SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-06-CV319707

MOTION HEARD: NOVEMBER 8, 2012

RE: Imperial Oil Limited, Imperial Oil, a partnership of Imperial Oil Limited and McColl-Frontenac Petroleum Inc., plaintiffs

AND:
The Corporation of the Town of Oakville, Joseph Benjamin Rutledge, Donald B. Rutledge, Squire Root Investments Limited, Howard Allan Burnstein, Jo-Anne Ethel Burnstein, Chisholm Educational Centres Inc., 535698 Ontario Limited, ServiceMaster Clean and Service Master of Oakville, defendants

BEFORE: Master R.A. Muir

COUNSEL:
Natalie K. Mullins for the moving parties/plaintiffs

Scott E. Hamilton for the responding party/defendant The Corporation of the Town of Oakville

REASONS FOR DECISION

[ 1 ] This is a motion brought by the plaintiffs pursuant to Rules 31.06 and 34.15 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”).The plaintiffs seek an order requiring the defendant The Corporation of the Town of Oakville (“Oakville”) to answer undertakings and questions refused on its representative’s examination for discovery. A number of the issues on this motion were resolved prior to argument. However, the parties were unable to resolve several of the plaintiff’s production requests and those issues were argued before me on November 8, 2012.

THE MOTION

[ 2 ] On this motion the plaintiffs are seeking production of the following documents:

(a) copies of all reports, and all findings, opinions and conclusions, of Golder Associates Ltd. (“Golder”), an expert witness retained by Oakville;

(b) a copy of a letter dated August 4, 2010 from Altus Group Limited (“Altus”) to Golder; and,

(c) copies of email correspondence over which Oakville is claiming privilege, and as referenced as items 12 and 13 on Schedule B to Oakville’s supplemental supplemental affidavit of documents sworn June 26, 2012.

[ 3 ] The plaintiffs take the position that the rules and the authorities require that all of these documents must be produced given that Oakville has advised that Golder will be called as a witness at trial in order to provide expert opinion evidence for the assistance of the court.

[ 4 ] Oakville takes the position that all of Golder’s relevant reports, findings, opinions and conclusions have been provided to the plaintiffs and that nothing further is required to be produced. In addition, Oakville has undertaken not to call Altus as an expert witness at trial and therefore the Altus letter of August 4, 2010 need not be produced. Finally, Oakville takes the position that the email exchanges over which it is claiming privilege are not relevant to the issues dealt with in the Golder reports. Oakville states that those communications deal only with the Altus issues and remain privileged given that Oakville has given an undertaking not to call Altus as a witness at trial.

BACKGROUND

[ 5 ] The plaintiffs have brought this action for damages and other relief relating to the contamination of their property located at 445 Trafalgar Road in Oakville (the “Property”). Two of the issues to be determined in this action relate to the appropriate method and cost of remediating the Property and what affect the contamination has had on the value of the Property.

[ 6 ] Oakville retained Golder to provide it with expert evidence with respect to the issues relating to the remediation of the Property. Oakville retained Altus to provide expert evidence with respect to the affect the contamination has had on the value of the Property. Oakville will be calling Golder as an expert witness at trial. Oakville has undertaken not to call Altus as an expert witness at trial.

ANALYSIS

[ 7 ] Rule 31.06(3) states as follows:

(3) A party may on an examination for discovery obtain disclosure of the findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined that are relevant to a matter in issue in the action and of the expert’s name and address, but the party being examined need not disclose the information or the name and address of the expert where,

(a) the findings, opinions and conclusions of the expert relevant to any matter in issue in the action were made or formed in preparation for contemplated or pending litigation and for no other purpose; and

(b) the party being examined undertakes not to call the expert as a witness at the trial.

