COURT FILE NO.: CV-12-464162
DATE: 20180614
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
STEVEN SIMONS, CANADIAN HIV/AIDS LEGAL NETWORK, PRISONERS WITH HIV/AIDS SUPPORT ACTION NETWORK, CANADIAN ABORIGINAL AIDS NETWORK and CATIE
Applicants
– and –
MINISTER OF PUBLIC SAFETY, CORRECTIONAL SERVICE OF CANADA, COMMISSIONER OF THE CORRECTIONAL SERVICE OF CANADA and ATTORNEY GENERAL OF CANADA
Respondents
Jillian Evans and Lori Stoltz for the Applicants
Andrew Law and Kathryn Hucal for the Respondents
HEARD: June 5, 2018
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] This is nominally a refusals motion. In reality, however, it is part of a remapping of the law of privilege and the law of civil procedure associated with retaining and preparing an expert to testify. In 2015, the shoreline of that law was changed after two major judicial decisions reshaped the practice and procedure. This refusals motion is about the aftermath of the Ontario Court of Appeal’s decision in Moore v. Getahun,[^1] and the Supreme Court of Canada’s decision in White Burgess Langille Inman v. Abbott and Haliburton Co.[^2]
[2] By application, the Applicant Steven Simons, who is a former inmate of a federal penitentiary, and four public interest groups,[^3] sue the federal Minister of Public Safety, the Correctional Service of Canada, the Commissioner of the Correctional Service of Canada, and the Attorney General of Canada. The Applicants seek an order pursuant to s. 52 of the Constitution Act, 1982, declaring that ss. 2(1), 40(i), 40(j) and all related provisions of the Corrections and Conditional Release Act[^4] and the Corrections and Conditional Release Regulations[^5] that prohibit an inmate from possessing a syringe and injection equipment unjustifiably infringe ss. 7 and 15 of the Canadian Charter of Rights and Freedoms and are of no force or effect.
[3] The application is supported by affidavits from 14 affiants, 8 of whom are expert witnesses, including Dr. Margaret Millson, Dr. John Farley, and Dr. Hans Wolff. During their respective cross-examinations, Drs. Millson, Farley, and Wolff each refused to answer questions about the preparation and authorship of their expert reports on the grounds of litigation privilege. The Respondents now move for an order: (i) requiring these expert witnesses to re-attend their cross-examinations to answer improperly refused questions and any proper questions arising from their answers; and (ii) requiring production of draft affidavits and notes of discussions between the applicants and these 3 experts.
[4] For the reasons that follow, the refusals motion is dismissed.
B. Facts
1. The Expert Witnesses
[5] At the heart of the Applicants’ case are the arguments that access to sterile injection equipment is an essential healthcare service for people who inject drugs, and that the Correctional Service’s failure to permit access in its prisons contravenes standards of medical practice in nursing and in the fields of infectious disease, public health/preventive and addiction medicine. In support of their application, the Applicants proffered affidavits from, among others:
• Dr. John D. Farley. Dr. Farley is a specialist in internal medicine and infectious diseases. He has provincial, federal, and international experience as a public health physician. Since December 2000, in prison clinics and in external clinics, Dr. Farley has provided medical care to prisoners and former prisoners of Correctional Service’s penitentiaries in British Columbia.
o Dr. Farley swore five affidavits dated: November 3, 2014, February 12, 2016, October 11, 2016, May 2, 2017, and October 23, 2017.
• Dr. Margaret Millson. Dr. Millson is a physician specializing in public health and preventive medicine with 30 years’ experience in public health practice, teaching and epidemiological research. Her research area is HIV risk prevention, particularly in drug addicts and marginalized populations. She is professor emerita of the Dalla Lan School of Public Health at the University of Toronto.
o Dr. Millson swore four affidavits dated: August 7, 2014, February 4, 2017, June 12, 2017, and June 28, 2017.
• Dr. Hans Wolff. Dr. Wolff is a specialist in internal medicine with a Masters Degree in Public Health. He is the Chief of the Division of Correctional Medicine and Psychiatry at the University Hospitals of Geneva, Switzerland. The Division operates the medical units for Geneva’s penitentiary system. He is Switzerland’s representative on the European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment.
o Dr. Wolff affirmed five affidavits dated: February 20, 2015, February 4, 2016, October 14, 2016, February 9, 2017, and June 7, 2017.
[6] Drs. Millson, Farley, and Wolff each signed an Acknowledgement of Expert’s Duty.
2. Dr. Millson’s Cross-Examination
[7] Dr. Millson’s first instructions for her retainer as an expert witness came on December 5, 2012, when Sandra Ka Hon Chu, who is a Senior Policy Analyst with Canadian HIV/AIDS Legal Network – one of the Applicants – sent the following email to Dr. Millson:
Hi Peggy [Dr. Millson],
I hope all is well with you - and my apologies for the delay in touching base with you about the PNSP case I mentioned earlier this year. After some discussion with our lawyers on the case, we decided the best approach in developing your expert affidavit is for me to have a chat with you about what you might want to say in your affidavit. Based on this open conversation, I will put together a very rough draft that I hope you can finalize. This ensures the affidavit is as "impartial" as possible and that I am not putting words in your mouth (not that you would let me do that, but it is something the courts have been increasingly sensitive to). So, do you have time next week to chat about what you would want to see in your affidavit?
Thanks! And my best wishes,
Sandra
[8] Dr. Millson swore her first affidavit on August 7, 2014. More affidavits followed as the litigation proceeded.
[9] After swearing her first affidavit, Dr. Millson received four emails from the Applicants’ counsel. This correspondence, along with Ms. Chu’s email of December 5, 2012, constitutes Dr. Millson’s Letter of Instructions, which was eventually produced to the Respondents.
[10] Of the communications of instructions: (a) the email of January 26, 2016, asked Dr. Millson to update her 2014 affidavit; (b) the email of February 1, 2016, forwarded four articles for her consideration; (c) the email of October 4, 2016 forwarded affidavits from the Respondents for Dr. Millson’s review; and (d) the email of March 24, 2017 forwarded more affidavits from the Respondents for Dr. Millson’s review.
