The plaintiffs sought to add two radiologists as defendants to a medical malpractice action after the presumptive expiry of the limitation period, claiming they only recently discovered the claim through expert advice.
The proposed defendants brought a motion to compel disclosure of the identities of the plaintiffs' consulting experts and all communications with them, which the plaintiffs resisted on grounds of relevance and litigation privilege.
The court held that by relying on the experts' advice to explain the delay in discovering the claim, the plaintiffs impliedly waived privilege over the experts' identities and certain notes of conversations with them, as fairness required the proposed defendants to be able to test the plaintiffs' evidence on discoverability.
However, other requested documents remained protected by privilege or were irrelevant.
