Court File and Parties
Court File No.: 04-CV-280157CM2 Date: 2018-10-25 Superior Court of Justice - Ontario
Re: Gurbaksh Kaur Dhaliwal, Devinder Kaur Dhaliwal, Harcharan Singh Dhaliwal, Gurmeet Singh Dhaliwal and Jagtar Singh Dhaliwal, Plaintiffs And: Dr. R. Sims, Dr. R. Lang, Dr. A. McLean and St. Joseph’s Health Centre, Defendants
Before: Justice Darla A. Wilson
Counsel: Joseph J. Colangelo and Chris Dockrill, Counsel for the Plaintiffs Risa M. Kirshblum, Paul-Erik Veel and Chloe Boubalos, Counsel for the Defendant, Dr. R. Sims; Anna Marrison and Logan Crowell, Counsel for the Defendant, St. Joseph’s Health Centre
Heard: October 19, 2018
Endorsement
1During the trial of this action, counsel for the Defendant physician asked the Plaintiff Gurbaksh Dhaliwal (“Gurbaksh”) in cross-examination about a negligence action she commenced against her former solicitors. Shortly before this trial commenced, counsel for Dr. Sims had obtained copies of the pleadings in the solicitor’s negligence action in which reference is made to three expert reports that had been obtained and reviewed with the Plaintiff. Ms. Dhaliwal confirmed she has copies of these reports. Her counsel, Mr. Colangelo, agreed that these reports had not been listed in the Affidavit of Documents of the Plaintiff.
2Counsel for Dr. Sims moves for production of the three expert reports that are referred to in the Statement of Defence of the defendant Vigmond in the solicitor’s negligence action. The Plaintiffs oppose production.
Background
3It is necessary to understand the history of this action to put the issue that I must decide in some context.
4Gurbaksh underwent a hysterectomy and oophorectomy performed by the Defendant obstetrician and gynecologist Dr. Sims on December 5, 2003 at St. Joseph’s Health Centre (“St. Joseph’s”). Following that surgery she became increasingly unwell and it was later determined that her rectum had been perforated during the surgery and she had gone on to develop septic shock. She had emergency surgery on December 10, 2003 to repair the perforations. She spent an extended period of time in the hospital and later in rehabilitation.
5Gurbaksh retained counsel and on December 3, 2004, a claim was issued naming Dr. Sims, Dr. Lang, Dr. McLean and the hospital as defendants, alleging negligence in failing to obtain proper consent, failing to perform the surgery properly and failing to properly monitor Gurbaksh after the surgery, among other things.
6Gurbaksh changed counsel and on April 24, 2008, her third counsel, Mr. Jeejeebhoy, issued a second malpractice action against the general surgery team at St. Joseph’s, alleging negligence in the post-operative care provided to the Plaintiff following the December 2003 surgery. The defendants in that action brought a summary judgment motion based on a limitation period defence and the motion was successful and the action was dismissed on November 2, 2009. The motions judge held that the action had not been commenced within the limitation period.
7The Plaintiff then retained her present counsel, Mr. Colangelo. On August 18, 2010, the solicitor’s negligence claim against three of her former counsel was issued: Mr. Linden; Mr. Vigmond; and Mr. Jeejeebhoy. In that action, the Plaintiff pleads that her former counsel were negligent in failing to properly investigate the potential medical malpractice claim and in failing to commence an action on a timely basis. In his statement of defence filed in May 2011, Mr. Vigmond denies negligence and asserts that the claim was properly investigated. He pleads that he sought three separate expert medical opinions on the alleged medical negligence but none were supportive of a claim and the Plaintiff was advised of this in March 2007. Mr. Vigmond denies that the Plaintiff had a meritorious claim against any of the doctors in favour of whom summary judgment was granted.
8The defendant in the solicitor’s negligence action, Mr. Jeejeebhoy, pleads in his statement of defence that Mr. Vigmond retained experts who provided opinions that the care provided met the standard of care.
Positions of the Parties
9Mr. Colangelo submits that Sosna J. effectively decided this issue in his endorsement of September 18, 2015, where he refused to order production of the files of the two other counsel who acted for the Plaintiff prior to Mr. Colangelo’s retainer. Further, he submits that the expert reports referred to in the statement of defence of Vigmond form the basis for advice given to Ms. Dhaliwal and are covered by solicitor-client privilege. In the alternative, if the court finds the expert reports are subject to litigation privilege, Mr. Colangelo submits that the Plaintiff did not voluntarily or intentionally waive privilege and the Defence is not entitled to production of the reports.
