"Is Too Much Communication A Bad Thing?" The Perils Of Correspondence With Experts In Civil Cases

In the recent Ontario Superior Court case of Moore v. Getahun, 2014 ONSC 237 ("Moore") the Court answered yes to this question and took a very restrictive approach to communications between counsel and experts.  Almost all civil litigators across the spectrum of cases deal with experts. Experts can play a significant, if not pivotal role in civil proceedings.  As someone with special knowledge, training or skill, the role of an expert is to assist the judge in areas that are beyond his or her scope of knowledge.  As set out in Rule 11-2 of the Court Civil Rules an expert had a duty to assist the court and not to be an advocate for any party.  The fact an expert's duty to be impartial has been codified in the BC Rules of Court underscores the importance of an expert being impartial.  A finding that an expert is not impartial and is acting as an advocate can result in the exclusion of an expert's report or it may go to weight.