Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m J U L Y 2 0 1 5 45 what meets the test of allowable communication with expert witnesses after the trial judge held that "counsel's practice of reviewing draft reports should stop." But the Court of Appeal held that banning "undocumented discussions between counsel and expert witnesses or mandating disclosure of all written com- munications is unsupported by and contrary to existing author- ity." Adequate safeguards are in place to protect against counsel interference with an expert's objectivity and impartiality, added the Court of Appeal. Though experts do need guidance from counsel, the prob- lem is how far should it go, wonders Glenn Anderson, author of another evidence text. "It can be abused, of course, when lawyers are trying to exert influence over their expert, trying to lead them down to a conclusion or perhaps editing reports or choosing language that may be different from the experts," says Anderson, the director of litigation at the Nova Scotia Legal Services Division. "It's very important that experts do their own work but they clearly need guidance by lawyers." More problematic is the Ontario Court of Appeal's finding that communications about draft expert reports are presump- tively privileged, fall within a "zone of privacy," and are not subject to disclosure. The challenge with attaching litigation privilege to draft reports, notes, and records of consultation between counsel and expert witnesses is that it makes it much more difficult to assess an expert's independence, impartiality, or thoroughness of work, says Anderson. "There should be full disclosure to fully assess the expert's conclusions, and how they got there, and the basis upon which they did, and the language they used. I sense that may not be the last word on that issue." That is an issue Quebec lawyers too will face in the near future. Expected to be in effect next January, the new Code of Civil Procedure introduces significant changes to the rules regarding expert evidence. The new code intends to encourage the use of a joint and single expert by the parties in the hope it will save time and costs. Parties who want to call on their own expert would need the court's permission. That will no doubt prove to a tough sell for the bar, says Donald Béchard, author of L'expert. Equally contentious is the obligation of parties to disclose to the court instructions given to experts. "That is a bombshell," said Béchard, a Quebec City lawyer. "It runs against solicitor- client privilege and litigation privilege. The mandate that I give to an expert is covered by professional secrecy. Discussions I have with an expert are too covered by professional secrecy or litigation privilege. It's really surprising, and it will likely be challenged." While the recent batch of cases and developments address different angles of the law on expert evidence, the last word has almost certainly not been said on this thorny issue. But one thing is clear: experts have a duty to the court to provide inde- pendent and impartial evidence. "The bottom line is that we all have a role to play. Defence lawyers have a duty to challenge and not become complacent. The Crown has a duty not to bring junk science into court, and judges have to take on their gatekeeping role as part of their mandate," says Rondinelli. www.kuretzkyvassos.com Tel: (416) 865-0504 BARRY KURETZKY AND GEORGE VASSOS LEXPERT ® RANKED SINCE 1997 AND SELECTED TO BE IN "BEST LAWYERS IN CANADA" ntitled-1 1 13-12-04 9:49 AM eneinHutchison-1_CL_Mar_15.indd 1 2015-02-09 9:50 AM

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