A. INTRODUCTION

[1] A litigant’s lawyer retains an expert to provide an opinion. The expert hires his own lawyer to help prepare the opinion. The expert’s own lawyer locates the research material for the opinion, provides some advice about the substance of the opinion, writes the text of the opinion, and revises the opinion in light of comments received from the lawyer that commissioned the opinion. The expert is cross-examined, and at the examination, he refuses to produce: (a) his correspondence and communications with his own lawyer: (b) any of the drafts of the opinion; (c) and his invoice to the lawyer that commissioned the opinion.

[2] This is a refusals motion to determine whether the expert’s refusals were justified. I conclude that the refusals were proper, and I dismiss the motion.

B. FACTUAL BACKGROUND

[3] The Plaintiffs, Terry Wright and Martin Gerard, commenced a primary and secondary market securities class action against Detour Gold Corporation, a reporting issuer in Ontario, and its former Chief Executive Officer, Gerald Panneton, for violations of Part XV and XVIII of the Securities Act R.S.O. 1990, c. S.5.

[4] One of the issues on the Plaintiffs’ pending motion for leave to proceed with the statutory claims for secondary market liability under Part XXIII.1 of the Ontario Securities Act is whether Detour Gold was required to disclose certain operating covenants in its contract for a $135 million credit facility with a syndicate of Canadian banks. The answer to this question turns on the a reporting issuer’s disclosure obligations under the Act.

[5] Through the auspices of their lawyers of record, Davies Ward Philips and Vineberg LLP, the Defendants retained Peter Gillin to provide an opinion about the scope of the Defendants’ duty to disclose the operating covenant to the investing public. There was no engagement letter, but Mr. Gillin deposed that he was retained to provide an opinion because of his experience as an investment banker, a chief executive officer, and a director of a number of publicly-listed mining companies.

[6] To assist in the preparation of his opinion, Mr. Gillin retained his own legal counsel, SkyLaw P.C., a boutique corporate and securities law firm in Toronto that specializes in commercial matters and that provides support work for expert witnesses.

[7] Mr. Gillin instructed SkyLaw to locate information from publically available sources including Bloomberg Markets, which provides financial news, data, and analysis and SEDAR (the System for Electronic Document Analysis and Retrieval), which is a website maintained by Canadian Securities Administrators to provide access to public securities documents and information filed by reporting issuers.

[8] Mr. Gillin reviewed the information gathered by SkyLaw. The sources he reviewed were later assembled in a separate affidavit from a law clerk employed by Davies Ward Philips and Vineberg LLP, who delivered an affidavit in the proceedings.

[9] SkyLaw prepared several drafts of an affidavit setting out Mr. Gillin’s opinion. Later at his cross-examination on his affidavit, Mr. Gillin testified:

Q. And just to clarify one point, did you send those drafts to SkyLaw or to Davies or to both?

A. We, SkyLaw and I, prepared the affidavit, and I think when we were satisfied with it, we sent it to Davies, and they provided some comments, and I think there might have been some revisions after that.

Q. I see. And then the affidavit –

A. But the substance of my opinion was mine and the drafting was done by SkyLaw.

[10] Mr. Gillin did not provide Davies Ward Philips and Vineberg LLP, with a copy of his affidavit until his counsel at SkyLaw were satisfied with the draft. After reviewing the draft, the Defendants’ counsel at Davies Ward Philips and Vineberg LLP provided some comments and a final copy of the affidavit was prepared by SkyLaw with some revisions.

[11] On July 7, 2016, Mr. Gillin swore his affidavit. He certified that the opinion was prepared in accord with Rules 4.1 and 53.03 of the Rules of Civil Procedure.

[12] In his affidavit, Mr. Gillin deposed that he “had caused a search to be done” of the public record to assess the typical practice of mining companies in disclosing project financing credit facilities and completion tests. In his affidavit, he opined that Detour Gold’s disclosure of the Credit Facility, and in particular of the Cost Covenant, was reasonable and consistent with appropriate disclosure practices for public companies in the mining industry. Further, he opined that the Cost Covenant did not represent a significant risk to Detour Gold. In his affidavit, Mr. Gillin explained his methodology and in Schedule C to his affidavit, he listed the publicly available documents that he reviewed in preparing the affidavit. In Schedule D, Exhibit A, Mr. Gillin analyzed 123 public companies, and in Exhibit B to Schedule D, he identified 13 Specified Issuers that had filed a material change report or a “Specified Facility” agreement on SEDAR.