10Mr. Veel argues that the reports obtained were the subject of litigation privilege; however, by commencing the solicitor’s negligence action, there was a waiver of privilege over these reports. In his statement of defence, the defendant Vigmond denies negligence and pleads that in investigating potential claims, three expert reports were obtained which did not support a case of negligence against the doctors. Mr. Veel submits that the issues in the trial before me include the post-operative care provided by Dr. Sims and the nurses at the hospital following the December 5, 2003 surgery. The solicitor’s negligence action involves the same factual matrix and includes the surgeons who provided care to Gurbaksh following her surgery. If the Plaintiff wished to maintain litigation privilege in the expert reports, when the Defence pleaded the existence of those reports, it was incumbent on the Plaintiff to take some positive action and she failed to do so. There is no privilege and the reports must be produced.
Analysis
11The issues to be determined are whether the Plaintiff has waived privilege in the three expert reports and as a result, whether they must be produced to the Defence in this lawsuit.
12The first step in my analysis is to determine what kind of privilege attaches to these expert reports that were obtained by the Plaintiff’s lawyers: solicitor/client or litigation privilege? Counsel were unable to find any cases directly on point.
13I do not agree that the endorsement of Sosna J. of September 18, 2015 disposes of the issue concerning production of the reports. The motion that was before Sosna J. concerned a discovery plan in the solicitor’s negligence action. One defendant sought production of the files of the other two lawyers who acted for Gurbaksh. Sosna J. refused to order the files produced on the basis of solicitor-client privilege, which had not been waived. Importantly, the motions judge noted that the defendant could move for production of specific documents in the possession of the Plaintiff if he established relevance.
14What is being sought before me is different; it is not the lawyer’s files but rather the three expert reports that are referenced in the Vigmond statement of defence and which are relied on in his denial of negligence in the work he did for the Plaintiff on the medical malpractice claim.
15I turn now to the issue of whether the reports were covered by privilege, and if so, what kind of privilege and whether it has been waived.
16In The Law of Evidence, solicitor-client privilege is defined as “[a] communication between a solicitor and a client, of a confidential nature and related to the seeking, forming, or giving of legal advice”. [1]
17The privilege belongs to the client and can only be waived by the client. As the Supreme Court noted in Goodis v. Ontario, [2] relied on by the Plaintiffs, there is a very high threshold for production of documents that are the subject of solicitor-client privilege.
18Litigation privilege is defined as “communications between a lawyer and third persons [and] are privileged if, at the time of the making of the communication, litigation was commenced or anticipated and the dominant purpose for the communication was for use in, or advice on, the litigation.” [3] Generally, documents that come into being in the course of acting for a client would attract litigation privilege because no client confidences are involved.
19In The Law of Evidence, the distinctions between solicitor-client privilege and litigation privilege are identified. Solicitor-client privilege exists to protect the relationship while litigation privilege exists to facilitate the adversarial process. Solicitor-client privilege is meant to protect client confidences and is recognized as a higher privilege, not easily pierced. Litigation privilege is “far more likely to be truncated.” [4]
20What are being sought to be produced are not the notes or memorandum of discussions between the Plaintiff and her former counsel. Those would be the subject of solicitor-client privilege. The expert reports formed the basis for solicitor Vigmond’s recommendations to the Plaintiff concerning the merits of claims in negligence against the various doctors who treated her during and after her surgery. However, the fact that the Plaintiff’s lawyer requested the reports does not make them subject to solicitor-client privilege. The reports have nothing to do with discussions between Gurbaksh and her former counsel. As Ferguson J. noted in Browne v. Lavery: “A report prepared by an expert at the request of counsel for litigation purpose is privileged. This would be under the category of litigation privilege.” [5]
21In my view, the three expert reports obtained by solicitor Vigmond are the subject of litigation privilege, not solicitor-client privilege. The experts were retained to provide opinions on the care provided by the surgeons who provided post-operative care to the Plaintiff. There would be no confidences from Gurbaksh provided to these experts; rather, they would be asked to review the hospital records and perhaps discovery transcripts and to provide an expert opinion on whether there was a breach of the standard of care by the doctors and possibly on the issue of whether any of their actions causally contributed to the Plaintiff’s damages.
