Overview
In Stewart, the plaintiff’s motion seeking to compel production of an expert assessment company’s records dealt with the issue of whether an opposing party’s expert communications and drafts are protected by litigation privilege.
Background
The plaintiff claimed damages for injuries she sustained in two motor vehicle collisions. She brought a pre-trial motion seeking an order to compel production of the records from a non-party assessment company retained by the defendant, and to permit questioning of the non-party company.
The defendants had jointly retained Dr. Finkelstein through HVE Health Assessments to conduct an orthopaedic defence medical assessment of the plaintiff. Dr. Finkelstein, whose opinion was primarily based on surveillance of the plaintiff walking her dog and grocery shopping, opined that there was pain exaggeration, and that the surveillance impeached her self-report. He concluded she was not permanently injured and was therefore able to return to work.
Following the pre-trial conference, the defendants produced additional reports from different doctors whose opinions differed from Dr. Finkelstein as to whether the plaintiff was fabricating her symptoms. Plaintiff’s counsel followed up with a letter to defence counsel asking specific questions with respect to Dr. Finkelstein and HVE’s involvement and requesting a Rule 39.03 examination. Defence counsel did not respond to the questions and refused an examination. They also refused a cross-examination of their affiant, a lawyer at Intact Insurance.
The issue on the motion before the Court was whether or not the HVE Assessment records, including drafts, summaries and communications provided by HVE, were protected by litigation privilege.
Analysis
The Court reviewed and analyzed the principles of litigation privilege: its primary object for parties to be permitted to prepare their positions without any adversarial interference while required to “yield” to the need for fairness. [1] Preparing for trial requires an “umbrella of protection” allowing counsel to work with third parties, such as experts, while they make notes, test hypotheses and write and edit their draft reports. [2]
The Court also reviewed the case law dealing with Rule 33.06, highlighting the importance of impartiality and independence of the experts who conduct medical examinations. Rule 33.06 includes the obligation that an expert must be the sole author of the report—precluding any “ghostwriting” from occurring. [3] Issues arise where an agency that retains a doctor influences the report, which is then produced to the lawyer, tainting the report with the agency’s impartiality [4].
Absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, a court will not order production of draft reports or notes of interactions between counsel and an expert witness [5]. “Reasonable suspicion” is not a high bar. [6]
Held
Justice required HVE’s records to be produced to the plaintiff.[7] There was factual foundation to support a reasonable suspicion that HVE had prepared or revised parts the expert’s report [8]:
- It appeared unlikely that Dr. Finkelstein, despite claiming to have reviewed the surveillance in its entirety, had reviewed and summarized the surveillance spanning 28.5 hours and in total over 60 hours across eight days. Defence counsel could not answer as to how many hours Dr. Finkelstein had charged for reviewing such extensive surveillance;
- At the time he assessed the plaintiff, Dr. Finkelstein had not yet been given the surveillance;
- The defence had a psychiatric defence medical report from Dr. Gnam opining that his testing did not indicate any conscious symptom amplification or fabrication on the part of the plaintiff. They failed to serve that report prior to pretrial and settlement discussions therein. They did not produce it “forthwith” and in fact held it for almost five months. The withholding of Dr. Gnam’s report raised a “red flag” as to Dr. Finkelstein’s impartiality [9];
- As required by rule 53.05, parties must produce all foundational information relied on by an expert. Summaries or drafts provided by HVE constituted foundation information. The court drew an adverse inference from the defendants’ failure to produce them or answer questions as to whether they were given to Dr. Finkelstein;
- The defendants resisted HVE and Dr. Finkelstein answering questions about HVE’s involvement in the preparation of his report. They also refused to produce their affiant, Intact Insurance’s lawyer, to be cross-examined in advance of the examination;
- The defendants refused to answer basic questions about the interactions between HVE and Dr. Finkelstein, such as whether HVE was involved in the preparation of Dr. Finkelstein’s draft reports. The court drew an adverse inference from their failure to answer these questions.
The defendants were required to produce the foundational documents upon which Dr. Finkelstein relied in coming to his conclusions, including all correspondence between him and HVE. The latter was not protected by litigation privilege because it was not communication between a lawyer and expert.
Additional Notes:
Notably, in requesting information from defence counsel about HVE’s involvement in the report prior to the motion, plaintiff’s counsel offered to provide communications with their own expert witnesses.
The Court also disagreed with the defendant’s submission that the Court may not draw an adverse inference from a party’s refusal to answer proper questions at an examination for discovery on the basis it is open to them to bring a motion to compel the answer. The Court may draw inferences as such.
[1] Stewart v. Lattanzio, 2022 ONSC 1770 at para 22 [2] Stewart at para 21; Blank v. Canada (Department of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, paras 27 and 34 [3] Stewart at para 27; Moore v Jacob, 2022 ONSC 10 (CanLII) at para 37 [4] Stewart at 27; Moore at 37 [5] Stewart at para 39; Simons v. Canada (Attorney General), 2018 ONSC 3741 (CanLII) at para 47; Moore v. Getahun, 2015 ONCA 55 [6] Stewart at para 35 [7] Stewart at para 30 [8] Stewart at paras 30(a) to (f) [9] Stewart at para 30(d)
