COURT FILE AND PARTIES

COURT FILE NO.: CV-10-0249

DATE: 20130712

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ANGELINA BAILEY, Possessory Claimant

AND:

GERALD HARRY BARBOUR, Objector

BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY

COUNSEL:
I. de Rijcke and S. Fairley, Counsel for the Possessory Claimant

J.E. Streisfield, Counsel for the Objector

HEARD: June 26, 2013

ENDORSEMENT

[1] Mr. Stewart is an Ontario Land Surveyor who was permitted to provide expert evidence on behalf of the Objector (“Barbour”) in this proceeding. He was qualified to provide expert opinion testimony with respect to general surveying within the knowledge and expertise of an Ontario Land Surveyor or Canada Land Surveyor, including boundaries of riparian properties. By mid-trial motion, the Possessory Claimant (“Bailey”) sought an order that Mr. Stewart be compelled to produce copies of all email communications exchanged between he and Barbour’s counsel, Mr. Streisfield, during this trial. Bailey sought a further order directing that Mr. Stewart and/or Mr. Streisfield produce a copy of any handwritten notes passed from Mr. Stewart to Mr. Streisfield during this trial.

[2] The genesis of this motion arose during the cross-examination of Mr. Stewart by Bailey’s counsel, Mr. de Rijcke, on May 27, 2013. Mr. de Rijcke had previously alerted the Court and opposing counsel that his closing argument would include submissions with respect to Mr. Stewart’s lack of impartiality.

[3] Although this trial commenced on March 4, 2013, the sittings of this trial had occurred over ten days as of May 27, with gaps between sitting days due to scheduling issues.

[4] The decision to allow this mid-trial motion to be heard was made on the basis that Mr. Stewart’s initial evidence under cross-examination conveyed an involvement in this proceeding beyond that expected of an expert witness, and necessitated further exploration of his role in this litigation in order that the Court be in a position to properly evaluate his evidence.

[5] During his cross-examination on May 27, Mr. Stewart confirmed that he had attended court for all ten of the trial days, except for a half day. He also estimated that he had had more than 50 and possibly a 100 or more email exchanges on this file with Mr. Streisfield since this trial began. Mr. Stewart confirmed that he had passed handwritten notes to Mr. Streisfield during the trial, which he estimated to be two or three at most. He confirmed that he was also present during the entirety of prior proceedings, and was seated at the counsel table with Mr. Streisfield at an earlier hearing before the Deputy Director of Titles and during a previous trial in the Superior Court of Justice. During this trial he has been seated at counsel table behind Mr. Streisfield throughout. He confirmed that he sometimes suggests questions to Mr. Streisfield to be put to witnesses, even lay witnesses, or suggests exhibits to be relied upon during questioning. During the trial it has been apparent that he has had a familiarity with the location and content of various documents and exhibits equal to that of Mr. Streisfield’s, and has assisted counsel in that regard. When asked to give his response to the opinion evidence of Bailey’s expert, Mr. Brubacher, his response was to state unequivocally that Mr. Brubacher’s opinions were wrong, and he was left wondering “if it was artifice or incompetence, and whether he has an understanding of Lake Huron at all.” He went on to state that there were errors in Mr. Brubacher’s statistical analysis of water levels, and that Mr. Brubacher had no understanding of what statistics are all about. He concluded his initial comments with the conclusion that Mr. Brubacher’s evidence “was not helpful”. During that same testimony he described the role of the surveyor to be that of a “quasi-judicial function”, in that the opinions given had to be based upon evidence and case law precedent. When asked during cross-examination whether he thought that Bailey had no right to the Part 2 lands in question in this proceeding, his answer was that he had seen no evidence of use or right to possession other than use of a roadway, during all of the time that he has been involved in this matter. His expertise is not, of course, in the area of adverse possession or any other legal doctrine, but restricted to determinations of property boundaries and description.

[6] Over Mr. Streisfield’s objections, on May 27, this Court ordered that the emails in question and the notes, if available, were to be brought to court on the day for argument of the motion. Mr. Stewart was ordered to resend all of the emails of his communications with Mr. Streisfield from March 4 to May 27 inclusive, without further communication while he remained under cross-examination. A timetable was set for exchange of the motion, evidence and facta, and provision was made in that endorsement to permit Barbour to call viva voce evidence in reply to the motion.

[7] By the return of the motion on June 26, 2013, Mr. Streisfield had located and produced two notes written by Mr. Stewart and given to Mr. Streisfield during the course of the trial.[^1] Mr. Streisfield also produced a factum containing a list of 41 emails or email strings (collectively the “emails”) at Schedule “D” to his factum. Thirty-six of those emails he did not object to producing, and had in fact produced to opposing counsel prior to the argument of the motion. However, he asserted privilege with respect to emails numbered 2, 3, 8, 9 and 10, the first on the basis of solicitor and client privilege, and the remaining four on the basis of litigation privilege and/or what has been referred to as the lawyer’s work product doctrine.