[11] In her affidavits, Dr. Millson opined that: (a) injection drug users who share injecting equipment are at high risk of HIV transmission, in addition to other harms (abscess, related infections and overdose); (b) needle exchange programs are effective interventions that reduce the incidence of needle-sharing and other practices that carry risks of harm; (c) needle exchange programs do not increase drug use but provide an important bridge to healthcare; (d) needle exchange programs improve occupational safety; (e) needle exchange programs are an essential component of healthcare for injection drug users in Canada; (f) needle exchange programs are cost effective; (g) providing injection drug users with access to bleach to clean shared needles (Corrections Canada’s current approach) is not an acceptable practice; (h) needle exchange programs have been successfully implemented in a range of European prisons with evidence of a decline in needle sharing behaviour and no evidence of increased drug injection or significant safety concerns for prisoners or staff, and (i) needle exchange programs should be used instead of bleach to address the risks of injection drug use in the prison setting.
[12] Dr. Millson was cross-examined on January 11, 2018. For present purposes, the following excerpts from the transcript of her 56-page (190 questions) cross-examination are pertinent:
Q.18 I note that you didn't append your letter of instruction seeking your opinion?
A. No, I did not.
Q.19 Could you please provide that to us?
MS. STOLTZ: I've got them.
MS. HUCAL: Okay.
Q.21 When you completed your first affidavit, how many drafts did you complete before you –
MS. STOLTZ: Objection. The process of developing the affidavit is a matter of litigation privilege. We do not waive that. You are entitled, as I understand it, to copies of the letters of instruction. A Court of Appeal has made clear that you don't have open access to the file relating to communications with counsel or the preparation of drafts unless and until you are able to provide some kind of foundation to be able to give an air of reality to the notion that Dr. Millson has somehow been improperly influenced by counsel in the preparation of the Affidavit. So, you are free to cross-examine. I will provide you with the Letters of Instruction, you can cross-examine on the Acknowledgement of Expert's Duty, but we do not waive litigation privilege over the file.
MS. HUCAL: I'm not asking you to, but as I understand, Dr. Millson is giving an expert opinion, and so I understood that in terms of the affidavits that were presented, these were things that she drafted as an expert. But if you're suggesting that's not the process that was completed and that, in fact, counsel was involved in the drafting of those affidavits, then I accept that.
MS. STOLTZ: The Court of Appeal has made clear that there's nothing wrong with counsel assisting in the preparation of affidavits. So, you can cross-examine to try and establish a foundation for the proposition that Dr. Millson did not understand her role as she has explained it, but we do not waive privilege over the contents of the file or communications between counsel.
MS. HUCAL: And I'm not asking her to, and I haven't asked her for any communications between counsel. I was trying to understand her process in terms of how she decided what issues to address, what evidence to include as exhibits, but if that's all subject to privilege ---
MS. STOLTZ: Well, her instruction -- a list of the topics that were addressed in her affidavit are set out in one of the affidavits, as you fairly know. So, you can ask her what she -- how it is she decided to include what she did. Referable to those topics, you can ask her about those topics.
Q.40 Thank you. So your counsel also provided me with five pieces of correspondence which appear -- sorry, four emails and one letter which I have been advised constitutes the instruction letters to you with regards to your evidence in this case. So, I just want to put this to you to confirm that this was -- it's an email from Sandra Chu dated -- now, I'm not sure of the date. It's 12/5/10. Is that 2012 that you received that · · · email?
A. It would be, yes.
Q.41 Okay. And that initiated your involvement in this application; is that correct?
A. Yes.
Q.42 And if you could just review this. I'm going to give you emails dated March 24th, 2017, October 4th, 2016, February 1st, 2016, and January 26th, 2016. Just to confirm that these are the -- oh, do you have the copies there? Can you just confirm that those are all of the correspondence that you received in terms of instructions with regards to your evidence in this case?
A. To the best of my recollection, yes.
Q.43 In terms of the first email that you received from Sandra Chu, did you indeed have a chat with Ms. Chu as indicated in that email?
MS. STOLTZ: Objection.
MS. HUCAL: On what basis?
MS. STOLTZ: That's privileged.
MS. HUCAL: But you've provided me with the email that indicates she had a chat. So, you're saying the fact that she had a chat isn't privileged, but I can't ask her if this indeed happened?
MS. STOLTZ: I'm prepared to allow you to ask whether the conversation took place, but the substance of the conversation is privileged.
MS. HUCAL: I asked her, "Did you have this chat?"· So that you're okay with - is that correct?
MS. STOLTZ: Yes.
MS. HUCAL: Thank you.
THE WITNESS: So, yes, I did.
Q.44 All right. Then the process described in that email occurred?
MS. STOLTZ: Objection.
MS. HUCAL: Lori, you can't put in something that opens it up, and then say I can't ask questions on it.
MS. STOLTZ: You can cross-examine as to her understanding of her role. I maintain privilege over the content of all communications between Dr. Millson and all communications related to the preparation of the affidavit.
MS. HUCAL: So, I believe that because you've given me this instruction letter which describes something that was supposed to happen, that I'm entitled to ask questions about what is recorded in this email and whether it did indeed occur. You're saying no, so I'm going to object to that, and then I'm going to retain the right to have Dr. Millson return to answer questions about this.
Q.45 Just for the record, because your counsel has objected to your answering these questions, I would ask whether you had that conversation.
MS. STOLTZ: She's answered that. She said she did.
Q.46 Whether a rough draft was put together by Ms. Chu as she indicated.
MS. STOLTZ: Objection.
MS. HUCAL: I know you're objecting. I just want the questions on the record.
Q.47 And what it was that she advised she wanted to see in her affidavit as indicated.
MS. STOLTZ: Sorry, who's the she?
Q. 48 Sorry, in the email, Ms. Chu asked: "Do you have time next week to chat about what you would want to see in your affidavit? Thanks." And I would like to ask Dr. Millson what her response was to that question.
MS. STOLTZ: Objection.