[13] On September 22, 2016, Mr. Gillin was cross-examined. He disclosed that he had retained SkyLaw to assist in the preparation of the affidavit. He explained that SkyLaw assisted in the drafting but that he provided the content of the opinion. He said that the substance of the opinion was his alone. He testified that he had personally done some searches through SEDAR but that he instructed SkyLaw to search for the documents and to assemble the documents referred to in Schedules C and D of his affidavit.

[14] During the cross-examination, he was asked to produce: (a) any drafts of the affidavit; (b) all correspondence between him and SkyLaw; (c) specific cover letter(s) that may have been sent by SkyLaw to him; and (d) the invoice he sent to Davies Ward Philips and Vineberg LLP for the fee for preparing the opinion. The Defendants refused to have Mr. Gillin answer these questions.

C. DISCUSSION AND ANALYSIS

[15] Rule 4.1.01(1) addresses the duty of an expert witness; it states:

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

[16] Rule 53.03(2.1) provides that an expert report must contain the following information:

The expert's name, address and area of expertise.
The expert's qualifications and employment and educational experiences in his or her area of expertise.
The instructions provided to the expert in relation to the proceeding.
The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.
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.
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.

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

[17] The acknowledgement required by rule 53.03(2.1) reads as follows:

ACKNOWLEDGMENT OF EXPERT'S DUTY

My name is ..................... (name). I live at ........................... (city), in the .................. (province/state) of ........................... (name of province/state).
I have been engaged by or on behalf of ............ ............... (name of party/parties) to provide evidence in relation to the above-noted court proceeding.
I acknowledge that it is my duty to provide evidence in relation to this proceeding as follows:

(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 my area of expertise; and

I acknowledge that the duty referred to above prevails over any obligation which I may owe to any party by whom or on whose behalf I am engaged.

Date ........................

Signature

[18] In a bombastically hyperbolic submission, the Plaintiffs submit that the case at bar presents a compelling example of the inherent danger to our justice system of allowing counsel to inappropriately interfere with an expert witness’ overriding duty to the court and that this case invokes the judiciary’s long-standing concern that an expert’s lack of independence and impartiality can result in egregious miscarriages of justice. They say that to uphold the refusals in this case would create a dangerous precedent that will reverberate in all areas of the law and undermine decades of appellate jurisprudence that has clarified and tightened the threshold requirements for admissibility of expert evidence in civil and criminal matters.

[19] The Plaintiffs say it is extraordinary to discover an expert who admits that he was not the researcher, draftsman, or author of his own opinion. They submit that Mr. Gillin’s admission that “the substance of the opinion was mine and the drafting done by SkyLaw” suggests that SkyLaw may have inappropriately influenced the content of the opinion and that the opinion given may have changed from draft to draft. They submit that there are reasonable grounds to believe that Mr. Gillin has been improperly influenced and that Mr. Gillin’s refusals to answer questions about his dealings with his own lawyer are contrary to Moore v. Getahun, 2015 ONCA 55, leave to appeal refused, [2015] SCCA No 119. The Plaintiffs submit that they are entitled to test on cross-examination the extent to which SkyLaw inappropriately meddled with Mr. Gillin’s duty to provide fair, objective, non-partisan opinion evidence.

[20] The Plaintiffs’ submissions, however, do not correspond to the actual facts of this case or the law that governs those facts. On the genuine facts, the Defendants’ counsel was correct in instructing Mr. Gillin to refuse to produce his correspondence and communications with SkyLaw, the draft reports, and the invoice.

[21] In their submissions, the Plaintiffs persist in asserting that Mr. Gillin put his name on a opinion that he did not write. They submit that he was caught red-handed and that he offered no explanation why SkyLaw’s role in drafting the opinion was not revealed at the time when the affidavit was initially tendered. This submission is just wrong. The fact that Mr. Gillen was assisted by his own lawyers, whose only duties are only to him, cannot be connected to any partiality or want of independence by Mr. Gillen in giving an opinion for the Defendants, which would be grounds for disqualification. Mr. Gillen is the substantive author of the opinion, and he disclosed in the affidavit that he had caused a search to be done indicating the involvement of others, whom he readily identified when asked during his cross-examination. It is hardly surprising that an expert has assistance in preparing and drafting his or her opinion, and it is simply not correct to say that the assistant then becomes the author of the opinion because he or she was involved in the draftsmanship. Affidavits for litigation are almost inevitably drafted by lawyers, and then the witness, be it a lay witness or an expert, swears the truth of the substantive contents drafted by the lawyer. The commissioner of the affidavit asks the deponent whether the contents of affidavit are true. In the immediate case, Mr. Gillen swore under oath and under cross-examination that he was the author of the substance of the opinion. There is no reason to doubt his word just because his own lawyer’s helped him in forming his words. And it was his expertise, which brought the perspective of a corporate officer’s understanding of a corporation’s disclosure obligations under the Ontario Securities Act for which he was retained; the lawyers at SkyLaw have no similar experience because they are not investment bankers, chief executive officers, or directors of publicly-listed mining companies.