[ 8 ] The requirement in Rule 31.06(3) for disclosure of an expert’s “findings” has been given a very wide meaning. It has been interpreted to include all documents, videotapes, photographs and any other information provided to the expert witness. See Aherne v. Chang, 2011 ONSC 3846 at paragraph 21. The applicable principles were summarized by Master Short in his decision at first instance in Aherne [^1] at paragraph 85 as follows:

(a) if information is sent to an expert, then the same information should be sent to the opposing party to allow that party to test the expert’s opinion;

(b) an opposing party is entitled to the facts on which the expert’s opinion is based;

(c) so long as an expert read a document sent to him or her, then that document was considered, such that it is a “finding” that must be produced.

[ 9 ] It is also important to bear in mind the provisions of Rule 53.03(2.1) which require, among other things, that any expert report include “the instructions provided to the expert in relation to the proceeding”.

[ 10 ] I am also mindful of the following statements of principle that have been enunciated by the Supreme Court of Canada:

● it is not open to a party to pick and choose what portions of expert evidence it chooses to disclose; and,

● once an expert witness takes the stand he/she can no longer be characterized as offering private advice to a party – he or she is offering an opinion to assist the court and the opposing party must be given access to the foundation of such opinions to test them adequately. [^2]

[ 11 ] In my view, it is clear from the authorities that the Rules require broad and early disclosure of an expert’s opinions, findings and conclusions. Such disclosure is necessary in order to allow the opposite party to test the expert’s opinions well in advance of trial. Such a policy promotes the just, most expeditious and least expensive determination of civil proceedings, as referenced in Rule 1.04(1).

GOLDER

[ 12 ] Oakville has confirmed that Golder will be called as an expert witness at trial to provide assistance to the court. As a result, Oakville can no longer expect to use Golder to offer private advice. Its advice is for the benefit of the court and its findings, opinions and conclusions must be provided to the plaintiffs in their entirety. I reject Oakville’s argument that there remains a “zone of privacy” over its communications with Golder, given that Oakville has confirmed that it will be calling Golder as an expert witness at trial. In my view, such an argument is inconsistent with the Supreme Court’s decision in R. v. Stone cited above. If Oakville wishes to seek private advice, it will need to look elsewhere.

[ 13 ] Golder has prepared a table setting out the reports and documentation it has prepared between July 2008 and March 2012. It appears that the plaintiffs have been provided with copies of all of these documents other than the technical memoranda dated August 19, 2010 and March 13, 2012. I was provided with copies of those documents on a confidential basis at the conclusion of the argument of this motion. I have reviewed the contents of those memoranda and I am satisfied that they deal with the very issues upon which Oakville has indicated it will be calling Golder as an expert witness at trial. They are clearly findings, opinions and conclusions of an expert witness. I am therefore ordering that copies of those memoranda be provided to the plaintiffs.

[ 14 ] I would also note that in answering undertaking 5 on the plaintiffs’ chart, Oakville has made specific reference to the Golder memorandum of March 13, 2012. For this reason as well, that memorandum must be disclosed.

THE ALTUS LETTER

[ 15 ] The August 4, 2010 Altus letter is in a different category, however. Oakville has undertaken not to call Altus at trial. Therefore, it need not disclose any of the Altus findings, opinions and conclusions. However, in Golder’s report dated August 12, 2010, which has been disclosed by Oakville, Golder refers to the Altus letter of August 4, 2010 and appears to have reviewed the letter, at least in part, in order to prepare its August 12, 2010 report. Moreover, Oakville’s lawyer specifically asked Golder to review certain portions of the Altus letter in his email to Golder of August 6, 2010. As set out above, so long as an expert read a document sent to him or her, then that document was considered, such that it is a “finding” that must be produced. See Aherne (Master) at paragraph 85. It is clear from Golder’s report of August 12, 2010 that Golder read the Altus letter that was sent to it by Oakville’s counsel as part of preparing its report. Moreover, it is my view that the Altus letter also constitutes instructions to Golder. Oakville’s lawyer simply sent an email to Golder attaching the Altus letter and asked Golder to review a portion of the Altus letter and prepare a response to certain questions raised by Altus in its letter. The Altus letter was effectively used by Oakville as a letter of instructions to Golder. Rule 53.03(2.1) therefore also requires disclosure.

