Court File and Parties

COURT FILE NO.: 07-CV-341402 DATE: 20190626 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: shaun edwards, Plaintiff/Respondent AND: JOHN R. MCCARTHY, EDWARD BERGERON, STEVEN RASTIN and CHRIS CLIFFORD carrying on business under the firm name and style as MCCARTHY, BERGERON, RASTIN and CLIFFORD LLP Defendants/Appellants

BEFORE: Stinson J.

COUNSEL: David S. Wilson and M. Katzman, for the Plaintiff/Respondent Alan L. Rachlin, for the Defendants/Appellants

HEARD at Toronto: April 11, 2019

Reasons for Decision

[1] This is an appeal from a decision by Master Sugunasiri dated September 13, 2018. It concerns the extent of disclosure required prior to trial by a defendant who has served a rule 53.03 compliant expert’s report. In particular, the question raised is whether, on the facts of this case, the defendant is obliged to disclose the letter of instruction from counsel to the expert and other foundational information and documents, at the discovery stage, prior to trial and before a decision has been made whether to actually call the expert as a witness at trial. The Master concluded that the defendant must do so. For the reasons below, I conclude that she erred in doing so.

Factual Background

[2] This is a lawyer's negligence action. It concerns an allegation that one of the defendant lawyers breached the standard of care when, during the course of previous litigation, he recommended an improvident settlement of the plaintiff's claim for statutory accident benefits arising from a car accident. The plaintiff had been injured in the car accident and the defendant had acted as his counsel.

[3] At the defendant's examination for discovery in the current action, he undertook (in Undertaking 37) to “provide the disclosure required under the rules regarding any experts retained and their opinion." Subsequently, the plaintiff brought a motion seeking answers to undertakings and questions refused on the defendant's examination for discovery. In an endorsement dated February 6, 2017, in relation to Undertaking 37 Master McAfee ordered that “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) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.”

[4] On June 8, 2017, the defendant served an expert report dated February 1, 2017, authored by Ronald Bohm. The Bohm report addressed the standard of care issue and included Bohm’s curriculum vitae and his Form 53 Acknowledgement of Expert's Duty, as required by rule 53.03(2.1). Subsequently, counsel for the plaintiff wrote to counsel for the defendant asserting that Undertaking 37 was not satisfied and requesting additional documentation and information in relation to the Bohm report, as follows:

(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 Bohm report; and (f) all correspondence as between the expert and his instructing counsel which contain foundational information.

[5] Thereafter, the plaintiff served a motion for an order requiring the defendant to comply with Master McAfee's order dated February 6, 2017, by providing the above-described additional information and documentation. In reasons released September 13, 2018, Master Sugunasiri ordered the defendant to produce items (a) through (d) above.

The Decision of the Master

[6] In her Brief Reasons for Decision, the Master noted that neither party disagreed with the general proposition that foundational information of the nature requested by the plaintiff must be disclosed for any expert upon whom a party intends to rely at trial. Their disagreement was when such information ought to be disclosed. The Master noted that the defendant submitted that, eventually, he may be obliged to disclose some or all of the information, once the decision has been made to call the expert as a witness at trial; prior to that decision being made, however, the plaintiff is not entitled to the information. The Master noted that the plaintiff argued that the information ought to be disclosed at the pre-trial stage, because the defendant had chosen to formally serve an expert report, and hence has waived privilege in relation to the documents and information sought.

[7] In agreeing with the plaintiff’s request in relation to items (a) through (d) listed above, the Master relied on the decision of Shaw J. in Andreason v. Thunder Bay (City), 2014 ONSC 314. She observed that parties “often waive the litigation privilege otherwise attaching to the report itself by serving the report in lieu of, or in fulfilment of their obligations under rule 31.06(3)." She concluded that serving the report at the discovery stage triggers the opposing party's right to obtain the foundational information, including the facts on which the opinion is based, the instructions upon which the expert proceeded and the expert's contact information. The Master reasoned that “foundational information becomes available once a party has flagged its intention to rely on an expert at trial by serving his or her expert report … because there is an implied waiver of litigation privilege that would otherwise protect the report.”