Q.190 […]
MS. STOLTZ: Before we close the examination, I just wanted to address the issue on the record. We had an off-the-record discussion that I just think, in fairness, should be reflected on the record. In relation to the issue of the suggestion that you were -- well, the statement that you were reserving your right to have Dr. Millson back, we had a conversation off the record in which I communicated to you that you could fairly take it that counsel had assisted in the preparation of the affidavit, that there had been communications with Dr. Millson to that end and that we, the applicants, are asserting litigation privilege over that. But nonetheless, you were fully entitled to explore with her, you know, what she addressed in her affidavits, what she chose to include versus what she didn't, and you were satisfied with that, as I understood it, and we proceeded on that basis. Is that a fair summary?
MS. HUCAL: Yes.
MS. STOLTZ: Thank you. No questions in reexam.
3. Dr. Farley’s Cross-Examination
[13] Dr. Farley’s first instructions for his retainer as an expert witness came on May 10, 2012, when Ms. Chu sent the following email to Dr. Farley:
Dear Dr. Farley,
I hope all is well with you -and my apologies for the delay in touching base with you about the PNSP case I mentioned earlier this year. (Congratulations also on that fantastic piece in the CMAJ about the cost of HCV treatment!] After some discussion with our lawyers on the case, we decided the best approach in developing your expert affidavit is for me to have a chat with you about what you might want to say in your affidavit. Based on this open conversation, I will put together a very rough draft that I hope you can finalize. This ensures the affidavit is as "impartial" as possible and that I am not putting words in your mouth (not that you would let me do that; but it is something the courts have been increasingly sensitive to). So, do you have time next week to chat about what you would want to see in your affidavit? Can call you at your convenience. Thanks! And my best wishes,
Sandra
[14] Dr. Farley swore his first affidavit on November 3, 2014. More affidavits followed as the litigation proceeded. After swearing his first affidavit, Dr. Farley received more emails similar to those that had been sent to Dr. Millson, which are described above, asking for updates and comments on the material being filed in the litigation.
[15] In his affidavits, Dr. Farley opined that: (a) a large proportion of HCV infections in Canada are associated with injection drug use; (b) there was a need for increased attention to correctional populations and Corrections Canada in particular; (c) the prison setting offers an opportunity to treat patients with HCV from both an individual and public health perspective; (d) HCV treatment is expensive, but it has the potential to reduce the higher costs associated with untreated HCV infection; (e) meaningful HCV treatment must include efforts to prevent reinfection and the prison environment offers important opportunities for health education, prevention, and treatment of addiction in a high risk population; (f) while Corrections Canada offers bleach kits for needle cleaning and some access to methadone treatment, it refuses to implement needle exchange programs within prisons; (g) in prisons programs for addiction and health-related interventions are scarce and frequently based on abstinence rather than harm reduction ideology; (h) providing prisoners with bleach to clean needles is a “half-measure” since bleach is known to be an ineffective way of preventing disease transmission; and (i) inmates become re-infected with HCV in prison and Corrections Canada’s rejection of basic harm reduction measures is a nation-wide phenomenon exposing Canadian taxpayers to unnecessarily high costs of HCV treatment.
[16] Dr. Farley was cross-examined on January 17, 2018. For present purposes, the following excerpts from the transcript of his 76-page (240 questions) cross-examination are pertinent:
Q.22 Okay. You're giving your evidence in this proceeding as an expert witness?
A. Yes, I am.
Q.23 Okay. And your counsel this morning has provided me with copies of your Letters of Instruction for your expert evidence, and I'll ask that be marked as Exhibit 1.
Q.24 And the first of these instruction letters is an email from Sandra Chu to ….. That's your email address?
A. Yes, it is.
Q.25 And Ms. Chu is a senior policy analyst with the Canadian HIV/AIDS Legal Network?
A. Yes.
Q.26 And you understand them to be an applicant in this proceeding?
A. Yes, I do.
Q.27 Okay. And in this discussion or in this email, Ms. Chu notes -- about halfway through the third paragraph, she states: "Based on this open conversation -- I assume she's having with you -- I will put together a very rough draft that I hope you can finalize." Is that an accurate statement of how the affidavit was drafted?
MS. STOLTZ: Objection.
Q.28 Did you draft your first affidavit?
MS. STOLTZ: Objection. So we went through this with Dr. Millson's cross-examination, and I just want to be clear and put on the record that we assert litigation privilege over the entire of the expert file. You can take it that Dr. Farley was assisted in the preparation of his affidavit, that there were communications to that end. You have been provided with copies of the instructing letters. Dr. Farley has relayed in the affidavit sworn May 2nd, 2017. He has signed an Acknowledgement of Expert Duty that was included with his first Affidavit. You are fully entitled to explore the matters addressed, how he -- you know, what he chose to include, what you might think he should have addressed that he didn't, all of that, but as for communications in relation to the preparation of the affidavit, we object based on privilege.
MR. LAW: I appreciate that, Counsel. The Court of Appeal has said that litigation privilege over communications with respect to the preparation of expert reports does yield in certain circumstances, one of which being where the expert has not, in fact, drafted the affidavit. I think I'm entitled to explore that on the examination.
MS. STOLTZ: The Court of Appeal has -- that's not my understanding of what the Court of Appeal has said.
MR. LAW: Okay. Well, I have your refusal. In terms of the instructions, you're referring to paragraph 2 of Dr. Farley's reply affidavit, first reply affidavit?
MS. STOLTZ: Dr. Farley -- yeah, he indicates there he was instructed by the applicants to provide his expert opinion and related information on the matters set out below.
MR. LAW: Okay.
MS. STOLTZ: And in the affidavits that he has commented on from the other side, he has indicated those affidavits on which he has provided comment.
MR. LAW: Well, we've got our positions on the record. I'm just going to ask for an undertaking to provide all draft expert reports prepared by Dr. Farley and notes of all communications between Ms. Chu and counsel with respect to Dr. Farley in the preparation of Dr. Farley's expert reports.
MS. STOLTZ: Refused.
