ONTARIO – SUPERIOR COURT OF JUSTICE

Thermapan Structural Insulated Panels Inc. v. City of Ottawa and Arlene Gregoire, Chief
Building Official for the City of Ottawa

2014 ONSC 2365

Court File No.: CV-12-444547

Motion Heard: April 14, 2014

Julian Heller for the applicant

Jon Smithen for the respondents

ENDORSEMENT

Master R.A. Muir -

[1] There are two motions before the court in connection with this application. Both sides bring motions seeking answers to undertakings and questions refused on several cross-examinations carried out in preparation for the hearing of this application on June 11, 2014. As a result of the pending application date, I agreed to hear these motions as a special appointment and prepare this endorsement on an expedited basis.

[2] The issues on the motion brought by the respondents (“Ottawa”) were resolved by the parties. The parties have agreed that Ottawa’s motion can be withdrawn without costs, save for Ottawa’s request for the re-attendance of the applicant’s witnesses.

[3] Most of the issues on the motion brought by the applicant (“Thermapan”) were also resolved prior to the hearing date. The remaining contested issues relate to the scope of the production of documents from the file kept by Ottawa’s expert witness and whether re-attendance should be by way of written or oral examination.

[4] Thermapan’s notice of application seeks an order from the court requiring Ottawa to issue a building permit for a project located at 2126 Huntley Road, Ottawa. Ottawa rejected the initial application for a building permit. Section 25 of the Building Code Act, 1992, 1992 S.O. c. 23, allows the court to reconsider the building permit application de novo upon application by an affected party.

[5] In support of its application, Thermapan has put forward an affidavit from an expert engineer. Ottawa is also relying on the affidavit of an expert engineer as part of its responding material. Thermapan seeks production of the entire file kept by Ottawa’s expert engineer. Thermapan wishes to test the independence, objectivity and credibility of the expert and seeks this production as part of that process. Thermapan takes the position that by serving the expert’s affidavit, Ottawa has waived any privilege attaching to the expert’s file.

[6] The role of the expert in litigation in Ontario has evolved considerably in recent years. It is now recognized that the expert’s primary duty is to assist the court. The rules now require that an expert witness sign an acknowledgement which includes a requirement that the expert provide evidence that is fair, objective and non-partisan. This obligation prevails over any duty the expert may owe to the party who has retained him or her. The recent changes to Rule 53.03 and the role of the expert have recently led Justice J. Wilson to conclude that the previous practice of counsel reviewing expert reports “should stop” in order to ensure that the expert witness remains “neutral”. See Moore v. Getahun, 2014 ONSC 237 at paragraph 520.

[7] However, for the reasons that follow, it is my view that the evolution of the role of the expert witness has not yet reached the point where this court should automatically require full disclosure of an expert’s entire file as a matter of course.

[8] In Browne (Litigation Guardian of) v. Lavery, 2002 CarswellOnt 496 (S.C.J.), Justice Ferguson stated as follows at paragraph 66:

66. It is my tentative view that our system of civil litigation would function more fairly and effectively if parties were required to produce all communications which take place between counsel and an expert before the completion of a report of an expert whose opinion is going to be used at trial.

[9] This is certainly a broad statement as to the foundational disclosure required when a party serves an expert report. It is significant to note, however, that the Court of Appeal has expressly declined to adopt Justice Ferguson’s suggestion. In Conceicao Farms Inc. v. Zeneca Corp., 2006 CarswellOnt 5672 (C.A.) the Court of Appeal stated as follows at paragraph 14:

14. There is an area of debate concerning the scope of information that may be obtained pursuant to this rule [31.06(3)]. It clearly encompasses not only the expert's opinion but the facts on which the opinion is based, the instructions upon which the expert proceeded, and the expert's name and address. How far beyond this the right to obtain foundational information (as our colleague called it) extends, need not be determined here. Suffice it to say that we are of the view that it does not yet extend as far as is tentatively suggested in Browne (Litigation Guardian of) v. Lavery (2002), 2002 49411 (ON SC), 58 O.R. (3d) 49 (Ont. S.C.J.). We simply proceed on the basis that the rule entitles the appellant to obtain on discovery the foundational information for Dr. Grafius' final opinion. As will become clear, we need not decide in this case the precise extent of the information that is discoverable.