[8] A voir dire was conducted, with Mr. Streisfield calling Mr. Stewart to give evidence concerning the emails. On cross-examination during that voir dire, it became apparent that there were additional emails exchanged within the month of March that had not been produced. Mr. Stewart explained that this was due to inadvertence on his part. A recess was held so that the additional emails could be printed and collected.

[9] The first collection of emails, with a commencement date of April 4, 2013, were marked as exhibit 2 on the voir dire.[^2]

[10] The second collection of emails, with a commencement date of March 14, 2013, were marked as exhibit 3 on the voir dire.[^3]

[11] I then conducted a review of the emails to determine the merits of any claims for privilege, as Mr. Streisfield had not provided the court with any evidence upon which to give the court a basis for not examining the documents.

[12] With respect to exhibit 2, I found that none of the emails numbered 2, 3, 8, 9 or 10 were protected by privilege, and therefore the entirety of the emails were entered into evidence on the voir dire. Further details of these emails are set out below:

No. 2: This email contains only one communication between Barbour and Mr. Streisfield, which consists of Mr. Streisfield reporting factually to his client on some details of a telephone conference held between the Court and counsel on April 5, 2013. All of the information contained within that message was discussed during the telephone conference. It contains no advice or private information of the sort to which solicitor-client privilege would attach.

No. 3: The bulk of the communications within this string all include opposing counsel or the trial co-ordinator and accordingly are not privileged. The final email in this string consists of an email from Mr. Stewart to Mr. Streisfield in which he asks “what does potential frailties of photographic evidence mean?” This question was not responded to by Mr. Streisfield, and does not convey information of the type to be protected by litigation privilege or the lawyer’s work product doctrine.

No. 8: This string contains exchanges of information between Mr. Stewart and Mr. Streisfield which could form the basis of opinion evidence, even if not an opinion with respect to boundaries. It is highly relevant to the issue of Mr. Stewart’s involvement in the file. The subject matter concerns the expert opinion report of Mr. Brubacher, which Mr. Stewart characterizes in an email as “a load of BS”, and writes “My guess is that he has never given expert evidence in court before, and Izaak has not told him that he cannot protect him from cross-examination. He thinks that he can get away with this crap.” In that same string, he goes on to speak of litigation strategy with respect to Mr. Brubacher’s report, asking Mr. Streisfield whether there is a negative implication in “fighting it”, and if so, he suggests that “perhaps we could sit down and think whether we can actually make hay with Brubacher before we try to block it. Not that I think he really has much to contribute…”.

No. 9: This string likewise deals with the Brubacher report primarily, and provides information regarding the basis upon which Mr. Stewart may have reached the conclusions provided to this court. Again he engages in strategic discussions with Mr. Streisfield, which include comments such as “Also, I note that neither his CV nor his Acknowledgment indicate that, even though he is an OLS, he is not qualified to speak to boundary issues. In my view, under the circumstances, this may well be an issue for complaint to the AOLS. He is essentially commenting on boundary issues (already res judicata), but he is not qualified to do so. I have no problem with him talking about statistical analysis (his analysis is nonsense, in my view, by the way), but he went too far in giving an opinion about “slow and imperceptible”. In any event, such comments should be removed from his report”.

No. 10: These are communications between Mr. Stewart and Mr. Stewart’s professional colleagues. Mr. Streisfield is included in that email string only in the final communication. These communications speak to information forming the basis for an expert opinion, even if not an opinion with respect to boundaries and again, are probative of the issue of expert witness bias. In one email, Mr. Stewart writes to a colleague: “Technically, the rules of civil procedure do not allow experts’ reports to be tendered after commencement of a trial, except by consent. However, in the event the judge allows this, we are considering what to do with it.” He also notes, to that same colleague, that “I am intensely involved with this trial, and don’t understand exactly what he’s doing either”.

[13] With respect to exhibit 3, as indicated in my handwritten endorsement on June 26, in chambers I reviewed the further email correspondence produced by Mr. Stewart and separated those into two categories. The first contained emails protected by a solicitor-client privilege that either do not include Mr. Stewart or those which I believe do not indicate that privilege was waived, as well as emails in which Mr. Stewart is not a participant. This group of emails was collectively marked as a lettered exhibit and sealed due to the privilege, only to be opened by Court order.

