Ontario Court Clarifies Law Around Preparing Expert Reports

On January 29, 2015, the Ontario Court of Appeal released its judgment in Moore v. Getahun,¹ a decision that provides important clarity regarding the preparation and use of expert reports in the context of civil actions. The decision holds that:

• The 2010 amendments to the Rules of Civil Procedure with respect to expert witnesses do not create new duties but rather codify and reinforce existing common law principles;
• Consultation between counsel and expert witnesses in preparing expert reports, within certain limits, is necessary to ensure the efficient and orderly presentation of expert evidence and the timely, affordable and just resolution of claims;
• Draft reports, notes and records of any consultation between experts and counsel, even where the party intends to call the expert as a witness, are protected by litigation privilege;