[ 16 ] However, it is my view that the entire Altus letter does not need to be disclosed. The email from Oakville’s lawyer specifically directed Golder to Altus’ “bullet points set out on the top half of page 3” of the letter. I have reviewed the confidential copy of the letter provided to me and it is clear that this is the only part of the letter relevant to the Golder opinion. The balance of the letter deals with issues relating to the affect the contamination may have had on the value of the Property. To order disclosure of the entire letter would, in my view, allow the plaintiffs to obtain disclosure of privileged communications between Altus and Oakville. Such disclosure is not required given Oakville’s undertaking not to call Altus as a witness at trial. I am therefore ordering that Oakville provide the plaintiffs with a partial copy of the Altus letter beginning with the last sentence on page 2 of the letter (“The opinion . . .”) and ending with the seventh and last bullet point on page 3 (“the probability . . .”). The balance of the Altus letter need not be produced.

THE EMAIL CORRESPONDENCE

[ 17 ] As indicated above, the plaintiffs also seek production of certain email correspondence exchanged among Oakville’s lawyer, Golder and Altus. There are two sets of email exchanges in issue: email correspondence between August 6, 2010 and August 19, 2010 and email correspondence between February 2, 2011 and February 18, 2011. I have reviewed the copies of this email correspondence that were provided to the court on a confidential basis. In my view, the information in the emails in question clearly falls into one or both of the following categories: a) Golder’s findings, opinions and conclusions; b) information sent to Golder. Either way, copies of the emails must be provided to the plaintiffs and I so order.

CONCLUSION

[ 18 ] Oakville has advised that the table prepared by Golder, and found at Tab 1B of Oakville’s responding motion record, lists all reports and documentation prepared by Golder between July 2008 and March 2012. That being so, the production by Oakville of the August 19, 2010 and March 13, 2012 technical memoranda, the ordered excerpt from the Altus letter and the subject email correspondence, will constitute proper compliance with all disputed undertakings, under advisements and refusals. Of course, to the extent that further documentation is discovered or produced that would constitute Golder’s findings, opinions and conclusions or information sent to Golder, such documentation must also be produced.

OTHER ISSUES

[ 19 ] Finally, Oakville does not oppose an order that it answer undertakings 1 and 2 as listed on the plaintiffs’ chart. The parties are also agreeable to a minor adjustment to the current court ordered timetable.

ORDER

[ 20 ] I therefore order as follows:

(a) Oakville shall provide the plaintiffs with copies of the Golder technical memoranda dated August 19, 2010 and March 13, 2012 within 45 days;

(b) Oakville shall provide the plaintiffs with a copy of an excerpt from the Altus letter of August 4, 2010 beginning with the last sentence on page 2 of the letter (“The opinion . . .”) and ending with the seventh and last bullet point on page 3 (“the probability . . .”) within 45 days;

(c) Oakville shall provide the plaintiffs with copies of the email correspondence referenced as items 12 and 13 on Schedule B to Oakville’s supplemental supplemental affidavit of documents sworn June 26, 2012 within 45 days;

(d) Oakville shall answer undertakings 1 and 2 on the plaintiffs’ chart within 45 days;

(e) the disputed documents provided to the court by Oakville on a confidential basis shall be treated as confidential, sealed and not form part of the public record;

(f) mediation shall take place by April 1, 2013;

(g) this action shall be set down for trial by April 30, 2013, failing which it shall be dismissed by the registrar without further notice; and,

(h) if the parties are unable to agree on the issue of costs, they may make brief written submissions by no later than January 11, 2013.

Master R. A. Muir
Date: December 5, 2012

[^1]: 2011 ONSC 2067 (Master).
[^2]: R. v. Stone, 1999 SCC 688, [1999] 2 SCR 290 at paragraphs 98 and 99.