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Page 6 March 17, 2014 • Law TiMes www.lawtimesnews.com COMMENT Maintain the momentum t was only last year that the Superior Court seemed to be in an intractable crisis over delays in hearing simple motions in civil matters. In September, Law Times noted lawyers' growing frustration that it was taking up to seven months to have simple motions heard. e problem sparked complaints about a lack of judges and resources as well as a lacklustre case-management system. In response, Superior Court Chief Justice Heather Smith vowed to take action. It seems she meant what she said. As Law Times' Yamri Taddese reports this week, Smith is touting her success in reducing wait times for civil motions to four months. Lawyers are skeptical, particularly as they note the changes have mainly affected short rather than long motions and trials. But coming just a few months aer the problem appeared intolerable, the success so far is promising. Part of the changes has involved new scheduling practices that eliminated so-called placeholder motions booked by lawyers on the off chance they'll need them later on. As a result, parties seeking to schedule a motion must file it within 10 days and pay a fee or lose their hearing date. According to lawyer Daniel Reisler, the fact lawyers were using that tactic is a sign of just how difficult it was to schedule motions Counsel can still review draft expert reports despite Getahun as the court's reading of Rule 53.03 gone too far? Common law has established that an expert owes allegiance to the administration of justice and not to the party cutting the cheque, an expectation codified in the Rules of Civil Procedure. Recent case law also makes clear that anything that may have influenced the expert's final opinion, such as dra reports, evidence put to the expert, and communications from counsel, are fair game for disclosure. But what about lawyers' practice of reviewing those dra reports with their experts? Could the court view it as negatively affecting the partiality of ex- perts? Justice Janet Wilson of the Ontario Superior Court of Justice seems to think so. On Jan. 14, Wilson released her reasons for judgment in the case of Moore v. Getahun. In Getahun, the plaintiff suffered a broken right wrist as a result of a motorcycle ac- cident. He then suffered compartment syndrome to his right arm due to the misapplication of a cast by his emer- gency room physician, who was the defendant. e par- ties agreed on damages and so the only issue at trial was liability. In commenting on the expert medical evidence, Wilson noted defence counsel had reviewed the expert's dra report during a 1-1/2-hour teleconference. Wilson wasn't happy about that. "e purpose of Rule 53.03 of the Rules of Civil Pro- cedure is to ensure the independence and integrity of the expert witness," she wrote. "e expert's primary duty is to the court. In light of this change in the role of the expert witness under the new rule, I conclude that counsel's practice of reviewing dra reports should stop. ere should be full disclosure in writing of any changes to an expert's final report as a result of counsel's corrections, suggestions, or clarifications, to ensure transparency in the process and to ensure that the expert witness is neutral." One could argue this case is in line with recent case law on the issue of expert evidence in Ontario. It flows from the principles of fairness underlying the scope of an ex- pert's duty. On the other hand, this case arguably goes fur- ther than any other decision in Ontario has gone, at least as far as I can tell. It is one thing to hold that dra reports and all documents provided to experts are producible. To say counsel should not review those dra reports may un- duly constrain the ability to advocate for the client. To be fair, what Wilson appears to have taken issue with in Getahun is the fact that defence counsel had a lengthy teleconference with their expert to discuss the dra report. is oen happens in order to find out where the client stands. If an expert advises that the pre- liminary findings are against the interests of the lawyer's client, then it is imperative to know that as soon as pos- sible. What the courts are concerned about, I suspect, is defeating any apprehension of bias that may flow from such a discussion. at seems to be what Wilson is say- ing when she made her comments noted above about providing full disclosure in writing of any changes to an expert's final report as a result of counsel's correc- tions, suggestions or clarifications. Ultimately, I do not take Wilson's decision to mean counsel should flat out stop reviewing dra expert reports. In practice, that would be hard to do. If I have to produce a dra expert report to opposing counsel, I should be able to review it first. Aer all, how many law- yers produce documents or reports to opposing counsel without having reviewed them first? One would hope not many do that, of course. Furthermore, if I read that dra report and have ques- tions about it as I may not understand its technicalities, should I not be able to ask the author to assist me in resolv- ing my confusion? Aer all, I cannot know the strength of my client's case or defence if I cannot understand the evidence before me, nor can I help the court understand that expert's findings if I cannot understand them myself. erefore, it seems to me that a sensible reading of Wil- son's decision is that counsel ought to maintain a policy of transparency. Document any conversations with the ex- pert and produce that information for the other side. at might seem offensive to some, but I believe that resolves any apprehension of bias. In my humble opinion, the court is more likely to see counsel who are willing to put all of their cards on the table as being trustworthy. Quite frankly, I do not know of a judge who wants to side with a party who appears less than forthcoming. LT uAvraham Sharabi practises insurance law and commer- cial litigation at Clyde & Co LLP. To contact him, e-mail avraham.sharabi@clydeco.ca. u SPEAKER'S CORNER ©2014 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. 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But the court must continue to make progress, particularly as we've seen concerted efforts to resolve delays before only to watch the problem later emerge once again. Given the scale of the problem, it's crucial to continue look- ing at scheduling issues and court practices to keep up the momentum and hopefully make progress on the timelines for long motions and trials that con- tinue to frustrate lawyers and their clients. — Glenn Kauth I BY AVRAHAM SHARABI For Law Times H

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