The “blawgosphere” seems to have lit up this week with the release of Morland-Jones v. Taerk, a dispute between neighbours in the affluent Toronto, Canada, neighbourhood of Forest Hill. Essentially, the Ontario Superior Court ruled that the case, an interlocutory injunction matter involving multiple allegations of trespass and invasion of privacy, should be dismissed because “there is no serious issue.”
We may derive some guilty pleasure from reading about the dispute – evidently between a pair of awful neighbours with no shortage of money to spend on lawyers – but was it right for the judge simply to turn them away? If it were a matrimonial dispute between two annoying spouses from a rich family, would the court be justified in refusing a request by one party for interim relief on this basis? Would the judge have ruled this way, if the same complaints were made by neighbours from a less expensive postal code? My entry on the Gilbertson Davis LLP litigation blog (click link, or click on image above right) canvasses these issues concerning the role of the court in a society where we all depend on the rule of law to get along.
More often than not, referral of a legal problem to lawmakers, or to rules committees for broad consultation, is manifestly preferable to making up procedural law on the fly. In the Ontario Superior Court decision released this week in Moore v. Getahun, 2014 ONSC 237 (CanLII), the trial judge issued an injunction against the practice of litigation counsel reviewing draft reports with expert witnesses.
The relevant paragraphs from the ruling appear at paragraphs 50-52:
 For reasons that I will more fully outline, the purpose of Rule 53.03 is to ensure the expert witness’ independence and integrity. The expert’s primary duty is to assist the court. In light of this change in the role of the expert witness, I conclude that counsel’s prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable.
 If after submitting the final expert report, counsel believes that there is need for clarification or amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel.
 I do not accept the suggestion in the 2002 Nova Scotia decision, Flinn v. McFarland, 2002 NSSC 272 (CanLII), 2002 NSSC 272, 211 N.S.R. (2d) 201, that discussions with counsel of a draft report go to merely weight. The practice of discussing draft reports with counsel is improper and undermines both the purpose of Rule 53.03 as well as the expert’s credibility and neutrality.
Despite the splash that ‘unbundling’ made as a model for legal service delivery, it has largely been the domain of family law and small claims litigation. As a business model, unbundling presents considerable challenges for the law practice. My recent paper, Drawing Clear Boundaries: Unbundling Litigation Without Letting It All Hang Out, provides some do’s and don’ts of making limited-scope retainers work in a litigation practice.