uncertainty about the appropriate scope of a treating physician’s testimony, requiring clarification from a higher court on the issues of whether the application of Rule 53.03 is based on the nature of the individual and relationship to the litigation or the nature of the evidence. Also, Justice Wilson queried whether clarification is needed on whether a legal distinction remains between a “treatment opinion” and a “litigation opinion,” and if so, is a “treatment opinion” for fact evidence and a “litigation opinion” one of opinion evidence? Should the treating physician be able to offer an opinion for the truth of their contents when based on their own expertise and observations? Wilson J. found that a treating physician who did not provide a report pursuant to Rule 53.03 could not provide an opinion at trial on the ultimate issue of causation and standard of care. (3)        Is it appropriate under Rule 53.03 for counsel to review draft reports of experts and provide input to the expert such that the expert changes his or her report? In the case under review, an expert doctor, called by the defence, filed a report and then a supplemental report. Once in the witness box, it is to be noted that the expert’s file including all notes and drafts are produced to the opposing side. Upon review, notes of a conversation between defence counsel and the expert doctor were located by and indicated that defence counsel had reviewed the expert doctor’s draft report and then suggested changes. The expert doctor confirmed to the court that he had sent his draft report to counsel for comments. The expert doctor, though testifying he was happy with his draft report, made the corrections over the phone after “suggestions” were made by defence counsel. The plaintiff’s counsel submitted that such “suggestions” were inappropriate and were intended to “shape” the expert doctor’s report. The defence counsel argued that experts were permitted to share their drafts with counsel for comment and discussion. At paragraph 293, Wilson J concluded:
 …the meeting between defence counsel and Dr. Taylor involved more than simply superficial, cosmetic changes. The conversation took place over a period of one and a half hours. Some content helpful to the plaintiff in the August 27, 2013 draft report was deleted or modified. I find that Dr. Taylor’s opinion, although not changed, was certainly shaped by defence counsel’s suggestions.
Wilson J. held that Rule 53.03’s purpose is to ensure the independence and integrity of the expert witness, whose primary duty is to assist the court. Such discussions, Her Honour found, with counsel are improper and undermine both the purpose of Rule 53.03 as well as the expert’s credibility and neutrality. Recognizing that there may have been a practice where counsel would meet with experts to review and shape expert’s reports and opinions, Wilson J. stated that the changes in Rule 53.03 preclude such meetings in order to (1) avoid perceptions of bias or actual bias; (2) to avoid putting counsel in a position of conflict as a potential witness; and (3) to avoid undermining the independence of the expert. At paragraph 50, Wilson J. stated:
[50] In light of this change in the role of the expert witness, I conclude that counsel’s prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable. [51]  If after submitting the final expert report, counsel believes that there is need for clarification or amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel.
Further, Wilson J. rejected the suggestion in Flinn v. McFarland, 2002 NSSC 272, 211 N.S.R. (2d) 201, that discussions between experts and counsel regarding the content of a draft report merely go to the weight accorded to the report. The trial judge noted, in any event, that the court in Flinn had ruled that the defence counsel was entitled to determine whether the plaintiff’s lawyer had influenced his own expert’s opinion, as this would affect the weight of the opinion and had, in fact, ordered production of the working draft report. Wilson J. went on to state that, if counsel seeks clarification or amplification after receipt of an expert’s final report, all communication should be in writing, and that communication should be disclosed to the opposing party. There should, according to Wilson J., 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. Wilson J. further stated at paragraph 286, that counsel were responsible for advising experts of their role and proper conduct in this regard. (*2) (4)        Whether expert witnesses should be limited in their evidence to the contents of their reports, or whether they can be questioned as to the facts in the case to test their opinions. Rule 53.03(3) provides as follows:
An expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set out in
(a)   a report served under this rule; or (b)   a supplementary report served on every other party to the action not less than 30 days before the commencement of the trial. [Emphasis added by Wilson J.]
