COURT FILE NO.: CV-16-00001693-0000 DATE: 2022-03-21 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
FIONA STEWART Neil G. Wilson, for the Plaintiff Plaintiff
- and -
NATALIE ALLAN, DANAN LATTANZIO and ANN LATTANZIO Defendants Trevor J. Buckley, for the Defendant, Natalie Allan (not in attendance) Sonja A. Nuic, for the Defendants, Danan Lattanzio and Ann Lattanzio Jessica Simone, for the non-party, HVE Healthcare Assessments (not in attendance)
HEARD: March 8, 2022, by videoconference, at Milton, Ontario
Price J.
Reasons For Decision
NATURE OF MOTION
[1] The plaintiff claims damages for personal injuries suffered in two motor vehicle collisions six months apart. The action is scheduled to proceed to trial in October 2022.
[2] The plaintiff moves for an Order to compel production of records from a non-party assessment company, HVE Healthcare Assessments, and the doctor, Joel Finkelstein, whom it retained, and to permit questioning of HVE. Dr. Finkelstein conducted an orthopedic assessment of the plaintiff and concluded that she was not permanently injured and was able to return to work.
BACKGROUND FACTS
[3] The plaintiff was 44 years old and was employed for over 15 years by Sobeys. At the time of the collisions, she was a Replenishment Analyst.
[4] The plaintiff was injured in two motor vehicle collisions, the first on July 3, 2014; the second on January 10, 2015. She says that as a result of her injuries, she suffers from chronic pain and major depression, which render her unable to work. The plaintiff’s accident benefits insurer determined that she is catastrophically impaired.
[5] The defendants arranged to have the plaintiff undergo a medical assessment through a third-party assessment company, HVE Healthcare Assessments (HVE). HVE retained Dr. Joel Finkelstein to conduct an orthopedic assessment of the plaintiff.
[6] On September 7, 2021, the defendants served an expert report by Dr. Finkelstein, who concluded that the plaintiff is not permanently injured, is able to return to full-time work, and is engaged in a “volitional attempt to overstate her disability and pain”.
[7] Dr. Finkelestein based his conclusion largely on surveillance evidence showing the plaintiff walking her dog and grocery shopping. He states, at page 19 of his report:
Ms. Stewart’s examination was concerning for inconsistencies and medically incongruent findings. Ms. Stewart’s self-reported functional limitations are markedly inconsistent with what she is observed to be capable of doing on the video surveillance. Her examination findings compared to the activity on the surveillance, suggests a volitional attempt to overstate her disability and pain.
In my opinion, having seen the video surveillance footage, Ms. Stewart’s presentation during my evaluation was such that she has tried to convince me of impairment and injury. In my opinion, there is pain exaggeration. Her presentation on the video surveillance impeaches her self-report.
[8] While Dr. Finkelstein’s report lists approximately 2800 pages of medical documents in its Appendix A, it is evident that he relies heavily on surreptitious surveillance of the plaintiff that investigators retained by the defendants conducted on eight dates: July 14 and 18, 2018, September 11 and 12, 2019, September 22, 20219, July 12, July 15, and July 23, 2020. The surveillance, which the plaintiff’s lawyers say consisted of 64 hours, shows the plaintiff walking her dogs and doing some light gardening and grocery shopping.
[9] The plaintiff’s lawyers deny that the surveillance evidence is inconsistent with what she said at her examination for discovery that she was able to do. At question 677, she stated that she loves gardening and gardens as much as she is able to. At question 848, she stated that she had gotten back to walking the dogs.
[10] The defendants have listed Dr. Finkelstein as the first witness they will call after defendants themselves. Fifteen hours (three days) of court time has been set aside for his evidence, more than any other defence witness. Dr. Finkelstein is the only witness to be called by the defence who expresses the opinion that the plaintiff is not meaningfully injured and is deliberately exaggerating he pain.
