Nikolakakos v. Hoque et al.

[Indexed as: Nikolakakos v. Hoque]

Ontario Reports

Ontario Superior Court of Justice,

Master Graham

July 24, 2015

127 O.R. (3d) 48 | 2015 ONSC 4738

Case Summary

Civil procedure — Discovery — Medical examination — Defendants not required to produce their letter of instruction to defence medical expert as term of plaintiff's agreement to attend proposed defence medical examination by that expert — Defendants required to produce instructing letter if they elected to call expert as witness at trial. [page49 ]

The defendants in a personal injury action brought a motion to compel the plaintiff's attendance at a defence medical examination by an orthopedic surgeon. The plaintiff agreed to attend at the medical examination provided that the defendants' counsel provide her counsel with their letter of instruction to the orthopedic surgeon. The defendants' counsel refused to provide a copy of the letter.

Held, the motion should be granted.

Any requirement that the defendants disclose their counsel's instructions to their medical expert did not arise until the defendants had elected to rely on that expert's report pursuant to rule 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Accordingly, they were not required to produce the instructing letter at this time. They were required to do so in the event that they elected to call the expert as a witness at trial.

Bruell Contracting Ltd. v. J. & P. Leveque Bros. Haulage Ltd., [2015] O.J. No. 2017, 2015 ONCA 273; Moore v. Getahun (2015), 124 O.R. (3d) 321, [2015] O.J. No. 398, 2015 ONCA 55, 73 M.V.R. (6th) 169, 65 C.P.C. (7th) 1, 381 D.L.R. (4th) 471, 329 O.A.C. 363, 248 A.C.W.S. (3d) 844, consd

Other cases referred to

Conceicao Farms Inc. v. Zeneca Corp. (2006), 2006 31976 (ON CA), 83 O.R. (3d) 792, [2006] O.J. No. 3716, 272 D.L.R. (4th) 545, 215 O.A.C. 233, 32 C.P.C. (6th) 201, 151 A.C.W.S. (3d) 567 (C.A.); Imperial Oil Ltd. v. Oakville (Town), [2012] O.J. No. 5880, 2012 ONSC 6933 (S.C.J.)

Statutes referred to

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 105, (2)

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.05, 31.06(3), 33, 33.06(1), (2), 53.03, (2.1), 3

MOTION to compel attendance at a defence medical examination.

Suhaib Ibrahim, for plaintiff.

Chet Wydrzynski, for defendants (moving parties).

[1] MASTER GRAHAM: — The plaintiff's action is for damages arising from personal injuries sustained in a motor vehicle accident that occurred on August 29, 2012. Following the examinations for discovery held on August 28, 2014, the defendants requested that the plaintiff attend at a defence medical examination with Dr. Rick Zarnett, an orthopaedic surgeon. The plaintiff agrees to attend at the medical examination provided that the defendants' counsel provides her counsel with their "letter of instruction" to Dr. Zarnett. The defendants' counsel refuses to provide a copy of this letter.

[2] The only issue on the motion is whether the defendants must provide the plaintiff with a copy of their counsel's letter of instruction to Dr. Zarnett as a term of the plaintiff's agreement [page50 ]to attend the proposed medical examination. Although the relief claimed in the notice of motion also includes payment of a cancellation fee arising from the plaintiff's failure to attend a previously scheduled medical examination, the defendants' counsel informed the court at the hearing that no cancellation fee was charged.

Applicable Statutory Provision and Rules of Civil Procedure

[3] The defendants' motion is brought under s. 105(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43:

105(2) Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.

[4] The court's jurisdiction to order the requested term is under rule 1.05 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:

1.05 When making an order under these rules the court may impose such terms and give such directions as are just.

[5] Rule 33, which governs medical examinations under s. 105 of the Courts of Justice Act, requires the examining health practitioner to prepare a report following the examination and the party obtaining the order for the examination to serve the report forthwith:

33.06(1) After conducting an examination, the examining health practitioner shall prepare a written report setting out his or her observations, the results of any tests made and his or her conclusions, diagnosis and prognosis and shall forthwith provide the report to the party who obtained the order.

