SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 10-47821

DATE: 2013/12/23

RE: Daniel Palma et. al. , Plaintiffs

AND:

Elizabeth Jane Reeb, Defendant

BEFORE: MASTER MACLEOD

COUNSEL:
William J. Sammon, for the Plaintiffs

Christopher Reil, for the Defendants

HEARD: November 12th, 2013

ENDORSEMENT

[1] There are two motions before the court. The first is a motion to set aside the dismissal order issued by the Registrar. The second (which is only necessary if the first order is granted) is a motion for production of an accident reconstruction report.

Setting Aside the Dismissal Order

[2] Dealing firstly with the motion to set aside the dismissal order, there is no doubt that the error made by Ms. Stewart in permitting the dismissal was inadvertent.

[3] This action had been the subject of a status notice and counsel had agreed to a status hearing in writing. The timetable agreed between the parties would have required the action be set down for trial by July 31, 2013 but (presumably because subrule 48.14 (11) (c) limits the extension that can be granted by a status hearing in writing) the order issued by the court set the deadline as June 1, 2013. The Registrar dismissed the action without further notice pursuant to Rule 48.14 (5). The new date had not been diarized and it passed without being noticed.

[4] There is no prejudice to granting the order. Despite the dismissal the parties continued with discovery and it was assumed there would be consent to set the order aside. It appears that consent was withheld because of the issue giving rise to the second motion. On September 3rd, 2013 counsel for the defendant advised he would only consent to set aside the dismissal if the plaintiff released a copy of an accident reconstruction report over which litigation privilege had been claimed.

[5] This motion was then brought promptly and there is no evidence the defendant will be prejudiced by now setting aside the dismissal order. Accordingly the test for setting aside the dismissal order is met and there will be an order granting the motion.

Production of the Williamson Report

[6] Turning now to the second motion, the report in question is an accident reconstruction report which was completed by Peter Williamson at the request of the plaintiff’s insurance company, the Co-operators. In order to complete that reconstruction report, Mr. Williamson apparently accessed the air bag module from the wreck of Mr. Palma’s vehicle as well as taking measurements and observations at the scene of the accident. The air bag module contained information regarding the speed of the vehicle and whether the brakes were applied at the time of the collision.

[7] It is clear that several documents exist or existed. The first of these is the Williamson report itself. The second is the module which would also qualify as a “document” under Ontario rules. Thirdly it is clear that to prepare his report Mr. Williamson made observations and took measurements. Those underlying tests, measurements and observations would also have generated potentially relevant documents.

[8] It is not clear from the evidence why the plaintiff’s insurer retained Mr. Williamson. It may have been for purposes of investigating and adjusting the first party claim or it may have been a report prepared in contemplation of litigation. In any event a copy of the report was provided to Mr. Sammon for his use in this litigation. Mr. Sammon has claimed that the copy in his possession is subject to litigation privilege and has refused to produce it.

[9] The report was previously produced in the context of a highway traffic act prosecution in which Daniel Palma was charged with failing to yield the right of way under s. 139 (1) of the Act. The report had been produced by Mr. Palma’s representative to the Provincial Prosecutor and Mr. Williamson was called as a witness at the trial. Mr. Palma was ultimately acquitted.

[10] The Williamson report is a report containing the results of a series of tests and investigations and Mr. Williamson’s conclusions. It is an expert opinion and it is in the possession of counsel for the plaintiff. Rule 31.06 (3) provides that the plaintiff must disclose the findings, opinions and conclusions of an expert engaged by him or on his behalf unless a) the findings, opinions and conclusions were for the purpose of litigation and “for no other purpose” and b) the plaintiff “undertakes not to call the expert as a witness at trial”. It is not enough, as Mr. Sammon has done to advise that “he has no intention of calling Mr. Williamson”. He must undertake not to do so.

[11] Rule 31.06 (3) operates as an exception to litigation privilege. The rule imposes an extremely high threshold for keeping an expert opinion secret. In fact the test under the rule is completely separate from the test for litigation privilege. Opinions subject to the rule may or may not be covered by litigation privilege. It does not matter. The opinion must be disclosed whether or not litigation privilege would apply unless both branches of the statutory test are met.

[12] On the other hand if litigation privilege does apply, there is authority that the rule is concerned with disclosure of information and not with documentary production.[^1] That is the findings and conclusions must be disclosed but the report itself may not necessarily have to be. While something of a hair splitting distinction there are circumstances in which the report itself may be privileged because it meets the dominant purpose test but the contents of the report must be disclosed under Rule 31.06 (3).

[13] That is not the case here. The report was not prepared for Mr. Sammon’s office and he does not claim that Co-operator’s prepared the report for purposes of this litigation or for related litigation. Moreover the report has already been released and put in evidence in the context of the HTA prosecution. Accordingly the original report is not subject to any kind of privilege.