[11] This Court conducted a pre-trial conference on January 18, 2022. Following the pre-trail, the defendants served further expert reports from Dr. Willian Gnam, a psychiatrist, dated August 31, 2021, and Ms. Joan Saunders, an occupational therapist, dated September 17, 2021. Dr. Gnam’s opinion differs from that of Dr. Finkelstein, as to whether the plaintiff is fabricating her symptoms. Dr. Gnam states at pages 8 to 10:
Fiona's scores on the Miller Forensic Assessment of Symptoms Test (M-FAST) did not provide evidence of an overendorsing response style, or of conscious symptom amplification or fabrication.
In my opinion, the evidence – including the file documentation reviewed – indicates that the January 10, 2015 MVA was the dominant cause of Fiona’s depressive disorder, and made substantial (material) contributions to Fiona’s psychosomatic pain disorder and traumatic stress disorders. Moreover, the evidence indicates that the January 10, 2015 MVA resulted in more substantial and enduring functional mental impairments.
[12] Plaintiff’s counsel asked the defence for an explanation of why Dr. Gnam’s and Ms. Saunders’ reports were not disclosed before the pre-trial. Defence counsel replied that they are “looking into this.”
[13] Following the pre-trial, plaintiff’s counsel wrote a letter dated January 25, 2022, to the defendants’ counsel and requested information about HVE’s involvement in the preparation of Dr. Finkelstein’s report. Plaintiff’s counsel asked:
- Are there any written communications between HVE and Dr. Finkelstein?
- What is the nature of the communications?
- What are the date(s) of the communications?
- Did HVE prepare summaries of any medical records or other documents that were provided to Dr. Finkelstein?
- Was HVE involved in the preparation of drafts of any part of Dr. Finkelstein's report?
- Was a draft of any part of Dr. Finkelstein's report prepared prior to him meeting with Fiona?
- Did HVE review a draft of Dr. Finkelstein's report and did HVE make or suggest any changes?
[14] Plaintiff’s counsel offered to provide communications with experts being called by the plaintiff on a reciprocal basis and has produced relevant instruction letters.
[15] Defence counsel did not answer any of the above-noted questions. They also refused to allow the plaintiff to conduct Rule 39.03 examinations of a representative of HVE or of Dr. Finkelstein or to allow a cross-examination of the defendant’s affiant, a lawyer with Intact Insurance, to be conducted before the Rule 39.03 examinations.
ISSUES
[16] The Court must determine whether the records sought by the plaintiff, consisting of drafts, summaries, and communications provided by a third-party assessment company to an expert who conducted a defence medical examination under the Rules are protected by litigation privilege.
PARTIES’ POSITIONS
[17] The defendants assert that the records are protected by litigation privilege and should not be ordered produced.
[18] The plaintiff asserts that the litigation privilege that attaches to the records must yield to the principle of fairness.
ANALYSIS AND EVIDENCE
[19] The issue raised in this motion requires the Court to consider how the principle of litigation privilege intersects with the requirements of Rule 33.06 (medical examination of parties) and 53.03 (expert witnesses) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and the jurisprudence interpreting those rules.
[20] Litigation privilege protects communications with a third party where the dominant purpose of the communication is to prepare for litigation. The object of litigation privilege is “to ensure the efficacy of the adversarial process.” “…to achieve this purpose, parties to litigation… must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.”
[21] These concerns are important in the context of the preparation of expert witnesses and their reports. Litigation privilege creates "a 'zone of privacy' in relation to pending or apprehended litigation." The careful and thorough preparation of a case for trial requires an umbrella of protection that allows counsel to work with third parties such as experts while they make notes, test hypotheses and write and edit draft reports. See: Blank v. Canada (Department of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, par. 27 and 34
[22] While litigation privilege is an important principle, it must yield to the need for fairness in appropriate circumstances in order to accord with the Rules and the jurisprudence interpreting them. In Moore v. Getahun, 2015 ONCA 55, the Court of Appeal articulated the following principles:
(a) “Litigation privilege yields where required to meet the ends of justice…” (Para. 76)
(b) “…the ends of justice do not permit litigation privilege to be used to shield improper conduct” (para. 77); and
(c) The applicable standard for when litigation privilege will yield is “…a factual foundation to support a reasonable suspicion…” (in that case, a suspicion that counsel improperly influenced the expert) (para. 78).
