ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-43777
DATE: 2014/11/25

BETWEEN:

Joanne Burwash, Ralph Burwash, Erika Burwash and Kaitlin Burwash, Elisa Burwash, Derek Burwash, Tenylle Burwash, Jessica Burwash, Rolf Burwash, Gershon Burwash, Fiona Burwash and Lance Burwash by their litigation guardian Ralph Burwash

Plaintiffs (Responding Parties)

– and –

Jason Williams, Siemens Canada Limited and Osram Sylvania Ltd.

Defendants (Moving Parties)

Joseph Obagi, for the Plaintiffs (Responding Parties)

David A. Tompkins, for the Defendants (Moving Parties)
Debra Montgomery, for the Non-Party, Cira Medical Services Inc.

HEARD: November 13, 2014 (in Ottawa)

REASONS FOR decision on motion

JUSTICE PATRICK SMITH

[1] I heard this motion for an order requiring third-party production of documents on November 13, 2014.

[2] The trial of this matter was originally scheduled to commence on April 7, 2014, but was adjourned when the Defendants brought an emergency motion to adjourn the trial on the basis that they were not in receipt of a medical report. The motion to adjourn was granted; however, terms were imposed and the matter was set peremptorily for February 9, 2015.

[3] In view of the fact that the trial of this matter has been adjourned once and is set peremptorily for February 9, 2015, it is important that another adjournment be avoided and that the parties receive my decision as soon as possible. Accordingly, my endorsement containing my decision was released on the proviso that full reasons would follow. My reasons for granting the motion are set out below.

Background

[4] The Plaintiffs seek an order pursuant to Rule 30.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, requiring production of the complete files of Cira Medical Services Inc. (Cira) regarding the Plaintiff, Joanne Burwash.

[5] Ms. Burwash was involved in an automobile accident on January 18, 2007, and brought an action for damages against the Defendants.

[6] Cira is not a party to this litigation. It is a national company in the business of providing medical assessments and health services for several corporate, insurance and medical legal communities through a network of independent health professionals. Cira was created in June 2012 and is a combination of two companies, namely, Riverfront Medical Services (“Riverfront”) and Medisys IMA.

[7] The Defendants retained Cira to co-ordinate defence medical examinations of Ms. Burwash conducted pursuant to s. 105 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[8] The Defendants do not object to the production of the files.

[9] The Defendants have requested disclosure of Cira’s complete files. The Plaintiffs allege that only partial production of the files has been made to date.

Timing of the Motion

[10] The Plaintiffs assert that they had no reason to suspect that Cira was involved in the review, revision and editing of draft expert reports until the examination for discovery of Dr. St. Pierre when answers and subsequent productions indicated that Cira may be using third parties to review and revise the Defendants’ expert reports.

[11] I am satisfied that the Plaintiffs have brought this motion at the earliest opportunity and that they could not have reasonably discovered that the issue existed any earlier.

The Position of the Plaintiffs

[12] The Plaintiffs filed a Compendium of Extracts of the Cira productions and allege that a review of the productions received from Cira to date indicate that Cira was involved in the review and revision of expert reports and may be in possession of several draft reports from unknown experts retained to provide opinion evidence regarding Ms. Burwash’s condition.

[13] At para. 34 of their factum, the Plaintiffs state: “It is respectfully submitted that it would be prejudicial to both the Plaintiff and to the Court to require the Plaintiff to proceed to trial without the complete files of CIRA Medical Services. This information and documentation is of vital importance given that the documents produced to date indicate that CIRA was intricately involved in the preparation and review of medical reports, both insurer examinations for the accident benefits insurer and defence examinations in the tort action, involving Joanne Burwash.”

The Position of the Cira

[14] Cira resists the motion for a number of reasons:

1. It is not a party to the action and lacks knowledge of the details of the issues that would allow it to determine if any of the requested records relating to the accident benefit claim are relevant;

2. This motion was “piggybacked” on another motion involving the parties that was scheduled to be heard on an emergency basis. The emergency motion was settled and there is nothing emergent about this motion, and thus it should not proceed;

3. It will be extremely difficult for Cira to locate and produce the documents that the Plaintiffs seek for the following reasons:

• The accident benefit claim (“AB”) was active for seven years during which there was a minimum of three company-wide technology evolutions, such that the documents relating to the AB claim are contained on several different information technology platforms.

• The email servers storing Riverfront (a predecessor entity) emails prior to 2009 are currently not online and must be recreated in order to access any files predating 2009.

• Paper files relating to the AB claim that were maintained by Riverfront and later by Cira are stored in a remote offsite storage location and are difficult to access.

4. The requirements of Rule 30.10 have not been satisfied.

Analysis

[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.

Rule 30.10

[18] Rule 30.10 of the Rules of Civil Procedure sets out a two-pronged test – relevancy and trial fairness – for an order for the production of documents from a non-party to litigation. Relief is discretionary with the onus on the moving party to satisfy both branches of the test. The test of relevancy must first be satisfied before the court examines the fairness requirement.

[19] Rule 30.10 provides:

30.10 (1) The court may, on motion by a party, order production for inspection of a document that is in the possession, control or power of a person not a party and is not privileged where the court is satisfied that,

(a) the document is relevant to a material issue in the action; and

(b) it would be unfair to require the moving party to proceed to trial without having discovery of the document.

