Among civil litigators, 2015 was the “year of theexpert,” with multiple decisions from the appellatecourts on various issues related to expert evidence.Over the last two years, lower courts have beenapplying the principles articulated in 2015 so that wecan now look back on how the seminal decisions haveaffected litigation practices.
I would first like to look at how trial courts andtribunals are applying the rules surroundingproduction of an expert’s working file, as opined inMoore v. Getahun 2015 ONCA 55.
High bar for disclosure of communications with experts
The Moore v. Getahun decision in 2015 clarifiedwhen an expert’s working file will be produced. Thestarting point is that “the file,” i.e.: non-foundationaldocuments that contain communications between theexpert and counsel, is subject to litigation privilege.However, litigation privilege is not absolute. Wherean opposing party can show “reasonable grounds tosuspect that counsel communicated with the expertin a manner likely to interfere with the expert’s duties of independence and objectivity,” a court canorder production of draft reports and notes of consultations between counsel and the expert.
To date, there have not been any reported decisionswhere a court overturned the presumption and ordered production of the expert’s file. Instead, the decisions reiterate the high threshold required fordisclosure and have repeatedly held that a mere allegation of bias is an insufficient.
In C.S. v. R.S. 2017 ONCJ 156, the defendant soughtproduction of the file on the basis that a letter showedthat counsel had directed the narrow parameters ofthe expert’s report. The judge disagreed that the letter satisfied the high threshold for disclosure. Thejudge found that counsel’s direction was given to assist the expert in providing relevant information, notexert “improper influence.” The judge said that theexpert “gives no indication that she has been told tolimit the information to specific facts, dates, concerns,etc.” The judge went on to deny the defendant’s motion for production, “[the defendant] cannot befound to have met the threshold of establishing a reasonable suspicion that improper influence has occurred by counsel.”
In Law Society of Upper Canada v. Kivisto, the defendant moved for production of communicationsbetween counsel and two expert witnesses who werecalled to testify on disbarrment procedures in otherjurisdictions. The defendant claimed that disclosurewas warranted because there was evidence of a discussion regarding his complaints about the experts.He argued this suggested that the experts may havefabricated evidence to rebut these complaints.
The tribunal viewed this as a mere “hypothesis”falling below the threshold for production, “in ouropinion, this falls short of what the Court of Appeal inMoore … said was required to compel production ofprivileged documents. As such, there is no factualfoundation to support a reasonable suspicion that theLaw Society is acting improperly such that privilegeshould not be maintained.”
Disclosure of the instructing letter
Of special note are two very recent decisions regarding production of counsel’s instructing letter to theexpert. In Maxrelco Immeubles Inc. v. Jim PattisonIndustries Ltd. 2017 ONSC 5836, the court concluded that, absent a foundation to support a suspicion of improper influence, there was no obligation toproduce the instructing letter. The court further concluded that rule 53.03(2.1)3 was satisfied when theinformation required by that rule was set out in theexpert report itself. This decision was followed inScaffidi-Argentina v. Tega Homes Developments Inc.2017 ONSC 6530.
These decisions are contrary to the earlier decisionof a master in Nikolakakos v. Hoque 2015 ONSC4738. In the earlier case, it was held that letters of instruction are foundational information that must bedisclosed but that this obligation of disclosure onlyarises once the party who retained the expert has exercised their option of whether to call the expert as awitness at trial.
Implications for counsel’s practice
Recent decisions show that the threshold for the disclosure of communications between counsel and expert remains high. A party who seeks such disclosuremust demonstrate a factual foundation for improperinterference with an expert’s independence and objectivity; disclosure will not be granted so that a merehypothesis can be explored or confirmed.
Furthermore, moving parties must keep in mind thatcertain communications between counsel and an expert are not only proper but encouraged, particularlywhere the purpose is to assist the expert in providinga relevant opinion that will be useful to the court. Lastly, the most recent decisions on the issue indicatethat, so long as the requirements of rule 53.03 aremet within the expert’s report itself, disclosure ofcounsel’s instructing letter is not required.
The next article in this series will address the issue ofexpert “ghost writing.”
Jennifer Hunter is a partner in the Toronto office ofLerners LLP, specializing in health law and insurancedefence. This article was written with the valuableassistance of Julia Boddy, articling student in theToronto office. This article originally appeared onThe Lawyer's Daily website published by LexisNexisCanada Inc.