Moore v. Getahun Revisted – Can We Talk?

In short, yes we can.

Recall that the original decision from the Ontario Superior Court of Justice states that "The practice of discussing draft reports with counsel is improper and undermines both the purpose of Rule 53.03 as well as the expert's credibility and neutrality." The primary concern the court was addressing was the perception that experts can, on occasion, become malleable; in essence, "hired guns".

In the much anticipated appeal of the decision just released by the Ontario Court of Appeal, Justice Sharpe writes "...banning undocumented discussions between counsel and expert witnesses or mandating disclosure of all written communications is unsupported...it would be bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports."¹