In these concise reasons of Associate Justice Jolley, the court outlines the legal test that must be met before counsel can obtain disclosure of the communications between counsel and their experts – information that is otherwise protected by litigation privilege, subject to the pre-trial discovery obligations set out in Rules 31.06(3) and 53.03(2.1).
Facts
In June 2022, the defendants served an expert report in which their expert was asked to make certain assumptions. In particular, the expert was asked to assume that when the plaintiff, who subsequently died, saw the defendant physician, that the plaintiff told the defendant physician that the onset of their chest pain was 5:00 AM on the day in question. At the time the report was delivered, counsel for the defendant physician advised the plaintiffs that this would also be the defendant physician’s evidence at trial and that this anticipated evidence was based on the physician’s independent recollection and not on any note or record.
Counsel for the plaintiffs refuted this evidence and stated that it was contrary to the evidence provided during the examinations for discovery. As such, they sought production of the instruction letter, emails between counsel and the expert, as well as a memo of any conversation between counsel and their expert.
Legal Test
Everyone agreed the applicable legal test was found in the Ontario Court of Appeal decision of Moore v. Getahun.[1] In order to obtain disclosure of this otherwise privileged information, there must be evidence that “might support a reasonable suspicion that counsel improperly influenced the expert”.[2]
Analysis
Associate Justice Jolley concluded that the plaintiffs had not met the evidentiary burden for two reasons:
- There was no evidence that might suggest that defence counsel improperly influenced their expert; and
- The underlying dispute was about the truth of the assumption itself and whether the evidence of the defendant physician was accurate. It was the plaintiffs’ position that this “new” evidence must have been the result of improper coaching or interference.
Associate Justice Jolley pointed out that the expert’s role was not to draw conclusions about the truth or accuracy of the assumption. If, at trial, the underlying assumption was not proven by the defendant, the plaintiffs were entitled to make arguments about the weight the expert opinion was entitled to. Otherwise, the expert had met their obligations under Rule 53.03(2.1)(6)(i) to disclose the factual assumptions on which their opinion was based. Unless they were called to testify at trial and subject to cross-examination, that is all the plaintiff was entitled to.
Held
Associate Justice Jolley held that litigation privilege continued to be attached to communications between counsel and their expert. The motion was dismissed.
[1] 2015 ONCA 55 (“Moore”).
[2] Moore at para 78.
