Dean Grette v. L’Union Canadienne Compagnie d’Assurances, 2008 ONFSCDRS 124

Financial Services Commission des

Commission services financiers

of Ontario de l’Ontario

Neutral Citation: 2008 ONFSCDRS 124

FSCO A07-002405

BETWEEN:

DEAN GRETTE

Applicant

and

L’UNION CANADIENNE COMPAGNIE D’ASSURANCES

Insurer

PRE-HEARING DECISION

Before: Fred Sampliner

Heard: By written submissions May 1, 2008 from Mr. Jamie Pollack for Mr. Grette, and on May 28, 2008 from Ms. Debbie Orth for L’Union Canadienne Compagnie d’Assurances

Issues:

The Applicant, Dean Grette, was injured in a motor vehicle accident on July 21, 2006. His claims for accident benefits under the Schedule¹ against L’Union Canadienne Compagnie d’Assurances (“L’Union”) are set for hearing December 1 to 4, 2008 with the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended. This decision arises from the March 6, 2008 pre-hearing, where Mr. Grette’s counsel refused L’Union’s request for production of his experts’ draft reports and foundation material.

The issue is:

Are the notes, draft reports, technical data, communications, calculations and test results from Mr. Grette’s experts protected by litigation privilege?

Result:

The notes, draft reports, technical data, communications, calculations and test results from Mr. Grette’s accountant and occupational therapist are not protected by litigation privilege, but the experts’ letters of instructions from counsel are irrelevant.

EVIDENCE AND ANALYSIS:

Mr. Grette’s position is that the pre-hearing is too early in the arbitration process to compel disclosure of the material from his expert witnesses because he has not yet waived litigation privilege. He maintains there is no urgency requiring termination of his confidential relationship with his experts during litigation, maintaining he is supported by Rules 39 to 41 of the Dispute Resolution Practice Code (the “Code”) and Cheryl Campeau and Liberty Mutual Insurance Company (FSCO A00-000522, March 12, 2001). Specifically, he argues there is no requirement for him to disclose his expert witnesses or the confidence of their evidence until thirty days prior to the hearing under to Rule 33 of the Code.²

While I agree that the Rules support Mr. Grette’s position that parties disclose their witnesses and evidence thirty (30) days prior to the commencement of the first hearing day, this Tribunal has a long-standing policy promoting early exchange of the key documents parties intend to rely on at the pre-hearing stage of the proceeding. Accepting Mr. Grette’s argument would undermine the efficiency and speed of the arbitration process³, as well as the pre-hearing practice clearly set out in Practice Note 4 (Section D) and by Rule 32 of the Code.

I reject Mr. Grette’s argument that the pre-hearing is too early to make production orders in this case, and I have authority, policy direction and Rules to resolve this production dispute through an order at the pre-hearing that will advance the efficiency and speed of the hearing process.

I would normally agree that Mr. Grette’s experts and their confidential evidence about his claims in this process are protected by litigation privilege, in accordance with 5.4(2) of the Statutory Powers Procedure Act, R.S.O 1990. However, Mr. Grette disclosed two of his experts’ confidential reports concerning his claims for accident benefits to L’Union in his pre-hearing brief. The accountant he retained reports an opinion about the quantum of his income replacement benefit and an occupational therapist provides an assessment of his attendant care needs.

Mr. Grette’s disclosure contradicts his assertion of confidentiality in this expert material. I consequently find that his voluntary disclosure to L’Union of the name and report contents of his accounting and attendant care expert waives litigation privilege respecting them.

Mr. Grette further asserts that Campeau supports his position that litigation privilege protects the confidence of his experts’ foundation material even if he discloses their reports. Mr. Grette’s interpretation of Campeau does not comport with that decision’s order to disclose the expert’s draft reports and foundation material, excluding counsels’ instruction letters. Arbitrator Blackman quoted instructive reasoning in Vancouver Community College v. Phillips, Barratt (1987), 1987 CanLII 2532 (BC SC), 38 L.C.R. 30:

So long as the expert remains in the role of a confidential advisor, there are sound reasons for maintaining privilege over documents in his possession. Once he becomes a witness, however, his role is substantially changed. His opinions and their foundation are no longer private advice for the party who retained him. He offers his professional opinion for the assistance of the court in its search for the truth. The witness is no longer in the camp of a partisan. He testifies in an objective way to assist the court in understanding scientific, technical or complex matters within the scope of his professional expertise. He is presented to the court as truthful, reliable, knowledgeable and qualified. It is as though the party calling him says: “Here is Mr. X, an expert in an area where the court needs assistance. You can rely on his opinion. It is sound. He is prepared to stand by it. My friend can cross-examine him as he will. He won’t get anywhere. The witness has nothing to hide.”

It seems to me that in holding out the witness’s opinion as trustworthy, the party calling him impliedly waives any privilege that previously protected the expert's papers from production. He presents his evidence to the court and represents, at least at the outset, that the evidence will withstand even the most rigorous cross-examination. That constitutes an implied waiver over papers in a witness’s possession which are relevant to the preparation or formulation of the opinions offered, as well as to his consistency, reliability, qualifications and other matters touching on his credibility.

Mr. Grette has not presented a persuasive policy reason to distinguish the notes, draft reports, technical data and test results that form the basis of his two experts’ opinions he obviously intends to rely on for his attendant care benefits and income replacement benefits. Based on Campeau, I do not accept Mr. Grette’s argument that litigation privilege applies to their notes, draft reports, technical data and test results upon which his accounting and occupational therapist based their reports. I find Mr. Grette is required to produce the above foundation material respecting his accounting expert and his occupational therapy expert.

Both expert reports state the material that they relied on to form their opinions, and do not refer to the instruction letters from Mr. Grette’s counsel. I find that the instruction letters from Mr. Grette’s counsel are irrelevant and immaterial to the opinions of his experts, and do not order him to produce these letters.

EXPENSES:

I am concerned over delay in hearing this matter through further production problems, but defer the expense issue of this production matter until it is known whether I must deal with other procedural issues before the hearing commences. To avoid future problems, I strongly encourage the parties to promptly meet their undertakings, provide each other with full exchange of the documentary material they intend to rely on at the hearing, tell each other who they intend to call for witnesses well before the hearing commences and cooperatively manage how the evidence will be presented. Their preparation of a joint document brief with witness lists sixty days in advance of the hearing would assist everyone.

July 23, 2008

Fred Sampliner

Arbitrator

Date