August 5, 2014

Kevin Gourlay

Medical Records_iStock_000016332361_Medium

In a voir dire during a recent jury trial (available here), Mr. Justice Abrioux criticized the practice of experts appending lengthy appendices, particularly those summarizing voluminous clinical records.  The criticism makes sense in a jury trial; those clinical records would not otherwise be in the jury room so it defies logic to allow them to be “backdoor-ed” into the jury room by having them appended to an expert report.  The effect of the ruling is to place a greater onus on counsel to make sure that the facts and assumptions relied upon by the expert are clearly set out in the report.

[29]         As outlined in Rule 11-6(1)(e) and (f), an expert’s report should clearly delineate between “facts and assumptions” and “opinion”. To the extent there is information in an appendix that is a fact or assumption upon which an expert relies, then that should be contained in the “facts and assumptions” section of the report itself. Likewise, to the extent an appendix contains an opinion, then that should be set out in the “opinion” section of the report. Generally speaking, appendices to the report should be streamlined, and only include what is necessary for the formulation of the expert’s opinion and/or the facts and assumptions upon which it is based.

[30]         An appendix containing summaries and comments, to the extent that it does not contain an opinion or underlying facts and assumptions, is no more than a working paper which does not need to be included in the report itself. It should remain in the expert’s file, which is producible pursuant to Rule 11-6(8). As with any other document forming part of the expert’s file, it can be the subject of cross-examination.

While this approach is logical, in practice it will require counsel to be involved in ensuring the expert’s report takes the proper form.  The proposed approach diverges significantly from a recent Ontario decision (available here: where the Court deemed all discussions of draft reports with experts to be improper:

[49]           Defence counsel’s written and oral submissions at the conclusion of the trial suggest that “experts are entitled to prepare draft reports and they are entitled to share those drafts with counsel for comment and discussion.”

[50]           For reasons that I will more fully outline, the purpose of Rule 53.03 is to ensure the expert witness’ independence and integrity. The expert’s primary duty is to assist the court. 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.

[52]           I do not accept the suggestion in the 2002 Nova Scotia decision, Flinn v. McFarland, 2002 NSSC 272 (CanLII), 2002 NSSC 272, 211 N.S.R. (2d) 201, that discussions with counsel of a draft report go to merely weight. 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 distinction is really one of form vs. content; Justice Abrioux’s decision requires counsel to ensure proper form while the Ontario Court is, presumably, concerned with counsel influencing the content.  However, the latter’s comments appear to go significantly further than content alone.


Counsel Notes

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