Ontario Court of Appeal Releases Moore v. Getahun Decision

On January 29, 2015, the Ontario Court of Appeal released its highly-anticipated decision on the appeal in Moore v. Getahun, (2015 ONCA 55). The Canadian Institute of Chartered Business Valuators (“CICBV”), along with five other intervenors, including The Advocates’ Society, intervened on the appeal.

The appeal was in relation to the decision of the Honourable Madam Justice Janet Wilson, dated January 14, 2014, in which she held that it was no longer permissible for lawyers and experts to have meetings or discussions to review and shape draft reports. While the CICBV had no direct interest in the specific outcome of the appeal, the issues raised regarding the conduct of experts in preparing their reports were of great concern to it and its members. Accordingly, it sought and obtained intervenor status to make submissions on these issues.

In a unanimous decision, the Court of Appeal rejected Justice Wilson’s statements prohibiting interaction between experts and lawyers and instead concluded that “consultation and collaboration between counsel and expert witnesses is essential” (para. 63) to ensure that justice is delivered in a “timely and efficient manner” (para. 65). The Court of Appeal further held that draft reports and notes and communications between an expert and a lawyer are not required to be produced unless “a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert" can be established (para. 78). With this decision, the Court of Appeal has provided clear guidance relating to the conduct of experts and disclosure of experts’ draft reports and communications. 

Courtney Raphael, a litigation partner at Aird & Berlis LLP, acted on behalf of the CICBV.