[14] With respect to those emails to which I believe solicitor-client privilege would attach, I explained to the parties and counsel that they appear to have come into the possession of Mr. Stewart in a manner that did not convince me could be characterized as a waiver by Mr. Barbour of that privilege. The email string would for example, initially include exchanges between Mr. Barbour and his counsel, and then Mr. Streisfield would add Mr. Stewart to the string in the next communication regarding a matter that did not relate to the prior communication with Mr. Barbour. No objection was taken by counsel for Bailey to the Court’s approach.

[15] The balance of the documents in exhibit 3 were emails that included Mr. Stewart, which I do not accept are protected by any of form of privilege. They speak to information that may have formed the basis for Mr. Stewart’s opinions before this Court, even if those opinions are not with respect to boundary issues. Even if I am incorrect with respect to that conclusion, I nonetheless have exercised my discretion to permit them to be entered into evidence as I found that they are probative of the issue of the extent of Mr. Stewart’s participation in the presentation of the Barbour’s case.

[16] I then indicated to the parties that more complete Reasons would be forthcoming for the decisions made with respect to this motion.

The Role of the Expert Witness

[17] It is a trite principle of trial procedure that an expert witness should provide independent assistance to the court and should never assume the role of advocate. This is an easy principle to articulate, but the inherent conflict that experts are in as a result of their unique position has historically created tension within the litigation arena. Experts are sought out and paid because they are able to generate evidence and reach conclusions that support the interests of the party who retains them. And yet, as stated by Lord Wilberforce in The Ikarian Reefer (1993), 2 Lloyds Reports 68, “It is necessary that expert evidence presented to the court should be and should be seen to be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation”.

[18] The most important thing for an expert to retain throughout the litigation process is a position of distance from the interests of the party who engages them, in order that his or her impartiality remains intact. By contrast, the worst thing for an expert to devolve into is advocating for his client’s view, or to become a champion for his client’s cause. It is only where the expert can reliably be seen by the Court to have reached his opinions through an objective and neutral lens that his evidence can have potential value to the Court. The evidence of an expert who advocates for a client’s position, simply because it is his client’s position, loses considerable value and will ultimately be a waste of the Court’s time if rejected outright due to partisanship.

[19] In order to make the role of the expert more clear than it may have been in the past, Rule 4.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 came into effect on January 1, 2010, which sets out the duty of the expert witness in the following terms:

DUTY OF EXPERT

4.1.01 (1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,

(a) to provide opinion evidence that is fair, objective and non-partisan;

(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and

(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.

(2) Duty Prevails – The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.

[20] This rule lays to rest any debate over the priority of the expert witness’ duty to the court that may have existed prior to its enactment. As a further safeguard, experts are required to sign an acknowledgment of expert’s duty, and include such acknowledgement in any report prepared by him pursuant to Rule 53.03(2.1).

[21] Accordingly, the issue of an expert’s objectivity or lack thereof is an important one for a court to fully appreciate. Experts increasingly provide the very foundation for a party’s case, and therefore the court must know all of the bases upon which opinion evidence has been formed, including potential bias created by becoming the ‘expert advocate’.

[22] The emails that this Court has reviewed and permitted to be entered into evidence reveal that Mr. Stewart does not understand his duty to the Court, even though he has signed a Form 53, and that he has radically departed from the arena of impartial professional. He has become an advocate for Barbour’s cause.

[23] What to do in relation to Mr. Stewart’s evidence is something that the Court will have to grapple with in reaching a decision in this case, and now is not the time to do it. The determination of the extent of Mr. Stewart’s bias, and whether it is sufficient to affect only weight as opposed to admissibility, should not be made without considering all of Mr. Stewart’s evidence in the context of the totality of the evidence given at trial by all witnesses.

Litigation Privilege and the Lawyer’s Work Product Doctrine

[24] Mr. Streisfield objected to the production of the emails on the basis of privilege. I have already dealt with the issue of solicitor and client privilege, and found it non-existent with respect to No. 2 of exhibit 2. None of the additional documents should have been held from the Court’s review on the basis of either litigation privilege or on the basis of the lawyer’s work product doctrine.

[25] First and foremost, even if I am incorrect that these emails are not protected, their disclosure and entry into evidence is nonetheless justified by what I view as a higher priority – which is to expose expert witness bias when the evidence is probative of that issue. The law permits that such disclosure be ordered despite litigation privilege where necessary for procedural fairness: Blank v. Canada (Minister of Justice), 2006 SCC 39; General Accident Assurance Company v. Chrusz, 1999 7320 (Ont. C.A.)

[26] The facts underlying the expert’s conclusions and opinions is vital information for opposing counsel and the Court, as they allow all parties to understand the foundation for the expert’s opinion. For opposing counsel, such facts are crucial for purposes of cross-examination; for the Court, such facts are crucial for a full and fair evaluation of the strength of the expert’s opinion.