[22] The true facts of this case present no danger to the administration of justice and there has been no egregious miscarriage of justice. Although it remains to be determined whether some parts of Mr. Gillin’s opinion are inadmissible hearsay or whether his opinion will provide assistance to the court, none of Mr. Gillin, Davies Ward Philips and Vineberg LLP, or SkyLaw did anything wrong in having Mr. Gillin’s opinion proffered to the court. Mr. Gillin is the substantive author of the opinion and no lawyer interfered with Mr. Gillin’s overriding duty to the court.

[23] What occurred in this case, if anything, is to be encouraged not discouraged, because it rather enhances an expert witness’ independence and impartiality and insulates the expert from pressure from a litigant’s lawyer to be a partisan witness.

[24] As a general rule, opinion evidence is not admissible; witnesses testify as to the facts which they perceived, not as to the inferences -- that is, the opinions -- that they drew from their perceptions: Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819. There is, however, an exception for witnesses duly qualified to express an expert’s opinion: R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24.

[25] As confirmed by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, there is a two-stage test for the admission of opinion evidence.

[26] In the first stage, (the threshold stage), the party proffering expert evidence must satisfy the four factors from R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, which are: (1) relevance; (2) necessity in assisting the trier of fact; (3) the absence of an exclusionary rule; and (4) qualification as an expert. There is a fifth factor in cases in which the expert’s opinion is based on novel or contested science or science used for a novel purpose and in these cases, the reliability of the underlying science for that purpose must be established: White Burgess Langille Inman v. Abbott and Haliburton Co., supra at para. 23; R. v. J.-L.J., 2000 SCC 51; R. v. Trochym, 2007 SCC 6.

[27] In the second stage, (the gatekeeper stage), the court makes a cost-benefit discretionary decision weighing the probative value of admitting the evidence against the potential adverse impacts of admitting the evidence including the consumption of time, prejudice, and the risk of confusing the trier of fact.

[28] In the immediate case, the refusals are associated with the fourth of the Mohan criteria in the threshold stage, the qualification of the witness as an expert. To be qualified as an expert witness, two criteria must be satisfied. First, the witness must be shown to have acquired special or peculiar knowledge through experience or study in respect of the matters on which he or she will testify: R. v. Mohan, supra at para. 27. Second (as codified by rule 4.1.01 in Ontario), the witness must be independent, objective, and impartial, which non-partisanship will be assumed if the witness acknowledges his or her duties to the court. In the case at bar, the problem is about the non-partisan criterion.

[29] In White Burgess Langille Inman v. Abbott and Haliburton Co., supra, the facts were that after the shareholders of Abbott and Haliburton Co. retained an accountant from the accounting firm of Grant Thornton LLP to audit the corporation’s books, the auditor advised the shareholders that there were problems in the previous accounting work of White Burgess Langille Inman. The shareholders then sued their former accountants for professional negligence, and on a summary judgment motion, the shareholders proffered the expert evidence of Susan MacMillan, another accountant from Grant Thornton LLP. In a decision reversed by the Nova Scotia Court of Appeal, the motions judge ruled Ms. MacMillan was not qualified to provide independent and impartial expert evidence. However, Justice Cromwell, writing the judgment for the Supreme Court of Canada, affirmed the decision of the Nova Scotia Court of Appeal and held that Ms. MacMillan’s expert opinion was admissible.

[30] Justice Cromwell’s analysis was as follows. An expert witness has a special duty to the court to provide fair, objective and non-partisan assistance. This special duty is comprised of impartiality, independence, and the absence of bias. The expert must be impartial in the sense that he or she is expressing their own unbiased professional objective assessment. The expert must be independent in the sense that his or her opinion is the product of their own, independent judgment based on their own knowledge and judgment and uninfluenced by the litigant who retained them. The expert must be unbiased in the sense that he or she does not favour one litigant’s position over another. The fact that an expert is paid by one of the litigant’s does not, standing alone, undermine the expert’s impartiality, independence, or freedom from bias.