4. Dr. Wolff’s Cross-Examination
[17] In his affidavits, Dr. Wolff opined that: (a) injection drug use carries a high risk for infection with bloodborne viruses that present serious risks of health, including HIV, HCV and Hepatitis B; (b) transmission of these bloodborne viruses is a growing crisis worldwide given the increased imprisonment of people who use or deal in drugs, and the over-crowding of prisons in many settings; (c) despite efforts to eradicate drug use or trafficking in prison, prisoners manage to gain access to illegal drugs, including prisoners who engage in first-time drug use during incarceration; (d) the risk of acquiring bloodborne viruses in prison is amplified by the large numbers of injection drug users who continually inject in this setting, where the population is constantly changing and composed of injecting partners from diverse communities; (e) the scarcity of sterile injecting equipment among prisoners promotes sharing of needles; (f) scarce equipment compels prisoners with HIV and HCV to keep their conditions secret but to continue sharing the contaminated equipment; (g) needle and syringe programs to reduce unsafe injecting are an important intervention to reduce unsafe injecting; (h) the evidence available from the few existing needle exchange systems suggest their benefits are similar to community programs; (i) there is no valid evidence that these programs are unsafe or increase drug use; (j) bleach is not effective in the prison setting; and (k) needle exchange programs are necessary, feasible, effective and low cost measures that should be implemented in every prison world-wide.
[18] Dr. Wolff was cross-examined on January 26, 2018. For present purposes, the following excerpts from the transcript of his 84-page (230 questions) cross-examination are pertinent:
Q.28 Okay. Counsel, did you bring with you any letters of instruction that were provided to Dr. Wolff in preparation for his affidavit?
MS. STOLTZ: No, I didn't. I take the position that the instructions and all other aspects of rule 53.03 are fully complied with in the affidavits themselves. I have reviewed the authorities as a result of the position that's been taken by your office in other cross-examinations, and I'm satisfied that the obligations under rule 53.03 are fully satisfied by providing the instructions as they have been in the affidavits, in particular the first one, and that being the case we assert litigation privilege over all contents of the file including communications with expert witnesses, etcetera.
MR. GORHAM: Okay. Madam Reporter, can we go off the record for a moment?
Off-the-record discussion
MR. GORHAM: So, counsel, just for the record, that's a refusal, a refusal to provide that correspondence?
MS. STOLTZ: Correct.
MR. GORHAM: And I'm going to ask you a couple other questions or inquiries just – I anticipate they're going to be refusals as well, but I would like to put them on the record. Did anyone from your office or from any of the applicants draft any draft affidavits for Dr. Wolff?
MS. STOLTZ: You can take it that Dr. Wolff was assisted by counsel in the preparation of his affidavit, and there were communications with Dr. Wolff to that end. We maintain privilege over the entirety of those communications.
Q.29 And just to confirm, in a prior examination cross-examination of Dr. Margaret Millson you did provide us with those letters and correspondence. You're not prepared to provide those correspondence with respect to Dr. Wolff?
MS. STOLTZ: That's correct. As I explained, having reviewed the authorities -- basically I provided more than I was obliged to do is my assessment of the matter, having reviewed the authorities at greater length given the position taken on the cross-examination of Dr. Millson.
C. The Arguments of the Parties
[19] The Respondents’ argument is that litigation privilege is not absolute and that it yields when there are reasonable grounds to suspect communications likely to interfere with the witness’ duties of independence and objectivity. In the immediate case, the experts’ evidence was written by one of the parties, and thus the Respondents submit that there are reasonable grounds to question the independence and impartiality of the witnesses. Therefore, to ensure that the independence of the experts is properly tested, the experts should be required to produce draft affidavits and notes of consultation and they should be required to re-attend their cross-examinations to answer improperly refused questions regarding their involvement in the writing of their affidavits.
[20] The Applicants’ argument is that there is nothing wrong in an expert receiving assistance in drafting or preparing his or her affidavit and unless and until there is an evidentiary foundation giving an air of reality to the idea that an expert has been improperly influenced by counsel in the preparation of the expert’s affidavit, the communications between counsel and the expert are subject to litigation privilege. In the immediate case, there was nothing in Ms. Chu’s disclosed involvement in meeting with the experts and assisting in the preparation of their affidavits that establishes an air of reality to the allegation that the expert’s independence was compromised. Absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, a court will not order production of draft reports or notes of interactions between counsel and an expert witness.
D. Discussion
1. Jurisdiction
[21] Rule 34.15(1) of the Rules of Civil Procedure provides that where a person fails to answer any proper question or to produce any document or thing that he or she is required to produce, the court may order or permit the person being examined to re-attend at his or her own expense to answer the question. Where such an order is made, the witness shall also answer any proper questions arising from the answers given to the improperly refused question.
2. Expert Evidence and the Duty of Experts
[22] Drs. Millson, Farley, and Wolff are retained experts, and as the discussion in the next section of these Reasons for Decision will reveal, an expert witness’ communications with the party that retained them and with that party’s lawyer are with some exceptions protected by litigation privilege. Litigation privilege, however, is not absolute, and the underlying issue in the immediate case is when do the communications between a party and his or her retained expert lose the protection of litigation privilege. In order to understand this issue about litigation privilege, it must be placed within the context of the law of evidence about: the qualification of expert witnesses to testify; the admissibility of expert evidence; and the weight to be given an expert’s evidence if admitted.
[23] 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.[^6] There is, however, an exception for witnesses duly qualified to express an expert's opinion.[^7] There is a two-stage test for the admission of opinion evidence.[^8]
[24] In the first stage, (the threshold stage), the party proffering expert evidence must satisfy the four factors from R. v. Mohan,[^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.[^10] 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.
[25] In the threshold stage, 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.[^11] Second, as codified by rule 4.1.01 of the Rules of Civil Procedure, the witness must be independent, objective, and impartial.
[26] Rule 4.1.01(1) of the Rules of Civil Procedure 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
(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.
[27] 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.
[28] 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
(c) to provide such additional assistance as the court may reasonably require, to determine a matter in issue.
- 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
[29] It should be noted that rule 53.03(2.1) is a carefully defined intrusion on litigation privilege,[^12] because it requires the expert to disclose, among other things: the instructions provided to the expert in relation to the proceeding; a description of any research conducted by the expert that led him or her to form the opinion; and a list of every document relied on by the expert in forming the opinion.
[30] White Burgess Langille Inman v. Abbott and Haliburton Co., supra, is now the leading case about the independence (non-partisan) factor of expert testimony.
