The decision in Edwards v. McCarthy, 2019 ONSC 3925 provides some guidance on how much information a party is required to disclose pertaining to retained experts, before the party has decided whether or not to call the expert as a witness at trial.
In Edwards, the plaintiff brought an action against his former lawyer, alleging that his lawyer had been negligent in recommending an improvident settlement of his accident benefits claim following a motor vehicle accident.
At examinations for discovery, counsel for the defendant undertook to “provide the disclosure required under the Rules regarding any experts retained and their opinion”. The plaintiff brought a motion for responses to undertakings and the defendant was ordered to “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).”
Rule 31.06(3) provides that on examination for discovery, a party may obtain disclosure of the findings, opinions and conclusions of an expert engaged by another party, but the party is not required to disclose such information where (a) the expert findings, opinions and conclusions were created in preparation of contemplated litigation, and where the party undertakes not to call the expert as a witness at trial.
The defendant then served an expert report which addressed standard of care. They also served a copy of the expert’s curriculum vitae and his Form 53 Acknowledgement of Expert’s Duty. Plaintiff’s counsel requested additional information pertaining to the expert report including the instruction letter from counsel to the expert and all prior drafts of the report. The defendant refused to provide the requested documents. The plaintiff moved before a master for an order requiring the defendant to comply with the previous court order to comply with rule 31.06(3). The master ordered the defendant to produce:
a) Documents or information that demonstrate the instructions on which the expert proceeded;
b) Documents or information that demonstrate the assumptions that the expert was asked to make;
c) Documents or information that evidence the facts that the expert relied upon; and
d) Documents and materials given to the expert by the litigant or the litigant’s counsel.
The master did not order the defendant to produce prior drafts of the report or written correspondence between the expert and his instructing counsel.
The master noted that parties often waive the litigation privilege which would otherwise attach to expert reports by serving the report in fulfillment of the obligations under rule 31.06(3). She concluded that serving an expert report at the discovery stage triggers the opposing party’s right to obtain the foundational information underlying the report. She held that the foundational information becomes available once a party has “flagged its intention to rely on an expert at trial” by serving his or her report.
The defendant appealed the master’s decision. The decision was overturned on the basis that the master erred in concluding that the defendant waived privilege in the foundational information by serving the expert report. The judge also concluded that the case Andreason v. Thunder Bay (City), 2014 ONSC 314, which the master relied on in arriving at her decision, was distinguishable and should not have been followed.
It was significant to the judge’s decision that although the defendant had served the expert report, he had not yet determined whether or not to call the expert as a witness at trial. His Honour held that the master erred in relying on Andreason v. Thunder Bay (City) because that decision was distinguishable in that it dealt with disclosure of information at the commencement of trial rather than at the discovery stage. Moreover, he noted that Andreasen was decided prior to the Ontario Court of Appeal decision in Moore v Getahun, 2015 ONCA 55 which “refined and clarified” the law on litigation privilege and communications between counsel and expert witnesses.
His Honour rejected the plaintiff’s argument that the defendants have waived privilege in the requested material by serving the expert report. He noted that the defendant had complied with rule 53.03 to satisfy the pre-conditions which allowed him to call the expert as a trial witness; however, serving the report did not automatically mean that the expert would be called as a witness. The decision of whether or not to call the expert as a witness could only be made once the plaintiff’s case was closed and defence counsel could assess the case to be met. The decision goes further and suggests that if the instructions from counsel are contained in the expert’s report, then the instruction letter from counsel remains covered by litigation privilege.
The key takeaway from the case is that even where an expert report is served, it does not automatically follow that the “foundational information” underlying the report – for example letters of instruction and draft reports – are producible. In fact, the Edwards decision suggests that foundational information underlying defence expert reports do not become producible until defence counsel has decided to call the expert to testify at trial.