[23] In Moore v. Getahun, the Court of Appeal noted that courts have expressed concern about counsel reviewing draft reports with their experts. Justice Sharpe, speaking for the Court, stated:
[55] While some judges have expressed concern that the impartiality of expert evidence may be tainted by discussions with counsel (see the cases cited below, at para. 72), banning undocumented discussions between counsel and expert witnesses or mandating disclosure of all written communications is unsupported by and contrary to existing authority: see Maras v. Seemore Entertainment Ltd., [2014] B.C.J. No. 1242, 2014 BCSC 1109, [2014] B.C.W.L.D. 4470, at para. 90 ("[c]ounsel have a role in assisting experts to provide a report that satisfies the criteria of admissibility"); Surrey Credit Union v Willson, [1990] B.C.J. No. 766, 45 B.C.L.R. (2d) 310 (S.C.), at para. 25 ("[t]here can be no criticism of counsel assisting an expert witness in the preparation of giving evidence"). In Medimmune Ltd. v. Novartis Pharmaceuticals UK Ltd., [2011] EWHC 1669 (Pat.), the court pointed out, at para. 110, that in some highly technical areas such as patent law, expert witnesses "require a high level of instruction by the lawyers" which may necessitate "a high [page337] degree of consultation" involving "an iterative process through a number of drafts".
[56] As the court in Medimmune noted, at para. 111, "this process entails a risk of loss of objectivity on the part of the expert". However, the independence and objectivity of expert witnesses is fostered under existing law and practice in a number of ways.
[57] First, the ethical and professional standards of the legal profession forbid counsel from engaging in practices likely to interfere with the independence and objectivity of expert witnesses. I attach as an appendix to these reasons the Advocates' Society's Principles Governing Communications with Testifying Experts, which provides a thorough and thoughtful statement of the professional standards pertaining to the preparation of expert witnesses. Principle 3 states:
In fulfilling the advocate's duty to present clear, comprehensible and relevant expert evidence, the advocate should not communicate with an expert witness in any manner likely to interfere with the expert's duties of independence and objectivity.
[Emphasis added]
[24] The Court in Moore v Getahun noted that the ethical standards of other professional bodies, such as engineers, imposes a similar obligation on their members to be independent and impartial when giving expert evidence. These safeguards do not, however, exist in the case of an agency that retains a doctor to conduct an independent medical assessment. The risk that the present motion raises is that the agency may influence the report of the doctor it retains, which the agency then supplies to the lawyer, tainting the report with the agency’s impartiality.
Rule 33.06
[25] The present motion engages Rule 33.06, which was not at issue in Moore v. Gatahun, and Rule 53.03. Rule 33.06 imposes special obligations on an expert conducting a medical examination, including the obligation to be the sole author of the report. Rule 33.06(1) provides:
33.06 (1) After conducting an examination, the examining health practitioner shall prepare a written report setting out his or her observations, the results of any tests made and his or her conclusions, diagnosis and prognosis and shall forthwith provide the report to the party who obtained the order.
[Emphasis added]
[26] In Kushnir v. Macari, 2017 ONSC 307, MacLeod-Beliveau, J. stated at para. 38:
[38] In my view, the proper interpretation of Rule 33.06 is that the report of the expert shall be written solely by its author. To be clear, the expert report must be that of the expert and not a report written partly by administrative staff or other individuals employed by the agency through which the doctor provides expert services. This is what the parties and the courts expect and it is what the Rule implies. I find ghost writing offends Rule 33.06.
[Emphasis added]
[27] In Moore v Jacob, 2022 ONSC 10, Heeney J. stated at paras. 37 to 39:
[37] The next condition demanded by counsel for the plaintiff was that the expert report be drafted solely and entirely by the examining assessor, and that the research, medical record review and drafting of the report be conducted solely and entirely by the assessor. In short, the plaintiff wanted to preclude “ghostwriting”.
