Court File and Parties

COURT FILE NO.: 07-CV-341402PD1 MOTION HEARD: 20180613 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Shaun Edwards, Plaintiff AND: John R. McCarthy et al., Defendants

BEFORE: Master P.T. Sugunasiri

COUNSEL: M. Katzman, Counsel for the Plaintiff J. Pedro, Counsel for the Defendants

HEARD: June 13, 2018

Brief Reasons for Decision

[1] The single issue on this motion is whether or not the Defendants are obliged to provide “foundational information” to the Plaintiff further to an undertaking ordered to be answered by Master McAfee. The relevant undertaking is number 37. Master McAfee endorsed the following with respect to it:

“At the examination for discovery, the defendant advised that an expert has not been retained. The defendant has undertaken to provide disclosure in accordance with the Rules. This is an ongoing obligation. However, at this time, without any indication if an expert has been retained, I am unable to determine if this undertaking has been complied with. The defendant shall confirm if an expert has been retained at this time, and, if so, shall comply with his obligations under the Rules and in particular Rule 31.06(3).”

[2] In response to this undertaking, the Defendants served the Plaintiff with an expert report along with his CV and Acknowledgement of Expert’s Duty Form. Having been served with the report, the Plaintiff seeks:

a. Production of documents or disclosure of information that demonstrate the instructions on which the expert proceeded; b. Production of documents or disclosure of information that demonstrate the assumptions the expert was asked to make; c. Production of documents or disclosure of information that evidence the facts that the expert relied upon; d. Documents and materials given to the expert by the litigant or the litigant’s counsel; e. All prior drafts of the Expert’s report; and f. All correspondence as between the expert and its instructing counsel which contain foundational information.

[3] It is well established that foundational information of the nature requested by the Plaintiffs is required to be disclosed for any experts a party intends to rely on at trial. Neither party disagrees with this general proposition. They differ on when such information ought to be disclosed. The Defendants submit that while they may be obliged to disclose some or all of this information once they decide whether or not to call the expert, the Plaintiff is not entitled to the information now. The Plaintiff argues, however, that the information ought to be disclosed now since the Defendants have chosen to formally serve an expert report.

[4] I agree with the Plaintiff but only with respect to items a-d listed above. Rule 31.06(3) entrenches principles of litigation privilege. At discovery, a party may only obtain information regarding the findings, opinions and conclusions of an expert if the expert’s conclusions were not made solely in contemplation of litigation and in the absence of an undertaking not to call the witness. In other words, parties are entitled to consult with experts to assist in the litigation without having to disclose the findings. As accepted by Shaw, J. in Andreason v. Thunder Bay (City), 2014 ONSC 314 at para. 13, Rule 31.06(3) is concerned with fact disclosure, not documentary production. Notwithstanding the rule, the report itself remains protected by litigation privilege. However, parties often waive the litigation privilege otherwise attaching to the report itself by serving the report in lieu of, or in fulfillment of their obligations under rule 31.06(3). It follows from this commentary that serving the report at the discovery stage triggers the opposing party’s right to obtain the foundational information to the report. This includes the facts on which the opinion is based, the instructions upon which the expert proceeded and the expert’s contact information.

[5] In the present case, the Defendants have chosen to serve an expert report and his acknowledgement and certification, as an answer to an undertaking. In doing so, the Defendants have flagged their intention to call Mr. Bohm, have waived their litigation privilege over the report, and must provide the Plaintiff with the foundational information set out in a-d above.

[6] Once the report is served, the obligation to provide foundational information is the same as a party has pursuant to Rule 53.03(2.1). There is nothing in Rule 53.03(2.1) that suggests a party may serve a report at the discovery stage and then wait until closer to trial disclose foundational information. On my reading of the jurisprudence provided by the parties, foundational information becomes available once a party has flagged its intention to rely on an expert at trial by serving his or her report. This is because there is an implied waiver of litigation privilege that would otherwise protect the report.

[7] Rule 53 simply sets a final deadline for serving such reports and providing such foundational information. It does not mean that the information does not have to be provided until those deadlines. This would run contrary to the cultural shift towards encouraging expeditious, efficient and cost-effective adjudication of cases. If a party knows at an early stage that it will rely on an expert and serves the report, it is better for the opposing party to obtain foundational information to assess the strength of the report. This may facilitate early settlement or a streamlining of the issues.

[8] The categories of information requested by the Plaintiff fall within the scope of recognized foundational information (see for example Master Wiebe’s summary of the law in BIE Health Products v. Attorney General (Canada), 2018 ONSC 2142 at para. 19); see also Getehun at para. 75 – Foundational information is generally material relating to the formulation of the expressed opinion).

[9] Discussions and exchanges between counsel and the expert, and draft reports, however, fall into a different category of documents. In Moore v. Getehun, 2015 ONCA 55, the Ontario Court of Appeal stated that even where a party intends to call a witness, the draft reports of that witness and exchanges with counsel remain privileged. Draft reports and exchanges with counsel are only available where the requesting party can show reasonable grounds to suspect that counsel communicated with an expert witness in a manner likely to interfere with the expert’s duty of independence and objectivity (Getehun at para. 77, 78). There is no such evidence in this case and I decline to grant this part of the Plaintiff’s requested relief.

[10] In sum, compliance with Master McAfee’s order requires the Defendants to disclose to the Plaintiff, the foundational information underlying the Bohm report, save and except for draft reports and exchanges between counsel and Mr. Bohm. The Defendants shall therefore provide items a-d in relation to Mr. Bohm’s report no later than 30 days from today’s date.

Costs

[11] Both sides provide me with modest and similar costs outlines. Given my conclusions, the Plaintiff was largely successful. It is appropriate to award the Plaintiff costs in the amount of $2000 inclusive of disbursements and HST payable by the Defendants within 30 days from today’s date.

Original signed “Master P.Tamara Sugunasiri”

Date: September 13, 2018