Dr. Grafius

The appellant onion growers suffered significant crop losses due to onion maggots and sued the manufacturer and seller of the insecticide Dyfonate for breach of warranty and negligence.

The trial judge dismissed the action, finding that the crop failure was caused by unusually cool and dry environmental conditions that delayed the emergence of the maggots, rather than a defect in the insecticide.

The Court of Appeal upheld the trial judge's factual findings and concluded that the respondents provided no express or implied warranties regarding the insecticide's effectiveness under those unusual conditions, nor were they negligent.

The appellants sought to introduce fresh evidence on appeal, specifically a memorandum containing foundational information for the final opinion of an expert retained by the respondents.

A single judge of the Court of Appeal ordered the production of the memorandum under Rule 31.06(3).

The respondents moved to set aside this order.

The Court of Appeal granted the motion, holding that Rule 31.06(3) applies only to the discovery stage of litigation and does not entitle a party to obtain disclosure after trial, especially when the party knew of the expert's final opinion prior to trial but failed to seek discovery of the foundational information at that time.

The plaintiffs brought a motion for the production of a memorandum detailing a conversation between the defendants' former counsel and their expert witness, Dr. Grafius.

The defendants claimed the memorandum was protected by litigation privilege.

The Court of Appeal held that rule 31.06(3) of the Rules of Civil Procedure must be interpreted broadly, requiring the disclosure of all foundational information for a testifying expert's report.

The court ordered the production of the memorandum, finding that litigation privilege does not protect the foundational information of an expert called to testify at trial.