[38] Rule 33.06(1) governs the contents of an expert’s report. It provides as follows:
33.06 (1) After conducting an examination, the examining health practitioner shall prepare a written report setting out his or her observations, the results of any tests made and his or her conclusions, diagnosis and prognosis and shall forthwith provide the report to the party who obtained the order.
[39] This rule has been interpreted to preclude ghostwriting, where the report is written partly by others: see Kushnir v. Macari, 2017 ONSC 307 at para. 38. To demand of defendants’ counsel that ghostwriting not be used is tantamount to demanding that they comply with the Rules. Such a condition is unnecessary, and I decline to order it.
[Emphasis added]
[28] The involvement of third-party assessment companies in the preparation of reports and the problems this poses for expert independence has been adverted to in a number of decisions of this Court. In Burwash v. Williams, 2014 ONSC 6828, Smith J. stated, at paras. 15 to 17:
[15] I find that the Plaintiffs should be granted leave to bring this motion. The central questions raised are: (1) whether the documents in question are relevant and (2) whether production of the documents is necessary for trial fairness.
[16] It is critical for the Plaintiffs to be able to properly prepare for the trial, which is rapidly approaching. The Defendants will call expert opinion medical evidence and seek to tender reports as evidence. It is important to know whether the expert produced by the Defendants and/or the report filed is independent, or whether a third party has altered or amended the opinion proffered or the report filed in any substantial way.
[17] To allow this issue to fester, only to surface during the trial, would result in a lengthy delay and presumably a voir dire lasting several days. The jury would be inconvenienced and trial efficiency sacrificed.
[Emphasis added]
[29] In Macdonald v. Sun Life Assurance Company of Canada, 2006 ONSC 41669, H. Spiegel J. stated:
Was it proper for Riverfront to have suggested to Dr. Lipson that highlighted portion be deleted?
[92] Dr. Levy testified that the quality control function of Riverfront addresses solely the issue of grammar, typing and ensuring that the reports are clear and concise and that the questions posed by the client have been answered. To Dr. Levy’s knowledge Riverfront would never suggest substantive changes. ….
[101] In my view Riverfront in this case, went far beyond what can be considered a proper “quality control” function. While I am not prepared to find that they were motivated by a desire to assist the defendant, nonetheless I find their actions constituted an unwarranted and undesirable interference with the proper function of an expert witness.
[102] The function of an expert witness is to provide an independent and unbiased opinion for the assistance of the court. An expert witness’ evidence should be and should be seen to be the independent product of the expert uninfluenced as to form and content by the exigencies of litigation. [National Justice Compania Naviera SA v. Prudential Assurance Company Limited (“the Ikarian Reefer”), [1993] 2 Lloyds Report 68 (QBD)]. This principle has often been cited with approval in our courts, and has been considered a factor to be considered in assessing the weight to be given to the expert’s testimony. It has occasionally been treated as the basis for the disqualification of the witness entirely. [Bank of Montreal v. Citak, [2001] O.J. No. 1096; Fellowes, McNeil v. Kansa General International Insurance Co. (1998), 40 O.R. (3d) 456.]
[103] In my view, any activity that may tend to detract from this all-important objective diminishes the integrity of the litigation and trial process and should be met with appropriate sanctions designed to send a clear message that such conduct will not be tolerated.
[Emphasis added]
[30] In the present case, justice requires that the records of HVE be produced to the plaintiff. I find that there is a factual foundation to support a reasonable suspicion that HVE prepared or revised parts of the report. I base this finding on the following facts:
(a) Dr. Finkelstein’s conclusions are based largely on surveillance evidence. His report states at p. 10 that the surveillance videos were “reviewed in their entirety and are summarized in the paragraphs below.” Eight pages of text “summarizing” the surveillance follows. It appears to this Court to be unlikely that Dr. Finkelstein reviewed and summarized all of the surveillance himself, given that the surveillance spans 28.5 hours across six days and that, in total, the plaintiff was surveilled for over 60 hours across eight days. Both plaintiff’s counsel, and this Court, asked the defendants’ counsel how many hours Dr. Finkelstein charged for reviewing surveillance and counsel would not, or could not, answer the question.
