Co-authored by: Julia Boddy, Student-at-Law
Among civil litigators, 2015 was the "year of the
expert," with multiple decisions from the appellate courts on
various issues related to expert evidence. Over the last two years,
lower courts have been applying the principles articulated in 2015
so that we can now look back on how the seminal decisions have
affected litigation practices.
I would first like to look at how trial courts and tribunals are
applying the rules surrounding production of an expert's
working file, as opined in Moore v. Getahun 2015 ONCA
55.
High bar for disclosure of communications with experts
The Moore v. Getahun decision in 2015 clarified when an
expert's working file will be produced. The starting point is
that "the file," i.e.: non-foundational documents that
contain communications between the expert and counsel, is subject
to litigation privilege. However, litigation privilege is not
absolute. Where an opposing party can show "reasonable