[31] The facts of the case were that after the shareholders of Abbott and Haliburton Co. retained an accountant from 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.
[32] 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.
[33] 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. 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] Thus, it emerges from White Burgess Langille Inman v. Abbott and Haliburton Co., that to determine whether the threshold requirement of non-partisanship of the expert witness is satisfied, the judge must have regard to: (a) the particular circumstances of the proposed expert; (b) the nature and extent of his or her interest or connection with the litigation or a party; (c) and the substance of the proposed evidence and then assess whether the expert is able and willing to carry out his or her primary duty to the court.
[35] What also emerges from White Burgess Langille Inman v. Abbott and Haliburton Co. are three other factors; namely: (1) the threshold requirement is not particularly onerous; (2) it will likely be quite rare that a proposed expert's evidence would be ruled inadmissible for failing to meet it; and (3) 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.
[36] The overarching point that emerges from White Burgess Langille Inman v. Abbott and Haliburton Co. is that partisanship or non-partisanship of an expert witness is highly contextual and depends upon all of: (a) the nature and character of the expert witness, including his or her personal qualifications and personal history; (b) the subject matter of the expert’s evidence; and (c) the particular circumstances of the case, including the interconnections amongst: the parties, the witnesses, and the legal and factual issues of the particular case. As Justice Cromwell observed, the judge must determine whether the expert is partisan or non-partisan having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence.
3. Litigation Privilege and Experts’ Reports
[37] I turn now to the matter of litigation privilege which is the critical issue in the immediate case. It is the critical issue because largely based on Ms. Chu’s email messages, the Defendants submit that there should be disclosure of material normally protected from disclosure by litigation privilege.
[38] Oral or written communication between a lawyer and a client or between a lawyer and a third party made exclusively or for the dominant purpose of the client’s contemplated or pending litigation are privileged.[^13] The rationale for the privilege is that the exclusion of the evidence is necessary to facilitate the adversarial system of dispute resolution. Since the fact-finding process is adversarial, the combatants need a “zone of privacy” to prepare for the hearing and the resolution of their dispute.
[39] A significant feature of the litigation privilege is that it will cover communications between a lawyer and a consultant, investigator, or expert hired to provide information, advice or evidence for the litigation. Thus, litigation privilege does not require a lawyer and client relationship, and a self-represented litigant is entitled to assert litigation privilege with respect to his or her work product for the purposes of litigation.[^14]
[40] Litigation privilege is both broader and narrower than lawyer and client privilege. Litigation privilege is broader insofar as it covers some communications not covered by lawyer and client privilege, and it is narrower insofar as it is temporally connected to the litigation and may not survive its termination.
[41] In the immediate case, there is no doubt that Drs. Millson’s, Farley’s, and Wolff’s draft affidavits and the notes of discussions between the Applicants and these experts are covered by litigation privilege. However, the Respondents are correct that litigation privilege is not absolute, and, thus, the issue in the immediate case is whether the circumstances of this case, the privilege should be regarded as waived or abrogated.
[42] The Respondents argue that the case at bar is like Ebrahim v. Continental Precious Minerals Inc.,[^15] which was written three years before the Court of Appeal released its decision in Moore v. Getahun,[^16] and the Supreme Court released its decision in White Burgess Langille Inman v. Abbott and Haliburton Co.[^17] In Ebrahim v. Continental Precious Minerals Inc., the Court determined that there was a live issue about the independence of an expert witness and hence an issue about the qualifications of the expert witness to testify. In the particular circumstances of the case, the expert was required to disclose his communications with counsel; i.e., the communications were not protected by litigation privilege.
[43] At the time when Ebrahim v. Continental Precious Minerals Inc. was decided, there was an unsettled question in the law and in the profession as to the extent to which litigation privilege is waived when an expert is called to give evidence. In Ebrahim v. Continental Precious Minerals Inc.,[^18] Justice D.M. Brown accepted that the implied waiver should be narrowly construed, but he found that litigation privilege had been waived in the particular circumstances of that case where the expert revealed that he did not draft his own report, which was in the form of his affidavit.
[44] Like the case at bar, Ebrahim v. Continental Precious Minerals Inc. was a refusals motion. The background facts were that the Ebrahim family owned 11 million shares of Continental Precious Minerals Inc., a junior mining company. At Continental’s annual general meeting, the family members and others planned to vote in a new board of directors. Management held only proxies representing 8.8 million shares. The Ebrahim family’s plan, however, failed when the company’s transfer agent allowed their proxy to vote only 2.2 million shares, with the result that management held more proxies and its slate of board of directors remained in place. An oppression remedy application followed, and in that application, management tendered an expert report from Wesley Hall, the CEO of Kingsdale Shareholder Services Inc., a company that had in the past provided services to Continental Precision Metals.
[45] In the run-up to the hearing of the oppression remedy application, Mr. Hall was cross-examined. During his cross-examination, he admitted that although his firm had done the research for his affidavit, he had not drafted his own affidavit, which had been prepared by counsel. During his cross-examination, on the direction of Continental’s counsel, Mr. Hall refused on the basis of litigation privilege to produce any written communications with Continental’s lawyers, and he refused to produce copies of any draft of the affidavit that had been prepared for him.
[46] In Ebrahim v. Continental Precious Minerals Inc., Justice D.M. Brown concluded that litigation privilege had been waived, and he ordered the production of the communications and the draft affidavits prepared for Mr. Hall. Justice Brown stated at paragraphs 74-75 of his decision:
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.
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. I order Mr. Hall to re-attend for further cross-examination and to answer Questions 200 and 201 refused on his cross-examination conducted on January 19, 2012. I will want that evidence available before me at the final hearing so that I can assess Mr. Hall's expert evidence. I place a 30 minute time limit on such further cross-examination.
[47] Ebrahim v. Continental Precious Minerals Inc. was approved of but distinguished in Moore v. Getahun,[^19] where the Court of Appeal held that there is no routine obligation to produce draft expert reports and, absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, a court will not order production of draft reports or notes of interactions between counsel and an expert witness.
[48] Generally speaking, Moore v. Getahun, can be seen as a case supporting a robust notion of litigation privilege and as supporting the involvement or participation of counsel in the preparation of an expert witness’s report and affidavit evidence. In Moore v. Getahun, 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, and he endorsed the involvement of the parties’ lawyers in the marshalling of evidence.