(b) At the time Dr. Finkelstein assessed the plaintiff on June 24, 2021, he had not been given any of the surveillance. The supplementary medical brief which contained the surveillance reports and video were prepared on June 25, 2021, as appears from p. 170 of the plaintiff’s motion record.
(c) The Defence had in their possession the defence medical report of the psychiatrist, Dr. Gnam, who opined that his testing did not indicate conscious symptom amplification or fabrication, but failed to serve that report prior to the pre-trial conference. Rule 33.06 requires that a report from medical examination be disclosed “forthwith”. Dr. Gnam’s report, dated August 31, 2021, was not produced for almost five months. Significantly, it was not produced before or at the pre-trial conference on January 18, 2022, at which the defendants relied on Dr. Finkelstein’s report and at which settlement was discussed. It was only disclosed after the Pre-Trial, when requested by plaintiff’s counsel. Defence counsel argued at the hearing of these motions that the withholding of Dr. Gnam’s report had no bearing on the issues because Dr. Gnam was retained by Mr. Buckley on behalf of the defendant Natalie Allan and not by the Lattanzios’ insurer. I disagree and find that it is relevant. It is Dr. Finkelstein’s report that is the subject of the Plaintiff’s motion, and Dr. Finkelstein was jointly retained by the Lattanzio defendants and the defendant Natalie Allen, so the withholding of Dr. Gnam’s report by Ms. Allan’s lawyer raises a red flag as to Dr. Finkelstein’s impartiality.
(d) Rule 53.03 requires the production of all foundational information relied on by an expert. Summaries or drafts provided by HVE constitute foundational information, and I draw an adverse inference from the defendants’ failure to produce them, or to answer questions as to whether they were given to Dr. Finkelstein.
(e) The defendants have resisted HVE and Dr. Finkelstein answering questions about HVE’s involvement in the preparation of Dr. Finkelstein’s report. Defence counsel refused to produce Intact Insurance’s lawyer in advance of the Rule 39.03 examinations;
(f) The defendants have refused to answer basic questions about the interactions between HVE and Dr. Finkelstein. They have refused to advise, among other things, whether HVE was involved in the preparation of drafts of any part of Dr. Finkelstein’s report, whether a draft of his report was prepared prior to his meeting with the plaintiff, and whether HVE made changes to Dr. Finkelstein’s report. If there had been no such documents, the defendants could simply have replied, “No.” The Court draws an adverse inference from the defendants’ failure to answer these questions.
[31] Defense counsel, at the hearing of these motions, submitted that the Court may not draw an adverse inference from a party’s refusal to answer proper questions asked at an examination for discovery as it is open to the questioner to bring a motion to compel the party to answer. I disagree. In Bank of Montreal v. Faibish, 2013 ONSC 2801, D.M. Brown J. stated, at para. 5:
[5] As an initial point, I would observe that in a complex case, such as the present one, in which examinations for discovery involve many witnesses and many counsel, it is incumbent on counsel to see their examinations for discovery through to the end, even if refusals are made along the way. As a general rule, counsel should not interrupt – or abort, as put by BDO’s counsel – an examination prior to its conclusion for the purpose of seeking a “mid-examination” ruling on an objection. Discovery costs would escalate beyond their already high levels were that to be adopted as a common practice. Instead, counsel should cover the areas upon which they wish to examine and then seek a ruling on any refusals, if appropriate. Of course, it is always open to counsel not to pursue refusals and simply ask the trial judge to draw an adverse inference from the refusal made by the opposite party.
[Emphasis added]
[32] In Farrell v. Kavanagh, 2014 ONSC 905, Justice Brown, at para. 9, referred to his practice direction for cases he managed on the commercial list in Toronto, and the adverse inference that could be drawn if a question on discovery was improperly refused.