[10] In his recent decision in Ebrahim v. Continental Precious Minerals Inc., 2012 ONSC 1123, Justice D.M. Brown addressed the circumstances when production beyond the basic foundational information may be required. In so doing, he adopted the observations of the authors of Sopinka, Lederman and Bryant, The Law of Evidence in Canada, Third Edition (Toronto: LexisNexis, 2009). At paragraph 73 of Ebrahim Justice Brown notes as follows:

73. After reviewing the cases on both sides of the debate, the learned authors offered the following views:

Generally, the implied waiver (by the expert taking the stand or having his or her report tendered into evidence) should be narrowly construed and the privilege should be maintained whenever it is fair to do so. The waiver of litigation privilege should be restricted to material relating to formulation of the expressed opinion.

No doubt the witness should be subject to cross-examination on the factual basis of the opinion…As to the expert’s credibility, caution should be exercised before that becomes the basis for wide-ranging disclosure of all solicitor-expert communications and drafts of reports. Certainly, confidential communications which are not the foundation of the expert opinion are not waived. In any event, it might just lead to a general practice among solicitors of destroying drafts after they are no longer needed just to avoid the problem

[11] Justice Brown went on to conclude at paragraphs 74-75:

74. 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.

75. 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.

[12] I note that Ebrahim was the only decision counsel were able to find that dealt with this issue in the context of an application as opposed to discovery or trial.

[13] Mr. Heller suggested that the decision of Justice Wilson in Moore takes us beyond that principle and closer to the automatic production of the expert’s complete file as suggested by Thermapan. I do not agree. In my view, the principle that the implied waiver should be narrowly construed remains the law of Ontario. I note that in Moore, there was an admission by the expert witness that he had reviewed his draft report with counsel and made “corrections” as a result. See Moore at paragraph 47.

[14] There is simply no suggestion in the evidence before me of any concern about the conduct of Ottawa’s expert. There is no evidence on which it could be argued that the expert is anything other than independent. This is to be distinguished from Ebrahim where the expert acknowledged that he did not draft his own expert report. As can be seen from the excerpt above, this was the determining factor in Justice Brown’s decision to order production of written correspondence with counsel and prior drafts of the expert’s report. No circumstances exist on the evidence before me to justify such an order.

[15] The foundational information provided to Ottawa’s expert has been produced (save for one email that Mr. Heller suggested has not yet been produced and is listed as part of Ottawa’s answers to undertakings and questions refused). The instructions to Ottawa’s expert were apparently not provided in written form. The expert has summarized those instructions at paragraphs 2 and 3 of his affidavit sworn June 19, 2013. The invoices rendered by the expert to Ottawa have or will be produced. In my view, nothing further is required in the circumstances of this application.

[16] I am prepared to order re-attendance for all witnesses. I am satisfied that the additional information provided after the cross-examinations requires further oral examinations. The quantity of material may not be significant but it certainly relates to very important issues, especially with respect to the manner in which Ottawa may have responded to similar building permit applications in the past and subsequent to the issuance of this notice of application. However, I see no reason for witnesses to travel to Toronto for brief follow-up examinations. Suitable video conference technology is readily available in Ontario in 2014 that would allow the examinations to be conducted remotely.

[17] I therefore order as follows:

(a) all witnesses shall re-attend for further cross-examination in respect of questions arising from the answers provided to undertakings, questions refused or questions taken under advisement;

(b) the further cross-examinations shall take place by May 15, 2014 and shall take place by video-conference or by personal attendance at the option of the witness;

(c) the further cross-examinations shall be limited to five hours for each side;

(d) Richard Ashe shall answer under advisement No. 4 at question 157, page 50 by no later than April 29, 2014;

(e) Ottawa shall produce to Thermapan a copy of the email dated January 10, 2013 and referenced as document No. 8 in the list of documents reviewed by Michael Allen, by no later than April 29, 2014;

(f) Ottawa shall produce to Thermapan complete copies of all further statements of account when and if delivered by Mr. Allen;

(g) the balance of the relief sought by Ottawa is withdrawn without costs;

(h) the balance of the relief on Thermapan’s motion is dismissed; and,

(i) if the parties are unable to agree on the costs of Thermapan’s motion, they may make brief written submissions by no later than May 12, 2014.

Master R.A. Muir

DATE: April 15, 2014