(2) The party who obtained the order shall forthwith serve the report on every other party.

[6] If the defendant wishes to rely on the opinion expressed by a health practitioner who has prepared a report under rule 33.06(1), and call that individual as an expert witness at trial, the defendant and the report must comply with rule 53.03:

53.03(1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference scheduled under subrule 50.02(1) or (2), serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).

(2) A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). [page51 ]

(2.1) A report provided for the purposes of subrule (1) or (2) shall contain the following information:

1. The expert's name, address and area of expertise.

2. The expert's qualifications and employment and educational experiences in his or her area of expertise.

3. The instructions provided to the expert in relation to the proceeding.

4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.

5. The expert's opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert's own opinion within that range.

6. The expert's reasons for his or her opinion, including,

i. a description of the factual assumptions on which the opinion is based,

ii. a description of any research conducted by the expert that led him or her to form the opinion, and

iii. a list of every document, if any, relied on by the expert in forming the opinion.

7. An acknowledgement of expert's duty (Form 53) signed by the expert.

(Emphasis added)

[7] Although rule 53.03(2.1) sets out requirements for the content of expert reports that are in addition to those for defence medical reports in rule 33.06(1), the usual practice is that the medical expert will prepare a single report that complies with both rules.

[8] Cases relied on by both counsel consider the issue of litigation privilege in relation to a party's communications with an expert and the application of rule 31.06(3) relating to disclosure of expert opinions at examinations for discovery:

31.06(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 trial.

[Emphasis added] [page52 ]

Submissions of the Parties

[9] Although this motion was brought by the defendants to compel the plaintiff's attendance at a medical examination, as the sole issue on the motion is whether the court should order the term sought by the plaintiff, I will address the plaintiff's submissions first.

[10] The plaintiff submits that rule 53.03(2.1) should be interpreted to mean that not only must an expert, in this case Dr. Zarnett, include counsel's instructions in his report, but the defendants must also produce the letter to the expert containing those instructions.

[11] The plaintiff relies on the decision of Master Muir in Imperial Oil Ltd. v. Oakville (Town), [2012] O.J. No. 5880, 2012 ONSC 6933 (S.C.J.). In a claim for damages arising out of contamination of property, the plaintiffs sought production of an instructing letter from the defendant Oakville to Altus, an expert that Oakville had undertaken not to call as a witness at trial, on the basis that the Altus letter had also been sent to Golder, another expert which Oakville would be calling at trial. Master Muir considered the provision of rule 53.03(2.1), which requires that an expert report include "the instructions provided to the expert" and concluded that as the Altus letter was used by Oakville as a letter of instruction to Golder, the rule required production of the instructions contained in that letter. However, Master Muir limited his order to the portion of the Altus letter that was specifically referred to in Oakville's counsel's instructions to Golder; the balance of the Altus letter was not ordered produced.

[12] The plaintiff further submits that foundational material relied upon by an expert, including the instructions on which the expert proceeded, must be disclosed by the party seeking to call the expert at trial and in this regard relies on the Court of Appeal's decisions in Conceicao Farms Inc. v. Zeneca Corp. (2006), 2006 31976 (ON CA), 83 O.R. (3d) 792, [2006] O.J. No. 3716 (C.A.) and Moore v. Getahun (2015), 2015 ONCA 55, 124 O.R. (3d) 321, [2015] O.J. No. 398 (C.A.). Both decisions are reviewed in more detail below.

[13] The defendants submit that rule 53.03(2.1) states only that counsel's instructions to the expert must be contained in the expert's report, and this provision cannot be interpreted to require production of the letter containing those instructions. The defendants further submit that Conceicao Farms and Moore v. Getahun stand only for the proposition that foundational information must be disclosed, and that this requirement would [page53 ]be met by the expert including counsel's instructions in his or her report in compliance with rule 53.03(2.1).