[33] In Central Lumber Limited v. Gentile, 2019 ONSC 7413, O’Brien J, at trial, stated:
[22] Finally, Mr. Gallo did not produce any documentation in this action. Therefore, he has no proof in support of many of his assertions. For example, although, as further discussed below, he claims to have received invoices from and made payments to 184, there are no documents to substantiate this. Mr. Gallo also refused to answer numerous relevant questions on examination for discovery, or otherwise gave answers that were inconsistent with the evidence at trial. I will make reference to some of his answers below. The overall point is that Mr. Gallo’s obfuscation damages his credibility and, as discussed more specifically below, leads to adverse inferences against him.
[34] In Perera v. Pierre Master Dash, at paragraph 20, on a motion for summary judgment, similarly drew an adverse inference from the improper refusal to answer a question on cross-examination on an affidavit;
[35] “Reasonable suspicion” is not a high bar and, for the reasons stated above, it is met in the present case. The interests of justice support the order sought by the plaintiff on this motion.
Rule 53.03
[36] Rule 53.03 governs the production of expert witnesses’ reports. It provides:
53.03 (1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference scheduled under subrule 50.02 (1) or (2), serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).
(2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information:
- The expert’s reasons for his or her opinion, including, i. a description of the factual assumptions on which the opinion is based, ii. a description of any research conducted by the expert that led him or her to form the opinion, and iii. a list of every document, if any, relied on by the expert in forming the opinion.
[37] In Simons v. Canada (Attorney General), 2018 ONSC 3741, Perell J. stated:
[29] It should be noted that rule 53.03(2.1) is a carefully defined intrusion on litigation privilege, because it requires the expert to disclose, among other things: the instructions provided to the expert in relation to the proceeding; a description of any research conducted by the expert that led him or her to form the opinion; and a list of every document relied on by the expert in forming the opinion.
[Emphasis added]
[38] Referring to White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, Justice Perell stated:
[32] Justice Cromwell's analysis was as follows. An expert witness has a special duty to the court to provide fair, objective and non-partisan assistance. This special duty is comprised of impartiality, independence, and the absence of bias. The expert must be impartial in the sense that he or she is expressing their own unbiased professional objective assessment. The expert must be independent in the sense that his or her opinion is the product of their own, independent judgment based on their own knowledge and judgment and uninfluenced by the litigant who retained them. The expert must be unbiased in the sense that he or she does not favour one litigant's position over another. The fact that an expert is paid by one of the litigant's does not, standing alone, undermine the expert's impartiality, independence, or freedom from bias.
[33] Justice Cromwell stated that a proposed expert witness who is unable or unwilling to comply with these duties is not qualified to give expert opinion evidence and should not be permitted to do so. Concerns about a witness' impartiality, independence, and bias should be addressed as a threshold requirement for admissibility. Absent a challenge, the expert's attestation or testimony recognizing and accepting the duty will generally be sufficient to establish that the threshold test has been met. The burden is then on the party opposing the admission of the evidence to show that there is a realistic concern that the expert's evidence should not be received because the expert is unable or unwilling to comply with the duty. If the opponent meets this burden of showing a realistic concern, then the litigant proffering the witness must demonstrate that the expert is impartial, independent, and unbiased. If this is not done, the expert's evidence, or those parts of it that are tainted by a lack of independence or by impartiality, should be excluded. At para. 49 of his judgment, Justice Cromwell stated:
- This threshold requirement is not particularly onerous, and it will likely be quite rare that a proposed expert's evidence would be ruled inadmissible for failing to meet it. The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court.
