Full Decision
Heard: April 11, 2019
Decision released: June 26, 2019
Headline: Court rules where expert report served during discovery process, lawyers’ letter of instruction to expert is protected by litigation privilege and not producible at discovery stage so long as instructions from counsel is included in the report itself.
This decision arose on appeal of a master’s decision to a judge, on the issue of whether the defendant was required to disclose the letter of instruction from counsel to the expert and other foundational information, after having served an expert’s report compliant with rule 53.03 during the discovery phase.
The decision arose in the context of a solicitor’s negligence case where the plaintiff sought compliance with an undertaking given by the defendant at discovery to “provide the disclosure required under the rules regarding any experts retained and their opinion.” The Defendant subsequently served an expert’s report along with the Form 53 Acknowledgement of Expert’s Duty, and curriculum vitae. The plaintiff took the position that the defendant had not complied with the undertaking and sought further foundational information.
Master Sugunasiri had originally ruled that the plaintiff was entitled to foundational information and ordered the defendant to produce: a) documents or information that show the instructions that the expert proceeded on; b) documents or information that show the assumptions the expert was asked to make; c) documents or information showing the evidence the expert relied on; and d) documents and materials given to the expert.
Notably, Master Sugunasiri did not require the defendant to produce any drafts of the report or any correspondence as between the lawyer and the expert which contained foundational information, though requested by the plaintiff.
The parties were in agreement that the foundational information requested by the plaintiff is required to be disclosed for any expert upon whom a party intends to rely at trial. The issue in the case was about when this information was required to be disclosed. In this case the expert report was served during the discovery process and lead the plaintiff to request this information during the discovery phase of the litigation.
In setting aside Master Sugunasiri’s order, Justice Stinson ruled that Master Sugunasiri had erred in law by relying on the decision of Andreasen v. Thunder Bay (City), 2014 ONSC 314 in ordering the foundational information producible during the discovery phase, since Andreasen dealt with such disclosure at trial and by a plaintiff. It was also a decision made prior to the Court of Appeal’s decision in Moore v. Getahun, 2015 ONCA 55 which refined and clarified the law and procedure related to litigation privilege which attaches to communications between counsel and an expert and related documentary disclosure.
Justice Stinson held that in this case the defendant had complied with rule 53.03 in order to satisfy the procedural pre-conditions to be permitted to call the expert as a trial witness. The defendant had not made a determination about whether or not that expert would in fact be called as a witness at trial. That is often a decision made by defence counsel on the close of the plaintiff’s case. At the pre-trial stage, the plaintiff’s right to disclosure is set out in rules 31.06(3) and 53.03(2.1).
Justice Stinson followed the case of Maxrelco Immeubles Inc. v. Jim Pattison Industries Ltd., 2017 ONSC 5836, finding that where an expert report contains the instructions from counsel, as required by rule 53.03(2.1) 3, the letter of instruction remains protected by litigation privilege and is not producible.
The court held there was no evidence that might support a reasonable suspicion that counsel improperly influenced the expert.
The timing of the request and whether there is a clear intention on the part of the defendant to call the expert witness at trial, are important to consider when requesting foundational information of a defendant’s expert report.
Edwards v. McCarthy, 2019 ONSC 3925