Standard of Review

[8] As set out in Zeitoun v. Economical Insurance Group (2008), 91 O. R. (3d) 131 (Div. Ct.), the standard of review applied on appeals from Masters is the same as that applied on appeals from judges. The decision will not be interfered with unless the Master made an error of law, exercised his or her discretion on wrong principles, or mis-apprehended the evidence such that there is a palpable and overriding error.

Analysis

[9] In the present case, for the reasons that follow, in my respectful view the Master erred in law in concluding that the defendant had waived privilege in the material that she ordered the defendant to produce at the discovery stage, by reason of the fact that the defendant had served an expert's report as required by rule 53.03.

[10] In reaching the conclusion that she did, the Master relied on the Andreasen decision. In my view, that case is distinguishable, and ought not to have been followed.

[11] Andreasen was concerned with disclosure of information at the commencement of trial, relating to experts who were going to testify as part of the plaintiff's case. By contrast, the present motion is brought at the discovery stage. Different considerations arise when an expert is actually testifying and the trial judge is asked to determine the extent of required disclosure of materials that would otherwise be protected by litigation privilege.

[12] As the Court of Appeal noted in Moore v. Getahun, 2015 ONCA 55 (at para. 76, quoting Blank v Canada, 2006 SCC 39, at para. 37): “ 'litigation privilege, unlike the solicitor-client privilege, is neither absolute in scope nor permanent in duration.' Litigation privilege yields where required to meet the ends of justice ….” Rules 31.06(3) and 53.03(2.1) specify the extent to which litigation privilege must yield at the discovery stage. Absent special circumstances or other good reasons, and unless otherwise mandated by the rules (such as rules 31.06(3) and 53.03(2.1)), a party is entitled to continue to maintain litigation privilege through to trial where, by calling a witness or otherwise taking a particular position, the privilege may be deemed to be waived.

[13] As well, unlike Andreasen, the present case concerns disclosure of information and documents relating to an expert opinion obtained by a defendant. At this stage of the proceeding, the defendant has complied with rule 53.03 in order to satisfy the procedural pre-conditions to be permitted to call the expert as a trial witness. It does not follow automatically that the defence expert will testify at trial; that it is a decision that can only be made by defence counsel once the plaintiff's case is closed and the defendant can properly assess the case that must be met. At the pre-trial stage, the plaintiff's right to disclosure is set out in rules 31.06(3) and 53.03(2.1).

[14] It is also significant that the trial judge’s decision in Andreasen preceded the Court of Appeal decision in Moore v. Getahun. That case refined and clarified the law and procedure relating to the litigation privilege attaching to communications between counsel and expert witnesses and associated documentary disclosure. It recognized that the requirement to disclose “foundational information” was mandated by rule 53.03(2.1).

[15] A case that is on all fours with the present one is Maxrelco Immeubles Inc. v. Jim Pattison Industries Ltd., 2017 ONSC 5836. In that case, Justice O’Bonsawin held that where the expert report contains the instructions from counsel, as required by rule 53.03(2.1) 3. and 4., the letter of instruction remains covered by litigation privilege and need not be produced. Maxrelco was decided after Moore v. Getahun, and reflects the refinements in the law that were articulated in that case.

[16] In the present case, as in Maxrelco, the Bohm report contains the information prescribed by rule 53.03(2.1). On its face, it includes all the so-called “foundational information" required by rules 31.06(3) and 53.03(2.1). There is no evidence that might “support a reasonable suspicion that counsel improperly influenced the expert”: see Moore v. Getahun, at para. 78. Since, as observed in that decision, litigation privilege otherwise continues to attach to the communications and documents in question, the Master erred in ordering them to be disclosed/produced at this stage.

Conclusion and Disposition

[17] For these reasons, the appeal is allowed and the order of the Master is set aside.

[18] In relation to costs, the Master awarded costs of $2,000, payable by the defendant to the plaintiff. In light of the result before me, that award should be reversed, such that costs of $2,000 should be paid by the plaintiff to the defendant in relation to the motion before the Master, within 30 days. Unless either side objects in writing within 15 days from the date these reasons are released, the costs of the appeal will be fixed at $1,500 and be payable by plaintiff to defendant within 30 days of the date of release. If no such objection is filed, this disposition of the costs of the motion before the Master and the appeal before me shall be deemed to be effective.

Stinson J. Date: June 26, 2019