On January 29, 2015, the Ontario Court of Appeal held that counsel and their experts are permitted to confer in a way that does not interfere with an expert’s impartiality and meets the standards of conduct prescribed by both the expert’s and counsel’s respective professional regulating bodies. These communications do not need to be committed to writing to avoid increased delay and cost.
Counsel is to ensure that the expert: (1) understands its legal duty to the court; (2) complies with applicable rules of procedure and evidence; (3) produces an opinion that is relevant to the issues in dispute; and (4) prepares a report that is comprehensible for and useful to the court.
Communications between counsel and the expert will have the protection of litigation privilege unless there are reasonable grounds to suspect that counsel communicated with the expert in a way that is likely to interfere with the expert’s duties of independence and objectively. Only “the foundational information” that supports and underpins the opinion must be disclosed along with the expert’s report to be relied on at trial.
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