[14] The defendants also rely on Bruell Contracting Ltd. v. J. & P. Leveque Bros. Haulage Ltd., [2015] O.J. No. 2017, 2015 ONCA 273, in which the court, in considering Moore v. Getahun, stated, at para. 48:

In Moore, this court made clear that it is not only appropriate but essential for counsel to consult and collaborate with expert witnesses in the preparation of expert reports. Counsel must explain to experts their duties to the court, clarify the relevant legal issues, and assist experts in "framing their reports in a way that is comprehensible and responsive to the pertinent legal issues in a case": Moore at para. 62. Normally, communications between counsel and the expert, as well as draft reports, will be subject to litigation privilege. Only if there is reasonable suspicion that counsel has improperly influenced the expert may production of notes and drafts be ordered.

(Emphasis added)

Analysis and Decision

[15] The issue on the motion is whether a defendant seeking a defence medical examination of a plaintiff must agree at the time that the examination is arranged to produce to the plaintiff a copy of the letter of instruction to the physician conducting the examination.

[16] A defence medical report must be served pursuant to rule 33.06(2) regardless of whether or not the defendant who obtained it intends to call the examining health practitioner as a witness. However, the requirement that a defendant serve a medical report under rule 33.06(2) does not constitute a waiver of privilege with respect to the defendant's communications with the health practitioner conducting the defence examination. A defendant who has served a report pursuant to that rule still has the option not to call the author of the report as a witness at trial in which case that party is not obliged to comply with rule 53.03 and is not obliged to provide any further information that might be subject to disclosure under rule 31.06(3).

[17] Dr. Zarnett has not yet conducted his examination and prepared his report. The plaintiff is therefore seeking production of the defendants' instructing letter to Dr. Zarnett before the defendants are in a position to decide whether or not they will be relying on his report at trial. Any requirement that the defendants disclose their counsel's instructions to their medical expert does not arise until the defendants have elected to rely on their medical expert's report pursuant to rule 53.03. Accordingly, the instructing letter need not be produced at this time. Similarly, even following service of Dr. Zarnett's report pursuant to rule 33.06(2), [page54 ]the instructing letter need not be produced pending the defendants' decision as to whether or not to call Dr. Zarnett as a witness at trial.

[18] In order to assist the parties to this action and the bar generally, I will also provide a ruling as to whether the defendants must produce their counsel's instructing letter to Dr. Zarnett in the event that they ultimately do elect to call Dr. Zarnett as a witness at trial.

[19] The case law provided on this motion indicates that where a party has not undertaken not to call an expert as a witness at trial, the party that has retained the expert must provide the disclosure required under rule 31.06(3) if requested to do so at examinations for discovery. In Conceicao Farms Inc. v. Zeneca Corp., supra, the Court of Appeal stated as follows (at paras. 13 and 14):

In Holmested and Watson at p. 31-106, the learned authors clearly and concisely summarize these aspects of the rule:

Rule 31.06(3) is concerned with fact disclosure, not with documentary production. If prepared in contemplation of litigation an expert's report is privileged and the report itself (i.e. the document) remains technically privileged, notwithstanding rule 31.06(3). However in practice the parties often waive this privilege and deliver or exchange expert's reports in lieu of, or in fulfillment of their obligations under rule 31.06(3).

There is an area of debate concerning the scope of information that may be obtained pursuant to this rule. 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.

(Emphasis added)

[20] Based on Conceicao, the obligation under rule 31.06(3) to disclose the instructions to the expert, which can only arise where the party that has retained the expert decides to call the witness a trial, is limited to informing the opposing party of those instructions if requested at or following examinations for discovery and does not require production of the instructing letter. I note that Conceicao was decided before the enactment of rule 53.03(2.1), which requires the instructions to be included in the expert's report.

[21] The Court of Appeal in Moore v. Getahun, supra, addressed the issue of the litigation privilege that attaches to expert reports (at paras. 73-75):

It is important to note that the litigation privilege attaching to expert reports is qualified and disclosure may be required in certain situations. [page55 ]

The most obvious qualification is that the Rules of Civil Procedure require disclosure of the opinion of an expert witness before trial. If a party intends to call the expert as a witness at trial, rule 31.06(3) entitles the opposite party on oral discovery to "obtain disclosure of the findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined".