[31] Justice Cromwell stated that a proposed expert witness who is unable or unwilling to comply with these duties is not qualified to give expert opinion evidence and should not be permitted to do so. Concerns about a witness’ impartiality, independence, and bias should be addressed as a threshold requirement for admissibility. Absent a challenge, the expert's attestation or testimony recognizing and accepting the duty will generally be sufficient to establish that the threshold test has been met. The burden is then on the party opposing the admission of the evidence to show that there is a realistic concern that the expert's evidence should not be received because the expert is unable or unwilling to comply with the duty. If the opponent meets this burden of showing a realistic concern, then the litigant proffering the witness must demonstrate that the expert is impartial, independent, and unbiased. If this is not done, the expert’s evidence, or those parts of it that are tainted by a lack of independence or by impartiality, should be excluded.

[32] In determining whether the threshold requirement is satisfied the judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court. It is the nature and extent of the interest or connection with the litigation or a litigant that matters, not the mere fact of the interest or connection; the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible. Finding that expert evidence meets the basic threshold, however, does not end the inquiry and the judge may take concerns about the expert's independence and impartiality into account in weighing the evidence at the gatekeeping stage of the two-pronged test for the admissibility of expert evidence. Ultimately, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence.

[33] At para. 49 of his judgment, Justice Cromwell stated:

This threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert's evidence would be ruled inadmissible for failing to meet it. The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court. For example, it is the nature and extent of the interest or connection with the litigation or a party thereto which matters, not the mere fact of the interest or connection; the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible. In most cases, a mere employment relationship with the party calling the evidence will be insufficient to do so. On the other hand, a direct financial interest in the outcome of the litigation will be of more concern. The same can be said in the case of a very close familial relationship with one of the parties or situations in which the proposed expert will probably incur professional liability if his or her opinion is not accepted by the court. Similarly, an expert who, in his or her proposed evidence or otherwise, assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court. I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence.

[34] In the immediate case, Mr. Gillin recognized and accepted the duty he owed to the court, and the Plaintiffs did not show that there is a realistic concern that Mr. Gillin’s evidence should not be received because he is unable or unwilling to comply with his duties.

[35] It remains to be determined whether the court will be assisted by Mr. Gillin’s opinion, but that Mr. Gillin was assisted in preparing the opinion by his own lawyers is not a cause of concern. SkyLaw’s influence on the opinion, if any, was not partisan and rather insulated Mr. Gillin from the influence of the Defendants and the Defendants’ lawyers that commissioned the opinion.

[36] The Ontario Court of Appeal addressed several of the issues that arise in the immediate case in Moore v. Getahun, supra. In that case, the Court of Appeal disagreed with the trial judge who had held that it was improper for a party’s counsel to assist an expert witness in the preparation of the expert’s report. The trial judge was concerned that the necessary impartiality and independence of the expert would be destroyed by a litigant’s lawyer assisting his or her client’s expert witness in the preparation of the opinion. Justice Sharpe, writing the judgment of the Court of Appeal, disagreed.

[37] Where a litigant’s lawyer is involved in the preparation of the expert’s opinion, Justice Sharpe thought that the risk of interference with the witness’ independence and impartiality was low because the ethical and professional standards of the legal profession forbid counsel from engaging in practices likely to interfere with the independence and objectivity of expert witnesses and the ethical standards of the witnesses’ professional bodies typically place an obligation upon their members to be independent and impartial when giving expert evidence. Further, the cross-examination of the expert witness would disclose if the witness had become a partisan or had given biased evidence.

[38] Justice Sharpe supported the view that it was all of normal, proper, and helpful to have an expert consult with the lawyer of the party that had commissioned the opinion. The consultation allowed the litigant’s lawyer to assist the expert in framing his or her opinion in a way that was comprehensible and responsive to the pertinent legal issues in the particular case. At paras. 63 and 64 of his decision, Justice Sharpe stated:

Consultation and collaboration between counsel and expert witnesses is essential to ensure that the expert witness understands the duties reflected by rule 4.1.01 and contained in the Form 53 acknowledgment of expert's duty. Reviewing a draft report enables counsel to ensure that the report (i) complies with the Rules of Civil Procedure and the rules of evidence, (ii) addresses and is restricted to the relevant issues and (iii) is written in a manner and style that is accessible and comprehensible. Counsel need to ensure that the expert witness understands matters such as the difference between the legal burden of proof and scientific certainty, the need to clarify the facts and assumptions underlying the expert's opinion, the need to confine the report to matters within the expert witness's area of expertise and the need to avoid usurping the court's function as the ultimate arbiter of the issues.
Counsel play a crucial mediating role by explaining the legal issues to the expert witness and then by presenting complex expert evidence to the court. It is difficult to see how counsel could perform this role without engaging in communication with the expert as the report is being prepared.