22In General Accident Assurance Co. v. Chrusz, Doherty J.A. stated that the court must look at the true function of what the third party was retained to do: “Client-solicitor privilege is intended to allow the client and lawyer to communicate in confidence. It is not intended … to protect … all communications or other material deemed useful by the lawyer to properly advise his client.” [6]
[23] In Blank v. Canada (Department of Justice) the Supreme Court commented that the dominant purpose standard appears to me consistent with the notion that the litigation privilege should be viewed as a limited exception to the principle of full disclosure and not as an equal partner of the broadly interpreted solicitor-client privilege. The dominant purpose test is more compatible with the contemporary trend favouring increased disclosure. [7]
24Litigation privilege can be lost in a number of ways. It is clear that if an expert report is provided to another expert for review, even if it has not been served and relied on by counsel in the action, it is subject to production. [8] If reference is made to a report by counsel in an opening statement, it may be produced.
25Waiver of privilege can be done intentionally or in circumstances where there is no demonstrable intention to waive privilege, if “fairness and consistency” require it. [9]
26The Plaintiff has these reports and presumably has had them since terminating the services of solicitor Vigmond. They ought to have formed part of Schedule B of the Plaintiff’s Affidavit of Documents in this action and had they been listed there, the Defence could have moved for production of these expert reports at a much earlier stage in the litigation, instead of during the trial, while the Plaintiff is under cross-examination.
27In defending the claim of negligence, Vigmond denies that he failed to investigate negligence in post-operative care provided to Gurbaksh. Rather, he asserts that he did do so and obtained expert reports on this issue. Those reports are central to his defence of the negligence action and are referenced in his pleading.
28While the solicitor for the Plaintiffs submits that any loss of privilege was done unintentionally, it is difficult to accept this argument. The issue of post-operative care received by the Plaintiff following her December 5, 2003 surgery is a critical issue in the trial. Experts retained by all of the parties have provided opinions in reports that have been exchanged. After the dismissal of the second medical malpractice claim on the basis of the failure to commence it in time, the Plaintiff decided to sue her former counsel. In doing so, and alleging a failure to investigate a possible claim against her treating surgeons, she had to have known that her lawyer, particularly Mr. Vigmond, was going to plead that he did consider this issue, retained the appropriate experts and was unable to secure an opinion that the doctors were negligent.
29I acknowledge that generally, when counsel request an expert report for use in a lawsuit, and the expert report is not favourable, there is no obligation on counsel to serve the report on opposing counsel—see Rule 31.06(3), which contemplates such a situation. To require a party to produce an unsupportive report that is not being relied on would be unfair. That, however, is not the situation in the instant case. Here, the expert reports at issue are referenced in pleadings and are an essential part of the defence of the Defendant solicitor.
30When the Statement of Defence was received in 2010 with the reference to the three expert reports, given that the negligence action against Dr. Sims was ongoing, it was open to the Plaintiffs to have moved to strike the portions of the pleading with the reference to the expert reports or alternatively, and perhaps more appropriately, the Plaintiffs could have moved for an order preventing the production of the reports or for a limited sealing order. A pleading is a public document. When a pleading is delivered that makes reference to a document that is relied on by a party in the litigation, that document is clearly relevant and prima facie producible. The Plaintiff has acted in a manner inconsistent with the view that maintenance of litigation privilege was being maintained in the expert reports obtained by her former counsel.
31The three expert reports referenced in the Vigmond statement of defence are to be produced forthwith to all parties and to the court.
32What is to be done with the reports is unclear at this juncture and may be the subject of a further ruling from the court.
D.A. Wilson J. Date: October 25, 2018
Footnotes
[1] David M. Paciocco & Lee Stuesser, The Law of Evidence, 7th ed. (Toronto: Irwin Law, 2015), at p. 243. [2] 2006 SCC 31, [2006] 2 S.C.R. 32. [3] Lee & Stuesser, at p. 256. [4] Lee & Stuesser, at p. 257. [5] Browne (Litigation Guardian of) v. Lavery (2002), 58 O.R. (3d) 49 (S.C.), at para. 27, citing R. v. Stone, [1999] 2 S.C.R. 290, at para. 96. [6] (1999), 45 O.R. (3d) 321 (C.A.), at p. 358. [7] 2006 SCC 39, [2006] 2 S.C.R. 319, at para. 60. [8] See Browne v. Lavery. [9] See Brown v. Clark Wilson LLP, 2013 BCSC 1695.