[Emphasis added]
[39] Justice Perell, in Simons, refers to the Supreme Court’s decision in Ebrahim v. Continental Precious Minerals Inc., 2012 ONSC 1123, which was written three years before the Court of Appeal released its decision in Moore v. Getahun. He notes, at para. 39 of his reasons, that at the time when Ebrahim was decided, there was an unsettled question in the law and in the profession as to the extent to which litigation privilege is waived when an expert is called to give evidence. He notes that in Ebrahim, Justice D.M. Brown accepted that the implied waiver should be narrowly construed, but found that litigation privilege had been waived in the particular circumstances of that case, where the expert revealed that he did not draft his own report, which was in the form of his affidavit. Justice Perell continued:
[46] In Ebrahim v. Continental Precious Minerals Inc., Justice D.M. Brown concluded that litigation privilege had been waived, and he ordered the production of the communications and the draft affidavits prepared for Mr. Hall. Justice Brown stated at paragraphs 74-75 of his decision:
I accept the cautions voiced by the authors of Sopinka, Lederman and Bryant about the approach that a trial judge, or final hearing judge, should take when considering the scope of the waiver associated with a party placing an expert "in the box" to testify. In the present case I consider the determining factor the answer which Mr. Hall gave on his cross-examination that he did not draft his affidavit. It is unusual, to say the least, to come across an expert who has not drafted his own report, in this case in affidavit form. Mr. Hall's admission that he did not gives rise to issues as to what findings or conclusions in his report originated as his own, or were those of others, and whether the opinion he now ventures, or the information upon which he relies, may have changed from draft to draft, with the drafts prepared by others. Those issues concern the independence and impartiality of the opinion advanced by Mr. Hall to this Court, as well as the weight which should be attached to his opinion.
Accordingly, in light of those specific circumstances, I conclude that by tendering Mr. Hall as an expert witness Continental has waived litigation privilege attaching to any written documentation between Mr. Hall/Kingsdale and Stikeman Elliott, Continental's counsel, regarding Mr. Hall's affidavit or his evidence, including prior drafts of his affidavit report. ….
[47] Ebrahim v. Continental Precious Minerals Inc. was approved of but distinguished in Moore v. Getahun, where the Court of Appeal held that there is no routine obligation to produce draft expert reports and, 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.
[40] The defendant is required to produce the foundational documents upon which Dr. Finkelstein relied in coming to his conclusions. This includes all correspondence between him and HVE Healthcare Assessments. It is not protected by litigation privilege because it is not communication between a lawyer and the expert, to which the safeguard of the lawyer’s professional duty applies. Additionally, as noted above, there is a reasonable suspicion that HVE improperly influenced Dr. Finkelstein.
[41] In BIE Health Products v. Attorney General (Canada), 2018 ONSC 2142, Master C. Wiebe stated:
[19] It is now well established law that if a party intends to call an expert witness, the party must disclose the information on which the expert report is based; see Moore v. Getahun, 2015 ONCA 55, at paragraph 75 (OCA). This “foundation information” has been found to include the information sent to the expert; see Aherne v. Chang, 2011 ONSC 109 at paragraph 85(a). It has been found to include the documents read by the expert and the facts that were disclosed to the expert; see Aherne v. Chang, supra at paragraphs 85(b) and 85(c). It has been found to include the notes, raw data and records of the expert; see Award Developments (Ontario) Ltd. v. Novoco Enterprises Ltd. (in trust) at page 5. It has been found to include the books and journals researched by the expert; see Allen v. Oulahen at page 8.
[42] I find that the documents sought by the plaintiff are foundational documents not covered by litigation privilege and must be produced.
CONCLUSION AND ORDER
[43] This Court orders that:
The defendants shall forthwith produce to the plaintiff the records HVE Healthcare Assessments ("HVE") and Dr. Joel Finkelstein as they relate to this action, except for communications covered by solicitor-client privilege, including: (a) summaries and notes provided by HVE to Dr. Finkelstein; (b) drafts provided by HVE to Dr. Finkelstein; (c) documents provided by HVE to Dr. Finkelstein; (d) communications between HVE and Dr. Finkelstein; and (e) revisions made by HVE to Dr. Finkelstein in relation to his report, or suggested made by HVE in that regard;
The defendants shall pay to the plaintiff her costs of this motion in an amount to be agreed upon or fixed by the Court. If the parties are unable to agree on the amount of costs, they shall submit written argument, not to exceed 4 pages, and their Costs Outlines, by March 31, 2022, by filing them on the JOS portal, up-loading them to CaseLines, and sending a copy to my Judicial Assistant.
(Signature of Judge) Price J.
Release: March 21, 2022