Wilson J. noted that, prior to the amendments to Rule 53.03, the Court of Appeal interpreted the phrase “the substance” of his or her testimony under the old rule. In Thorogood v. Bowden (1978), 21 O.R. (2d) 385 (C.A.), the expert’s report indicated that the subject injuries would manifest in more intensive symptoms later in the plaintiff’s life. At trial, the expert testified about the possibility of arthritis and an artificial hip. The defendant on appeal argued that the expert had raised matters outside the substance of his report. The Court of Appeal disagreed and stated at p. 386 therein:
We interpret the law with respect to medical reports to be that a medical expert is not to be narrowly confined and limited to the precise contents of his report, but he has a right to explain and amplify. What was done here … was to expand on what was latent in the medical report, and it did not open a new field. [Emphasis added at source]
Wilson J. further referred to Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97, wherein the Court of Appeal stated at para. 38:
[W]hile testifying, an expert may explain and amplify what is in his or her report but only on matters that are “latent in” or “touched on” by the report. An expert may not testify about matters that open up a new field not mentioned in the report. The trial judge must be afforded a certain amount of discretion in applying rule 53.03 with a view to ensuring that a party is not unfairly taken by surprise by expert evidence on a point that would not have been anticipated from a reading of an expert’s report. [Emphasis added at source.]
After the amendments to the rule, Marchand was applied in numerous cases. Wilson J. stated at paragraph 67,
Inevitably, a report is a summary, and cannot be a complete rendition of all of the evidence.
And then at paragraph 69, Wilson J. espoused a more liberal approach, In my view, the meaning of “substance of the report,” “latent in a report,” or “touched upon” must be interpreted in a robust, practical fashion to ensure the trier of fact has the full benefit of the expert’s opinion, without raising completely unrelated, new issues that would take the opposing party by surprise. Certainly the facts as they evolve in a trial both agreed to or in dispute should be presented to the expert witnesses, whether or not they were specifically referred to by the expert in his or her report. If the factual underpinnings of the expert opinion are not born out in the evidence, the validity of the expert opinion is weakened or nullified. [Emphasis added] 5.         Should an expert’s evidence-in-chief include his or her written reports? The practice has been that the expert’s report is filed with the court to be of assistance to the trier of fact, but is not entered as evidence of the expert gives evidence at trial. This was true before Wilson J. as well. Wilson J. considered the merits of entering experts’ reports as evidence even where the expert testifies:
The oral evidence was not necessarily as clear or complete as the written reports, making my task to fairly summarize the expert evidence challenging. Does the common law rule, that an expert has the option of filing his report or testifying at the trial, continue after the amendments to the Rules of Civil Procedure? Should experts be allowed to prepare affidavits affirming their reports so the report can be admitted as evidence to both streamline trial process and assist the trier of fact in understanding and assessing the evidence? Are there different considerations in judge alone trials and jury trials? If there are differences or omissions between the expert report and the expert evidence, how are the differences or omissions to be treated?
Wilson J. concluded with her opinion that the restriction of filing the reports as truth of their contents dilutes the intended effect of Rule 53.03, which is to ensure that expert opinions are clearly and neutrally presented to the trier of fact. At paragraph 525, Wilson J. stated:
I conclude that the common law rule, that an expert has the option of filing his report or testifying at the trial, does not make practical sense after the amendments to Rule 53.03 of the Rules of Civil Procedure. I suggest that experts should be entitled to rely upon their written reports as part of their evidence-in-chief. This approach would both streamline the trial process and assist the trier of fact in understanding and assessing expert evidence. This is a matter for a higher court, or the Civil Rules Committee.