[20] The test set by rule 30.10 is high, presumably to protect non-parties from “the potentially intrusive, costly and time-consuming process of discovery and production” (Ontario (Attorney General) v. Stavro (1995), 1995 3509 (ON CA), 26 O.R. (3d) 39 (Ont. C.A.), at 47 [“Stavro”]; see also, Lowe v. Motolanez (1996), 1996 37 (ON CA), 30 O.R. (3d) 408 (Ont. C.A.), at 413).

[21] The relevance of documents on a rule 30.10 motion is not presumptive (Olendzki v. W.A. Baker Trucking Ltd., 2006 1673 (ON SC), at para 1).

[22] The Ontario Court of Appeal in Stavro, at p. 48, set out a non-exclusive list of factors that a trial judge should consider in deciding whether to order production of documents from a non-party. These factors are:

o the importance of the documents in the litigation;

o whether production at the discovery stage of the process as opposed to production at trial is necessary to avoid unfairness to the [moving party];

o whether the discovery of the [non-moving party] with respect to the issues to which the documents are relevant is adequate and if not, whether responsibility for that inadequacy rests with the [non-moving party];

o the position of the non-parties with respect to production;

o the availability of the documents or their informational equivalent from some other source which is accessible to the moving [party; and]

o the relationship of the non-parties from whom production is sought, to the litigation and the parties to the litigation. Non-parties who have an interest in the subject matter of the litigation and whose interests are allied with the party opposing production should be more susceptible to a production order than a true "stranger" to the litigation.

[23] I am satisfied from a review of the affidavit material filed, including the Compendium of Extracts the Plaintiffs provided, that the documents requested meet the relevancy requirement of rule 30.10.

[24] The Plaintiffs provided documents that indicate that there may have been third party manipulation and alteration of the expert reports that the Defendants will rely upon at trial. Relevancy is established since this issue goes straight to the heart of the Plaintiffs’ case and the medical evidence they intend to lead to prove damages.

[25] Regarding the issue of fairness, negative comments on the preparation, review and revision of expert reports appears in a number of cases dating back to 2006.

[26] In Macdonald v. Sun Life Assurance Co. of Canada, [2006] O.J. No. 4977 (Ont. S.C.), a case involving Riverfront (since acquired by Cira), Justice Spiegel made the following remarks at paras. 101 to 103:

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.

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. 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.

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. [footnotes omitted]

[27] In a subsequent decision, Justice Spiegel commented on the importance of the testimony and evidence of expert witnesses, as well as their role in the judicial process:

I do not make these comments lightly or with any pleasure. However, the issue has significance far beyond the confines of this case. Qualified expert witnesses are granted a right not available to lay witnesses; to give express opinions for the assistance of the court. But with this right comes the crucially important responsibility of maintaining an attitude of strict independence, and impartiality. This requires the expert's evidence to be uninfluenced as to form and content by the exigencies of the litigation. Simply put, this means that the expert opinions should not be influenced by the interests of the party calling him or her. Judges must be vigilant to ensure that these responsibilities are scrupulously fulfilled and when they are not, to apply appropriate sanctions. For more than a decade, the cases have contained similar admonitions. Regrettably, I have not noticed any significant improvement in the manner in which expert witnesses have been discharging their responsibilities. (Southcott Estates Inc. Toronto Catholic District School Board, 2009 3567 (ON SC) at para. 110, reversed on other grounds in 2010 ONCA 310, 104 O.R. (3d) 784)

[28] Rule 53.03 of the Rules of Civil Procedure is designed to ensure the independence and integrity of the expert witness. The duty of the expert witness is to be of assistance to the court. Each expert witness is required to sign an acknowledgement that they are providing an independent and unbiased opinion. If there is reason to believe that the expert’s report or opinion has been influenced by unknown third parties and is therefore not entirely the expert’s opinion, the fundamental rationale for accepting expert opinion evidence is no longer present and hence the report is not only not helpful to the court but may become misleading. This is an issue that is directly related to trial fairness.

[29] It is also important to note that the documentation requested by the Plaintiffs is not available from any source other than Cira. Furthermore, the Defendants engaged Cira to assist them with this litigation and the Defendants have no objection to the production of the documents in question.

Conclusion

[30] For the reasons set out above, the motion is granted. My earlier endorsement sets out that the following order is to issue:

1. Leave is granted to the Plaintiffs to bring this motion pursuant to rule 30.10 of the Rules of Civil Procedure.

2. Order to issue requiring Cira and Riverfront to produce a complete copy of its files regarding the Ms. Burwash, including:

(i) all clinical notes and records;

(ii) all draft reports;

(iii) all correspondence (including interoffice communication, communication with counsel for the Defendants and communication with any third party relating to the Plaintiff);

(iv) any other documentation (electronic or paper) pertaining to the Plaintiff or the assessment of the Plaintiff, Ms. Burwash; and

(v) any recordings, audio or visual, including dictation, relating to Ms. Burwash.

3. In the event that counsel are unable to resolve the issue of costs, they may file written submissions on or before December 1, 2014, not to exceed five (5) pages in length.

Justice Patrick Smith

Released: November 25, 2014