[39] If consultation between the expert and the litigant’s counsel, whose loyalty would be to the litigant, is proper, it is difficult to understand why consultation between the expert and his or her own lawyer, whose loyalty is only to the expert, could be improper.

[40] As Justice Sharpe notes in Moore v. Getahun, the expert needs to understand the intersection between his or her expertise and the legal issues in the case. In the immediate case, that intersection was acute. It is worth emphasizing that Mr. Gillin’s opinion was about how a corporation ought to comply with the Ontario Securities Act, and that being the context, Mr. Gillin’s obtaining assistance in “framing the opinion” (Justice Sharpe’s phraseology) into legal issues was all of normal, proper, and helpful. In this case, Mr. Gillin’s opinion was about the actions of a corporation and its officers’ and directors’ compliance with legal requirements, and his obtaining assistance from independent lawyers knowledgeable about the Ontario Securities Act poses no inherent danger to our justice system and is no potential miscarriage of justice.

[41] In the immediate case, SkyLaw was retained by Mr. Gillin and in consulting with him, SkyLaw had no conflicting duties to the Defendants, as would have Davies Ward Philips and Vineberg LLP. SkyLaw was not counsel for one of the parties and had no reason to instruct Mr. Gillin about what conclusions he should draw from the research and other information it provided. SkyLaw would have no motive to interfere with Mr. Gillin’s independence and objectivity and there are no reasonable grounds to suspect that SkyLaw would interfere with Mr. Gillin’s duties to the court.

[42] In the immediate case, it is not suggested that the Defendants’ counsel, Davies Ward Philips and Vineberg LLP, influenced Mr. Gillin in delivering his opinion and there is no reason to suspect that SkyLaw influenced Mr. Gillin other than to deliver a report in compliance with his professional responsibilities and his duties under the Rules of Civil Procedure.

[43] Absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, the Plaintiffs are not allowed to demand production of draft reports, communications, and notes of interactions between SkyLaw and Mr. Gillin. Absent an actual foundation for improper communications, this material is covered by litigation privilege; see Moore v. Getahun, supra at paras. 67-78. This is not a case like Ebrahim v. Continental Precious Minerals Inc., 2012 ONSC 1123, where there was a reason to order the production of the litigation-privileged material.

[44] In the last regard, it is worth pointing out that analytically, the refusal to produce the draft reports and the correspondence between Mr. Gillin and SkyLaw is about the Defendants’ litigation privilege, not Mr. Gillin’s – he is a witness not a litigant - and the court is not concerned about whether Mr. Gillin’s communications with SkyLaw are privileged communications between a lawyer and client. The court is not concerned about any privilege between lawyer and client because the analysis in the immediate case need not go beyond determining whether the Mr. Gillan’s opinion was subject to litigation privilege, which I find it to have been.

[45] Had I determined that there was no litigation privilege, I would have gone on to determine whether some other privilege applied and whether that privilege had been waived in the circumstances of this case. This analysis, however, is not necessary because Moore v. Getahun, supra and other cases establish that based on litigation privilege, absent a factual foundation to support a reasonable suspicion that a party’s counsel improperly influenced the expert, the opposing party is not allowed to demand production of the expert’s draft reports. See also Bruell Contracting Ltd v. J & P Levesque Bros Haulage Ltd, 2015 ONCA 273.

D. CONCLUSION

[46] For the above reasons, the Plaintiffs’ refusals motion is dismissed.

[47] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Defendants’ submissions within 20 days of the release of these Reasons for Decision followed by the Plaintiffs’ submissions within a further 20 days.

Perell, J.

Released: November 2, 2016

CITATION: Wright v. Detour Gold Corporation, 2016 ONSC 6807

COURT FILE NO.: CV-14-504010CP

DATE: 20161102

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TERRY WRIGHT and MARTIN GERARD

Plaintiffs

– and –

DETOUR GOLD CORPORATION and GERALD PANNETON

Defendants

REASONS FOR DECISION

PERELL J.

Released: November 2, 2016

Wright v. Detour Gold Corporation, 2016 ONSC 6807

Case Summary

A. INTRODUCTION

B. FACTUAL BACKGROUND

C. DISCUSSION AND ANALYSIS

D. CONCLUSION

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 5

Legal Tests 1

Legislation 1