Released May 29, 2015 | CanLII
This was an appeal of an order dismissing SSQ’s motion to remove plaintiff’s counsel in a disability claim against SSQ. The motion was brought by SSQ after it learned that plaintiff’s counsel had retained two medical experts who had been consulted by SSQ regarding the plaintiff’s treatment needs prior to litigation. SSQ argued that the two experts, an occupational therapist and a psychologist, were privy to confidential and litigation privileged information that they had received from SSQ. SSQ objected to the use of the two experts and sought the removal of plaintiff’s counsel.
The motions’ judge dismissed SSQ’s motion and found that a health care professional-patient relationship had been established the first time the plaintiff met the experts and that the experts had not received any lawyer-client or litigation privileged information. The motions judge also found that there was no property in the experts as witnesses. As such, the motions judge found that SSQ was not precluded from meeting with the experts prior to trial on condition that neither expert was questioned regarding any privileged material they may have received from plaintiff’s counsel or asked to disclose any opinion they provided to plaintiff’s counsel.
The appeal judge agreed with the motions’ judge conclusion that there was nothing improper with plaintiff’s counsel retaining an expert previously retained by defence counsel to give an opinion about issues arising in the litigation between the parties, provided that no solicitor-client or litigation-privileged information was transmitted. The judge asserted that removal of counsel could be an appropriate remedy in instances where this did occur. The judge asserted that SSQ failed in meeting its initial onus of proving that the experts had received privileged or confidential information. He found that no litigation was being contemplated at the time the experts were retained by SSQ. The judge further asserted that a professional-patient relationship was established with the plaintiff since both experts were involved in making treatment recommendations for the plaintiff, if not also directly involved in providing treatment. Although the judge was sympathetic to the SSQ’s perception of unfairness, he ultimately dismissed SSQ’s appeal on the basis that neither of the experts had received any confidential or privileged information.