Wilson J. confirmed that she considered only the oral testimony of the expert witnesses for its truth but, where there was a conflict between the evidence at trial and the contents of the expert report, or if there were omissions in the expert report compared to the evidence given at trial, she concluded that the contents of the expert’s report were admissible and relevant to assess the reliability and credibility of the expert’s opinion. (*4) The Qualifications of the Experts and Findings of Credibility Wilson J. went on to canvass the associated legal principles noting that in R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 75, the Court of Appeal provided four criteria for the admissibility of expert opinion evidence: (i) a properly qualified expert, (ii) absence of any exclusionary rule, (iii) relevance, and (iv) necessity in assisting the trier of fact. An expert is duly qualified per the list outlined, for example, in Dulong v. Merril Lynch Canada Inc. (2006), 80 O.R. (3d) 378 (S.C.), at para. 21 therein. This list of factors is helpful to determine if an expert is properly qualified and relates to comparative reliability and credibility:
•         Professional qualifications •         Actual experience •         Participation or membership in professional associations •         The nature and extent of publications •         Involvement in teaching •         Involvement in courses or conferences in the field and efforts to keep current with the literature •         Previous qualification as an expert in the area
Wilson J. reviewed the qualification of the experts before her and noted for the future litigants and counsel further questions to be considered which assist judges in their assessment of expert witnesses’ comparative reliability and credibility, at paragraph 255:
•     Is the witness fair and impartial in the report presented and in the evidence given? •      Is the expert’s report and oral evidence consistent? •      Is the expert’s opinion clearly set out in the report, including the facts and documents underpinning the opinion? •      Do the conclusions logically flow from the facts? •      Are alternative theories canvassed? •      Does the expert make concessions in the report where appropriate that may not be helpful to the party who retains him or her? •      Are the facts relied upon by the expert confirmed in the evidence at trial? •      Does the expert make reasonable concessions in his or her viva voce evidence if the facts are not as he or she assumed them to be? •      Does the witness provide balanced evidence that is neutral, or is he or she dogmatic and fixed in his or her opinion? •      Does it appear that the witness aligned with one party’s position, assuming the role of an advocate, rather than act as a neutral witness with a duty to the court? •      Is there an appearance of bias, or is there evidence of actual bias?
Finally It would appear that Rule 53.03 has now been interpreted to ensure that the Ontario experts are now almost completely independent and seemingly reporting to the court. One wonders if Rule 53.03 was truly meant to impact on our adversarial system in this way making the experts no longer part of either party’s case. Counsel would seem now to be unable to ensure that the expert understands his or her mandate or has reasonably expressed it in his or her report.  The expert’s understanding of the facts may be wrong or may consider facts not in evidence without a draft review. The expert may now be free to wander into areas that are not within his or her expertise. While not specifically mentioned in the case, one expects that verbal discussion of any draft conclusions might also be forbidden.  Providing an updated report or supplementary report to amplify or clarify any issues in the original “neutral” report, just doesn’t work without potentially making the expert appear to be less than “expert”. Kim E. Stoll Endnotes (*1) See Form 52.5 for the Federal Court Rules. (*2) Wilson J. found that the plaintiff had met the case on causation (*3) For interest sake, Wilson J. did not prefer the evidence of the expert doctor who had made changes to his report. (*4) With respect, it would appear that such differences should be in the purview of counsel in cross-examination. Until now, oral testimony of the expert witness was the only “opinion” to be considered, if proffered. No doubt, however, the reality might be that any reports so “filed” to “aid” the trier of fact might have unofficially been so scrutinized and evaluated in that regard in any event.  

4. And Finally,

It would appear that Rule 53.03 has now been interpreted to ensure that the Ontario experts are now almost completely independent and seemingly reporting to the court. One wonders if Rule 53.03 was truly meant to impact on our adversarial system in this way making the experts no longer part of either party’s case. Counsel would seem now to be unable to ensure that the expert understands his or her mandate or has reasonably expressed it in his or her report. The expert’s understanding of the facts may be wrong or may consider facts not in evidence without a drak review. The expert may now be free to wander into areas that are not within his or her expertise. While not specifically mentioned in the case, one expects that verbal discussion of any drak conclusions might also be forbidden. Providing an updated report or supplementary report to amplify or clarify any issues in the original “neutral” report, just doesn’t work without potentially making the expert appear to be less than “expert”.

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