[14] Mr. Sammon appears to be relying on the very technical and narrow argument that the copy in his file is privileged because it is a document gathered by him for the purpose of litigation. The original would be in the possession of Mr. Williamson and there is a copy in the possession of Co-operators. This question of whether a copy of a document that is otherwise available can be subject to litigation privilege was debated in the General Accident[^2] decision and in Blank v. Canada.[^3] Currently the law in Ontario is that a copy of a document that is not privileged is not privileged though the Supreme Court of Canada has signaled that in a correct case this issue may have to be reviewed. The Court of Appeal in British Columbia has apparently come to the opposite conclusion.

[15] The plaintiff has stated that the Williamson report is not its document and has invited the defendant to obtain a copy from Co-operators or from Mr. Williamson. The problem is that while the plaintiff has written to Co-operators to state that it does not object to production of the report, he has also stated that he does not consent. Not surprisingly therefore Co-operators has not responded to the production request.

[16] Quite frankly this debate is rather silly. Even if Mr. Sammon’s copy of the report is privileged it is pointless to make the defendant bring a motion to obtain the report from Co-operators or from Mr. Williamson or both. There is no benefit to the plaintiff in failing to co-operate with counsel for the defendant by making the report available. On the other hand, it is not just the report that is important. The defendant would be entitled to production of the air bag module and the original findings and tests conducted by Mr. Williamson if they are relevant to issues in this litigation. Had he believed these documents were critical, the defendant should have taken steps to obtain them from the non parties some time ago.

[17] In fairness there was such a motion but it was not brought until June of this year. A motion to answer undertakings somehow wound up in front of Justice McLean. This was quite clearly a motion within the jurisdiction of the master and in accordance with Rule 37.04 should have been made “to the court” and not to a judge. In any event there was dispute about the Williamson report and McLean J. adjourned that portion of the motion so that the defendant could seek the report directly from Mr. Williamson. I do not agree that McLean J. remained seized of the issue nor that bringing the motion now is an abuse of process. Justice McLean specifically declined to rule one way or the other on the question of production. The question of privilege was not argued before him.

[18] In my view the plaintiff is obliged to produce the Williamson report because the report is not privileged and the copy in Mr. Sammon’s file is not privileged. The plaintiff could have been asked to obtain the module and the original test results from Co-operators or from Mr. Williamson and if the plaintiff could not or would not do so then the defendant could have brought a motion or motions under Rules 31.10 and 30.10.

[19] The plaintiff has indicated that Mr. Williamson is not the plaintiff’s expert. There is no property in a witness even an expert and accordingly the defendant may approach Mr. Williamson directly. If Mr. Williamson believes he cannot speak to counsel for the defendant without a court order because of his contractual obligation with Co-operators then (assuming the defendant believes it is important enough to do so) a motion may be brought.

[20] I find that the plaintiff is to produce the Williamson report and the defendants may seek the source documents (including the module) and tests from Mr. Williamson or from Co-operators or both.

Summary, conclusion & costs

[21] In summary the motion to revive the action is granted. The motion for production of the Williamson report is granted.

[22] The defendant may also bring a motion directed to Mr. Williamson for production of his original observations and tests and may also seek production of the air bag module from Mr. Williamson or from Co-operators if it is relevant to verify what information the module contains and if it still exists.

[23] There should be a new deadline for setting the action down for trial. The deadline is July 1, 2014. If the defendant wishes to move to compel production from Peter Williamson or Co-operators then that motion is to be brought before the end of February, 2014.

[24] Turning to costs, this is a classic situation of two wrongs not making a right. It was unreasonable for the defendant not to consent to the order setting aside the dismissal order. It was unreasonable for the plaintiff not to produce the Williamson report and to co-operate with the defendant if the defendant sought information in the hands of Co-operators or Williamson over which the plaintiff claimed no power or control. It was unreasonable for the defendant to insist on being unreasonable until the plaintiff stopped being unreasonable.

[25] Consequently there will be no order for costs. Obviously this does not affect the question of costs of the motion before McLean J.

Master MacLeod

[^1]: Horodoynsky Farms Inc. v. Zeneca Corp. (2006) 2006 25345 (ON CA), 82 O.R. (3d) 229 (C.A.)’ rev’d on other grounds (2006 31976 (ON CA), 83 O.R. (3d) 792 (C.A.) and Lesniowski v. H.B. Group Insurance Management Ltd. (2002) 23 C.P.C. (5th) 362 (Master)

[^2]: Genaral Accident Assurance Co. v. Chrusz (199) 1999 7320 (ON CA), 45 O.R. (3d) 321 (C.A.) @ paras 33- 41, 135 & 171

[^3]: Blank v. Canada 2006 SCC 39, [2006] 2 S.C.R. 319 @ para 61 - 64