[49] 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.
[50] In the Court of Appeal, Justice Sharpe thought that where a litigant's lawyer is involved in the preparation of the expert's opinion, 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. Further, 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 still, it was Justice Sharpe’s view that the cross-examination of the expert witness would disclose if the witness had become a partisan or had given biased evidence.
[51] Justice Sharpe approved but distinguished Ebrahim v. Continental Precious Minerals Inc. and held that absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, a party is not to be compelled to produce draft reports, communications or notes of meetings with the expert. These communications remain covered by litigation privilege until an evidentiary foundation is established for their production.[^20]
[52] Later in 2015, in Bruell Contracting Ltd. v. J & P Levesque Bros. Haulage Ltd.,[^21] the Court of Appeal followed Moore v. Getahun. Bruell Contracting Ltd. was a breach of construction contract action. In the trial judgment, without the benefit of the Moore v. Getahun decision, the trial judge had rejected the opinion evidence of the defendant MTO’s (Ministry of Transportation Ontario) expert witness. The trial judge found that there had been improper consultation between MTO’s lawyer and the expert witness. In reaching his conclusion that there had been misconduct by the lawyer, the trial judge reviewed the lawyer’s litigation file that had been produced notwithstanding it was arguably covered by litigation privilege. In reviewing the communications, the trial judge found examples where the lawyer had influenced and shaped the expert’s evidence. Justice Feldman, who wrote the decision for the Court of Appeal, however, concluded that while the trial judge was correct in rejecting the evidence of the expert for other reasons, he was wrong in finding improper consultation and wrong in impugning the conduct of MTO’s lawyer. Justice Feldman also reviewed the communications, and she concluded that counsel’s input was the type of input from counsel to an expert that was contemplated in Moore v. Getahun as appropriate. At paragraph 48 of her judgment, she stated:
- 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.
[53] In Bruell Contracting Ltd. v. J & P Levesque Bros. Haulage Ltd., the communications from counsel included messages informing the expert about available information that might be included in the expert report and noting that the information would be discussed at the trial regardless of whether it was included in the report. The communications included messages suggesting edits to the expert’s report, including adding information that would improve the report and deleting a quote from an MTO employee who was not qualified to comment about the subject matter of the quote. Justice Feldman concluded that based on these communications there was no basis to impugn trial counsel.
[54] Pausing here, it may be noted that Ms. Chu’s letters of instruction are less intrusive and less influential than the communications in Bruell Contracting Ltd. v. J & P Levesque Bros. Haulage Ltd., that were found to be innocuous.
[55] I will return to the issue of what counts for “a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert,” but Moore v. Getahun and Bruell Contracting Ltd., v. J & P Levesque Bros Haulage Ltd., reveal that the involvement of counsel in preparing, drafting, reviewing, and editing an expert witness’s report and affidavit evidence is normal and to be encouraged because counsel play a crucial mediating role by explaining the expert’s responsibilities, by explaining the legal issues to the expert witness, and by counsel presenting complex expert evidence to the court.
[56] In Moore v. Getahun, Justice Sharpe appreciated, however, there were limits on how much consultation was appropriate and that determining those limits was a profoundly contextual matter that depended upon the particular circumstances of the proposed expert, the substance of the proposed evidence, and the particular circumstances of the case.
[57] In Medimmune Ltd. v. Novartis Pharmaceuticals UK Ltd.,[^22] an English patent case - which was favourably referred to by Justice Sharpe in Moore v. Getahun -, Justice Arnold emphasized the contextual nature of the analysis of what degree of consultation is appropriate between counsel and an expert because what was appropriate depended upon the nature of the claim, the expertise of the witness, and other relevant circumstances of the case.
[58] In Medimmune Ltd. v. Novartis Pharmaceuticals UK Ltd., after describing the comparable and similar English rules of practice that govern the production of expert reports and that prescribe the duties of experts, Justice Arnold stated at paras. 108-114 of his judgment:
As Lord Wilberforce said [in Whitehouse v. Jordan [1981] 1 WLR 246], "some degree of consultation between experts and legal advisers is entirely proper". What degree of consultation is appropriate will depend on the nature of the claim, the expertise of the witness and other relevant circumstances of the case.
Expert witnesses in patent litigation stand in a rather unusual position. They are generally leading scientists or engineers in the field in question. Frequently they are academics. Sometimes they are consultants. In most cases, they will not have given expert evidence in patent litigation before, although there are exceptions to this. Not only that, but also they will generally have little experience of the patent system. Where do they have experience, it will generally be as inventors named on patents. As such, they may have had scientific input, but generally they will have learnt little about patent law in the process. In some fields, they may also be accustomed to using patents and patent applications as sources of technical information, but again without necessarily understanding much about patents themselves. When asked to prepare an expert report in a patent case, they will have to consider such questions as the identity and attributes of the person skilled in the art to whom the patent is addressed, the common general knowledge of the skilled person and whether something would or would not be obvious to that person in the light of particular prior art given the constraints imposed by the law of obviousness. Usually, this is not a task of which they will have any previous experience.
For these reasons expert witnesses in patent actions require a high level of instruction by the lawyers. Furthermore, even if they are experienced authors, they need considerable assistance from the lawyers in drafting their report. In practice, most expert reports in patent cases are drafted by the lawyers on the basis of what the expert has told them and the draft is then amended by the expert. This, of course, requires the lawyers to understand what the expert is saying. It follows that the drafting of an expert's report in a patent action involves a steep learning curve for both the expert and the lawyers. The lawyers are learning the technology and the expert is learning enough of the law to understand the questions he must address. It follows that a high degree of consultation between the expert and the lawyers is required. Frequently, the preparation of the report will involve an iterative process through a number of drafts.
It is obvious that this process entails a risk of loss of objectivity on the part of the expert even if the expert is striving to remain independent and impartial. It is therefore crucial that the lawyers involved should keep the expert's need to remain objective at the forefront of their minds at all times. If they cause or allow the expert to lose his objectivity, they are doing both the expert and their client a disservice. They are doing the expert a disservice because he may be subject to criticism during cross-examination and in the court's judgment as a result. They are doing the client a disservice because partisan expert evidence is almost always exposed as such in cross-examination, which is likely to reduce, if not eliminate, the value of the evidence to the client's case.