As well, the party who intends to call the expert witness is required to disclose the expert's report and the other information mandated by rule 53.03(2.1). The result is that what has been called "the foundational information" for the opinion must be disclosed: Conceicao Farms, at para. 14. Bryant, Lederman and Fuerst refer to this as an "implied waiver" of privilege over the facts underlying an expert's opinion that results from calling the expert as a witness: Alan W. Bryant, Sidney N. Lederman and Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4th ed. at para. 14.220. These authors favour restricting the implied waiver "to material relating to formulation of the expressed opinion" (at Para. 14.224). They state that caution should be exercised before requiring "wide-ranging disclosure of all solicitor-expert communications and drafts of reports", as such a practice could encourage "a general practice among solicitors of destroying drafts after they are no longer needed just to avoid the problem" (at para. 14.226).

[22] As I concluded above, any obligation to provide "material relating to formulation of the expressed opinion" does not arise until the party obtaining the expert report (in this case the defendants) has exercised their option as to whether or not to call the expert as a witness at trial. Pursuant to rule 53.03(2.1)3, the instructions provided to Dr. Zarnett must be included in his report if the defendants intend to rely on it, but this rule does not specifically require production of the letter. However, if the defendants do decide to call Dr. Zarnett to testify at trial, they will be taken to have waived privilege over their instructing letter by way of the limited "implied waiver", referred to in para. 75 of Moore v. Getahun, supra, which applies to "material relating to formulation of the expressed opinion". Therefore, should the defendants elect to call Dr. Zarnett as a witness at trial, they must produce their counsel's instructing letter to him.

[23] The Bruell Contracting decision relied on by the defendants (see para. 14, above) simply reiterates the law as stated in Moore v. Getahun and does not expand or limit the scope of disclosure from the file of an expert witness. In both cases, the court was primarily concerned with the extent to which discussions between counsel and an expert with respect to the content of the expert's final report, including notes of any such discussions and any draft reports, must be produced. However, the fact that notes of discussions during the course of preparation of any draft reports and the final report will only be ordered produced if there is reasonable suspicion that counsel has improperly [page56 ]influenced the expert does not negate the implied waiver of privilege over the foundational information referred to in Moore v. Getahun.

[24] To summarize my conclusions, a defendant arranging a defence medical examination is not obliged to produce its instructing letter to the defence medical expert at the time of scheduling the examination or at the time of the mandatory service of that expert's report under rule 33.06(2). However, once the defendant elects to call the defence medical expert as a witness at trial, the instructing letter to the medical expert must be produced. Although this motion addressed the production of a letter of instruction to a medical expert engaged by a defendant, the same ruling would also apply to instructing letters to plaintiffs' medical experts.

[25] It is common for a defendant that has obtained a report from a medical expert to request a further report from the same expert, generally in relation to material received following receipt of the initial report, such as additional medical records, further reports from the plaintiff or surveillance. Provided that the defendant has elected to call the medical expert at trial, the defendant must also produce any further instructing letters requesting further reports.

[26] The underlying motion was to compel the plaintiff to attend at a medical examination with Dr. Zarnett, and I so order. The defendants are not required to produce their instructing letter or letters to Dr. Zarnett prior to the examination or upon initial service of his report but shall do so in the event that they elect to call Dr. Zarnett as a witness at trial.

Costs

[27] Following the hearing of the motion, counsel provided costs outlines and made submissions. Both counsels' arguments on the motion itself were limited to a consideration of whether or not the letter of instruction to Dr. Zarnett should be produced before he examines the plaintiff and prepares his report. Although the defendants are not required to produce the instructing letter now, they will be required to in the future in the event that they elect to call Dr. Zarnett as a witness at trial. As the parties achieved mixed success on the argument of a novel issue, there shall be no costs payable on the motion.

Motion granted.

End of Document