Series of decisions clarify expert evidence use

The trial decision of Justice Janet Wilson in Moore v. Getahun has been overturned by the Ontario Court of Appeal, Toronto critical injury lawyer John McLeish tells Law Times.

Trial judge Justice Janet Wilson, in Moore v. Getahun, 2014 ONSC 237 (CanLII), held it was improper for counsel to assist an expert witness in the preparation of a report. The Court of Appeal in Moore endorsed protocols for dealing with draft reports and acknowledged the importance of lawyers talking to experts in their preparation of a final report.

Two new cases

In two new cases — Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 (CanLII) and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (CanLII) — the Supreme Court of Canada confirmed that experts are not generally assailable for bias without strong cause, says Law Times.

“Before the trial decision in Moore, counsel could talk to the expert and discuss draft reports,” McLeish, partner with McLeish Orlando LLP, tells Law Times.

“Plaintiffs’ lawyers in personal injury litigation deal with many unsophisticated experts such as treating doctors, be they family doctors or orthopaedic surgeons. They are not familiar with legalese. For example, most do not know the huge significance between the words ‘possibly’ on the one hand and ‘probably’ on the other,” he says. The difference between the two words can be the difference between recovering full compensation or nothing at all.

The trial decision of Justice Janet Wilson prevented any discussion about what the orthopedic surgeon meant to say, adds McLeish.