I will illustrate this point by reference to two common traps for the unwary. The first lies in discussing the prior art. …
The second example arises out of the fact that it is not uncommon for an expert witness to have some involvement with the invention in issue, or a similar invention, in the past. For example, he may have published a paper commenting on the invention or have been a named inventor on a patent application claiming a similar invention filed before or after the one in suit or he may even have given evidence in some form (such as a declaration filed with a patent office). The lawyers who are instructing the expert should make sure that the expert discloses such contributions and, where appropriate, explains them in his report. I am not suggesting that it is incumbent on the expert to carry out a search for such documents, merely that the expert should reveal what he is aware of. It should be brought home to the expert that the lawyers for the opposing party are likely to comb through his published papers and other publicly accessible records (such as patent office files); and that, if they find something relevant that has not been disclosed by the expert in his report, then the expert may be accused in cross-examination of failing in his duty to the court if it appears to favour the opposing party. If this is not made clear to the expert by those instructing him, then the expert may find himself in an uncomfortable position even though he had thought he was complying with his duty to the court (e.g. because he thought at the time of preparing the report that the material was not significant).
The law reports are littered with cases, including some patent cases, in which judges have criticized expert witnesses for failing to be objective or in other ways. It is regrettably true that from time to time an expert witness does succumb to the temptation of giving partisan evidence, and that is clearly unacceptable. But I wish to emphasise that the lawyers who instruct expert witnesses bear a heavy responsibility for ensuring that an expert witness is not put in a position where he can be made to appear to have failed in his duty to the court even though he conscientiously believes that he has complied with that duty. It is also important that courts should be cautious about criticizing an expert witness purely on the basis of omissions from his report unless it is clear that the fault lies with the expert rather than those instructing him, bearing in mind that the court will not usually be privy to the expert's full instructions (whatever may be the effect of CPR r. 35.10(4), which it is not necessary to go into for present purposes).
[59] Justice Arnold’s observations reveal how intricate and complex is the assessment of the role and duties of an expert. His observations reveal that the propriety of counsel’s consultation with an expert must be assessed in the very diverse context of the adversary system; visualize the differences in a trial lawyer’s consultation with an engineer in a patent case compared to the consultation with a crime scene investigator in a murder case, compared to the consultation with an appraiser in a land or business valuation case, compared to the consultation with an economist in a price-fixing case, compared to the consultation with a medical practitioner conducting a medical in a personal injury case, compared to the consultation with a social scientist in a Charter case, compared to the consultation with the public health experts in the immediate case.
[60] The Advocates’ Society’s, Principles Governing Communications with Testifying Experts, recognizes the importance of context to determining the appropriate degree of consultation with a testifying expert. Thus, Principle 4 states:
The appropriate degree of consultation between an advocate and a testifying expert, and the appropriate degree of an advocate's involvement in the preparation of an expert's report or affidavit, will depend on the nature and complexity of the case in question, the level of experience of the expert, the nature of the witness's expertise and other relevant circumstances of the case.
…An appropriate educational dialogue between the expert and the advocate may be essential to ensure that an expert's evidence will be of assistance to the court or tribunal, and can be adduced effectively and efficiently. In many cases, counsel must learn about the scientific, economic or other subject to which the evidence of the expert relates in order to identify what is relevant, and the expert must learn enough about the case or dispute in question, and the legal process, to understand what issues should be addressed. Some expert witnesses have more experience in preparing reports or affidavits and in testifying than others, and some experts are more capable than others of preparing properly organized, succinct and cogent reports or affidavits. Moreover, there is a wide variation in the complexity of expert evidence in particular cases. Expert witnesses in complex litigation are frequently leading economists, accountants, engineers or scientists. In many cases they will not have previously given expert evidence in litigation, or may have done so in only a small number of cases. Many experts have little or no knowledge of the relevant legal process. Some foreign experts, regardless of the expert qualifications, may lack a command of English or French. For all of these reasons, expert witnesses will frequently require consultation with, and instruction by, the advocate before finalizing their reports or affidavits, rather than after.
In some complex cases, particularly, where the expert's evidence is to be entered in by way of affidavit (or other written form), the above considerations may make it appropriate for an advocate to play a greater role in the preparation of an expert's affidavit (or report). The advocate must always ensure that the resulting affidavit or report represents fairly and accurately the independent analysis, observations and conclusions of the expert.
[61] In Wright v. Detour Gold Corp.,[^23] I held that there was no improper communication with an expert witness, when the expert retained his own lawyer to advise him about the legal issues in the case and to help the expert prepare his expert report. I noted that this approach, which did not involve counsel for the party whom had retained the expert, augmented and did not diminish the independence of the expert witness.
[62] With this background, I can turn to the central question in the immediate case, which is whether there is a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert and therefore litigation privilege should be abrogated.
[63] In deciding this central issue, it is known from Moore v. Getahun that litigation privilege is not lightly to be abrogated and that consultation by a party with his or her paid expert is an acceptable and necessary norm of the adversarial system and that the question of abrogating the privilege is not about whether there has been consultation and participation in the preparation of the expert’s opinion but rather the question is whether that necessary consultation and participation exceeds what is appropriate in the particular circumstances of the given case.
[64] In deciding the central question, it is also known from White Burgess Langille Inman v. Abbott and Haliburton Co., supra and from Moore v. Getahun, supra that a great deal of respect should be given to the circumstances that the expert attests to recognizing and accepting his or her duty to the court, that experts have ethical obligations within their own professions, and that lawyers have professional and ethical obligations to ensure that the expert fulfills his or her responsibilities to the court.
[65] And, it is known from the case law that in making the determination about whether an expert’s independence has been compromised, the court should apply a fact-specific and contextual approach that requires the court to consider: (a) the nature and character of the expert witness, including his or her personal qualifications and personal history; (b) the subject matter of the expert’s evidence; and (c) the particular circumstances of the case, including the interconnections amongst: the parties, the witnesses, and the legal and factual issues of the particular case.
