This case involves a motion brought by the plaintiff for production of the records of the assessment centre and the doctor they hired to prepare a defence medical report.
The plaintiff was injured in two collisions, one in July 2014 and one in January 2015. She claimed the accidents caused her chronic pain and major depression and that she was unable to return to work. The plaintiff’s accident benefit carrier found her to be catastrophically impaired.
One of the defendants asked the plaintiff to undergo an orthopaedic assessment with Dr. Finkelstein, which was set up through HVE Healthcare Assessments (“HVE”). Dr. Finkelstein’s report concluded that the plaintiff was not permanently injured, that she could return to work and, most importantly, that she put forth a “volitional attempt to overstate her disability and pain.” This conclusion was based mostly on surveillance tapes showing the plaintiff shopping, doing some gardening and walking her dog.
Following the pretrial, the plaintiff asked for information regarding HVE’s involvement in the preparation of Dr. Finkelstein’s report. The defence refused to provide any answers and, in addition, also refused to allow the plaintiff to conduct a Rule 39.03 examination of HVE or Dr. Finkelstein. This motion then ensued.
The defence opposed the motion, arguing that the documents in question are covered by litigation privilege and should not be ordered produced while the plaintiff’s position was that litigation privilege must yield to the principle of fairness and, as such, the records should be produced.
Price J. started the legal analysis with the proposition that litigation privilege does not operate in a vacuum and, must in fact, yield to the requirements of Rule 33.06 (medical examination of parties) and 53.03 (expert witnesses). While litigation privilege creates “a zone of privacy in relation to pending or apprehended litigation,” it “must yield to the need for fairness in appropriate circumstances…”. ‘Appropriate circumstances’ include instances where litigation privilege could be used “to shield improper conduct” or where there is a ”reasonable suspicion” that counsel improperly influenced an expert. Price J. quotes extensively from [MC1]We can either link to the decision – https://www.canlii.org/en/on/onca/doc/2015/2015onca55/2015onca55.html
” data-type=”URL” data-id=”[MC1]We can either link to the decision – https://www.canlii.org/en/on/onca/doc/2015/2015onca55/2015onca55.html
” target=”_blank”>Moore v. Getahun, 2015 ONCA 55 where the Court of Appeal expressed concern about counsel reviewing draft reports with their experts. Linking that case to the one at hand, Price J. notes that there is no professional body regulating medical experts or assessment centres and, as such, there is a risk that “the agency may influence the report of the doctor it retains, which the agency then supplies to the lawyer, tainting the report with the agency’s impartiality.”It is against these circumstances that Price J. considers Rule 33.06 which imposes special obligations on an expert conducting a medical examination, “including the obligation to be the sole author of the report” and not to have others “ghost write” parts of the report or influence the author’s conclusions.
In the case at hand, Price J. finds that a “factual foundation” exists “to support a reasonable suspicion that HVE prepared or revised parts of the report.” In particular, Price J. refers to the fact that Dr. Finkelstein’s conclusions are based largely on 60 hours of surveillance evidence which the report indicates Dr. Finkelstein reviewed. However, when asked how much Dr. Finkelstein charged for reviewing the surveillance, the defence refused to provide this information. Another red flag was the fact that the defence failed to produce the report of Dr. Gnam, another defence doctor, who concluded that the plaintiff showed no symptom amplification in her testing, thereby directly contradicting Dr. Finkelstein’s findings. Finally, the defence’s refusal to answer any questions regarding the relationship between HVE and Dr. Finkelstein as it pertained to the plaintiff led the Court to make an adverse inference.
As a result, Price J. found that the documents requested by the plaintiff were foundational documents not covered by litigation privilege because they did not amount to communication between a lawyer and the expert. This, coupled with the reasonable suspicion that HVE influenced Dr. Finkelstein’s report, led to an order for the disclosure of all documents sought by the plaintiff.
This case demonstrates that, in the context of expert evidence, litigation privilege will yield to fairness in circumstances where the former might be used to shield improper conduct or where there is a reasonable suspicion that an expert will be improperly influenced by an assessment centre or counsel. In such circumstances, expert documents that may be covered by litigation privilege may be produced. Further, communications between the assessment centre and the expert are not covered by litigation privilege.
