The respondents in a Charter application brought a refusals motion seeking to compel three expert witnesses retained by the applicants to re-attend cross-examinations and produce draft affidavits and notes of communications with counsel.
The respondents argued that counsel's assistance in drafting the experts' affidavits raised reasonable grounds to question their independence, thereby waiving litigation privilege.
The court applied the principles from Moore v. Getahun and White Burgess, finding that consultation between counsel and experts is a necessary part of the adversarial process.
The court dismissed the motion, concluding there was no factual foundation to support a reasonable suspicion that counsel improperly influenced the experts.