[66] Applying this law to the circumstances of the immediate case, in my opinion, there is no factual foundation to support a reasonable suspicion that counsel or the parties improperly influenced Drs. Millson, Farley, and Wolff.
[67] As the case law reveals, there is nothing untoward about consultations per se, and having regard to their respective areas of expertise and having regard to their direct experiences with the public health problems associated with injection drugs being used in penal institutions and in society generally, it was quite natural and understandable that the Applicants would regard and approach Drs. Millson, Farley, and Wolff as a rich source of both fact and opinion evidence about public health programs. It would appear that their opinions and views were established and known before the litigation commenced.
[68] The circumstances in the case at bar are akin to those in White Burgess Langille Inman v. Abbott and Haliburton Co., where it may be recalled that there was nothing untoward about retaining Grant Thornton LLP to provide expert evidence in an accountant’s negligence case after the same firm had advised the plaintiffs that there were problems in the accounting services provided by the defendant.
[69] There is nothing untoward and it is quite natural and understandable that the Applicants would suggest an interview with Drs. Millson, Farley, and Wolff in order to ask them what they could say about the problems associated with the commonness of injection drug use in penitentiaries, a problem about which Drs. Millson, Farley, and Woolf respectively had both the educational background and the in-the-field experience to say a great deal about. In this last regard, it is worth noting that some of their evidence is not pure opinion evidence, but rather is an account of what they saw happen in prisons. As it happens, Drs. Farley and Woolf had direct experience and were witnesses of the events of prison life.
[70] In the case at bar, what Ms. Chu was doing was in many respects not much different than interviewing a witness who perceives the events that are the subject matter of the litigation. She, in effect, was taking a witness statement that she planned to draft as an affidavit for their review and approval. That approach is an everyday occurrence in litigation. I see nothing untoward or improper about the approach of Ms. Chu chatting with these experts about what they might want to say in their affidavits and then putting together a rough draft to be finalized by the experts. She made it very clear that they should honestly expressly their own independent views.
[71] In the context of this case, there is nothing in this approach that suggests that Drs. Millson, Farley, and Wolff would not express an opinion that was the product of their own independent experience, knowledge, and judgment or describe their own experiences and observations of inmate drug use in penitentiaries.
[72] Each case must be decided on its own basis and thus it is not necessary for me to distinguish Ebrahim v. Continental Precious Minerals Inc. from the case at bar, but the cases are indeed distinguishable, given the difference is subject matter of the expert evidence in the two cases, one about corporate law where the retained expert had been on a service-contract retainer with the party that retained him to provide expert evidence and the case at bar which is about rights and freedoms under the Charter and where the experts have no prior retainers with Mr. Simon and the four public interest groups that are the Applicants.
E. Conclusion
[73] For the above reasons, the refusals motion is dismissed. If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Applicants’ submissions within 20 days from the release of these Reasons for Decision, followed by the Respondents’ submissions within a further 20 days.
Perell, J.
Released: June 14, 2018
COURT FILE NO.: CV-12-464162
DATE: 20180614
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
STEVEN SIMONS, CANADIAN HIV/AIDS LEGAL NETWORK, PRISONERS WITH HIV/AIDS SUPPORT ACTION NETWORK, CANADIAN ABORIGINAL AIDS NETWORK and CATIE
Applicants
– and –
MINISTER OF PUBLIC SAFETY, CORRECTIONAL SERVICE OF CANADA, COMMISSIONER OF THE CORRECTIONAL SERVICE OF CANADA and ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR DECISION
PERELL J.
Released: June 14, 2018
[^1]: 2015 ONCA 55, leave to appeal refused, [2015] SCCA No 119. [^2]: 2015 SCC 23. [^3]: (1) the Canadian HIV/AIDS Legal Network; (2) Canadian Aboriginal AIDS Network; (3) Prisoners with HIV/AIDS Support Action Network; (4) Canadian AIDS Treatment Information Exchange (CATIE). [^4]: S.C. 1992, c. 20. [^5]: SOR/92-620. [^6]: Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819. [^7]: R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24. [^8]: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. [^9]: 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. [^10]: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at para. 23; R. v. J.-L.J., 2000 SCC 51; R. v. Trochym, 2007 SCC 6. [^11]: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 at para. 27. [^12]: Nikolakakos v. Hoque, 2015 ONSC 4738 (Master); Moore v. Getahun, 2015 ONCA 55 at paras. 73-75, leave to appeal refused [2015] S.C.C.A. No. 119. [^13]: Blank v. Canada (Minister of Justice), 2006 SCC 39; General Accident Assurance Co. v. Chrusz (1999), 1999 CanLII 7320 (ON CA), 45 O.R. (3d) 321 (C.A.); Susan Hosiery Ltd. v. Minister of National Revenue, 1969 CanLII 1540 (CA EXC), [1969] 2 Ex. C.R. 27; Wheeler v. Le Marchant (1881), 17 Ch. D. 675 (C.A.). [^14]: Blank v. Canada (Minister of Justice), 2006 SCC 39 at para. 32; Ontario (Liquor Control Board) v. Magnotta Winery Corp. (2009), 2009 CanLII 92118 (ON SCDC), 97 O.R. (3d) 665 (Div. Ct.) at paras. 49-50. [^15]: 2012 ONSC 1123 [^16]: 2015 ONCA 55, leave to appeal refused, [2015] SCCA No 119. [^17]: 2015 SCC 23. [^18]: [2012] O.J. No. 716, 2012 ONSC 1123. [^19]: 2015 ONCA 55, leave to appeal refused [2015] S.C.C.A. No. 119. [^20]: Liddy v. Mauro, 2017 ONSC 6575 (Master); Scaffidi-Argentina v. Tega Homes Developments Inc., 2017 ONSC 6530; Maxrelco Immeubles Inc. v. Jim Pattison Industries Ltd., 2017 ONSC 5836; AE Hospitality Ltd. v. George, 2017 ONSC 2861 (Master); Nikolakakos v. Hoque, 2015 ONSC 4738 (Master). [^21]: 2015 ONCA 273. [^22]: [2011] EWHC 1669. [^23]: 2016 ONSC 6807.