[27] Any line of authority that may have historically existed to protect such foundational facts from being exposed on the basis of litigation privilege has been supplanted by a more commonly accepted line of authorities, which allows for the waiver of privilege attaching to all facts and premises that are in the expert’s file and which have influenced the expert’s opinion or served as a basis for the expert’s conclusions, once that expert is called to testify: Piché v. Lecours Lumber Co. (1993), 1993 8624 (ON SC), 13 O.R. (3d) 193 (Gen. Div.); Jesionowski v. Gorecki, 1992 2393 (FC), [1993] 1 F.C. 36 (T.D.), var’d 159 N.R. 238 (F.C.A.); Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham, [1996] O.J. No. 4420 (Gen. Div.); aff’d 2000 16946 (ON CA), 138 O.A.C. 201 (C.A.); Aherne v. Chang, 2011 ONSC 3846; Imperial Oil Limited v. Oakville (Town), 2012 ONSC 6933; Conceicao Farms Inc. v. Zeneca Corp., 2006 31976 (Ont. C.A.); Browne (Litigation Guardian of) v. Lavery, 2002 49411 (Ont. S.C.).

[28] I note that the cases relied upon by the Barbour’s counsel, Genier v. CCI Capital, 2008 1175 (Ont. S.C.) and Johnston v. Charlottetown Area Development Corporation, 2004 PESCTD 73, did not involve disclosure of communications with or by expert witnesses, which takes those cases outside of the factual situation with which this Court was faced.

[29] In the same vein, Barbour’s counsel argued that the lawyer’s brief rule, or work product doctrine, should apply to safeguard the fruits of his labour from falling into the hands of opposing counsel. In Johnston v. Charlottetown, this doctrine is discussed and MacDonald J. refers to the text Solicitor-Client Privilege in Canadian Law where the authors set out the rationale, at p. 108. Quoting from Hodgkinson v. Simms (1988), 1988 181 (BC CA), 55 D.L.R. (4th) 577:

…The court observed that it is “highly desirable to maintain the sanctity of the solicitor’s brief which has historically been inviolate”.

In my view the purpose of the privilege is to ensure that a solicitor may, for the purpose of preparing himself to advise or conduct proceedings, proceed with complete confidence that the protected information or material he gathers from his client and others for this purpose, and what advice he gives, will not be disclosed to anyone except with the consent of his client.

[30] While there can be little argument with the purpose and importance of that doctrine, Barbour's counsel has not presented the court with any authorities that suggest that it would triumph over the previously described line of authorities. Those authorities support, with good reason, relaxed disclosure requirements for communications between a solicitor and an expert witness for the purpose of the development of those opinions that he or she ultimately relays to the Court.

Timing of the Motion

[31] Barbour's counsel argued that, having cross examined Mr. Stewart on his qualifications and thereafter consenting to Mr. Stewart being qualified as an expert witness, it was too late for Bailey’s counsel to subsequently raise the issue of bias and request disclosure of communications on that basis. Given that Mr. de Rijcke had raised the issue of bias prior to Mr. Stewart taking the stand, Mr. Streisfield argued that any challenge to Mr. Stewart's objectivity should have been made and dealt with at the time that he was being qualified to give expert testimony. He argued that it is an abuse of process to permit subsequent requests for information to demonstrate impartiality, when Bailey had already consented to having Mr. Stewart qualified to give expert testimony.

[32] In hindsight, it might have been more efficient to have questioned Mr. Stewart on issues of bias during the qualification stage, as opposed to the cross-examination stage. However, not doing so cannot be seen as fatal to a party’s rights to challenge on the basis of bias at a later stage. It is sometimes the case that a party innocently consents to the expertise of a witness, but that their impartiality is not exposed until cross-examination. In this case Mr. de Rijcke was alive to the issue of impartiality, but the full extent of Mr. Stewart’s involvement in this case was only revealed once cross-examination was undertaken. To permit the issue to be explored in one scenario, but not the other, is unjustifiable. It would be a miscarriage of justice, in my view, to disallow exploration of bias at any stage of the expert’s testimony, given the importance of this issue to the Court’s truth-finding function.

[33] For all of the foregoing reasons, including those in this Court’s handwritten endorsement dated June 26, 2013, the Claimant’s motion was granted.

HEALEY J.

Date: July 12, 2013

[^1]: Marked as exhibit 1 on the voir dire, and later as trial exhibit 30.
[^2]: These emails were eventually marked as trial exhibit 31.
[^3]: These emails were eventually marked as trial exhibit 32.