Canada: When Timing Isn't Everything: Service Of An Expert Report At The Discovery Stage Does Not Automatically Trigger Disclosure Obligations Under Rules 31.06(3) And 53.03(2.1)

Edwards v McCarthy, 2019 ONSC 3925

Key Takeaway: Service of an expert report by a defendant does not automatically mean the expert will be called to testify at trial. While it is necessary to serve a Rule 53.03 compliant expert report in order to later call that expert at trial, it does not automatically follow that service of the report will result in the expert being called. As a result, service of an expert report at the discovery stage does not automatically trigger disclosure obligations.

Mr. Edwards was in a car accident and brought a claim for statutory accident benefits. His former lawyer, Mr. McCarthy, recommended a settlement. Mr. Edwards alleged the settlement recommendation was improvident and, as a result, he brought a lawyer's negligence claim.

In the context of the lawyer's negligence case, the plaintiff brought a motion seeking to compel the defendant to produce the foundational information/documents relied upon by the defendant's expert. At issue on the motion was when a party must disclose foundational information/documents – during the discovery process or only following a decision to call the expert as a witness at trial. In particular, the question was whether the defendant's production of the expert report during the discovery process constituted an implied waiver of privilege such that the defendant must immediately produce the foundational information/documents.

At his examination for discovery, the defendant undertook to comply with the disclosure obligations related to expert witnesses. After his examination for discovery, the defendant produced an expert report and the plaintiff sought production of foundational information/documents, including:

• documents/information demonstrating the instructions on which the expert proceeded,  
• documents/information demonstrating the assumptions the expert was asked to make,
• the facts the expert relied on,
• documents/materials given to the expert by the litigant (or litigant's counsel),
• prior drafts of the expert report, and
• all correspondence between the expert and instructing counsel.

The Rules

Rule 31.06(3) governs the examination for discovery of experts:

31.06(3) A party may on an examination for discovery obtain disclosure of the findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined that are relevant to a matter in issue in the action and of the expert's name and address, but the party being examined need not disclose the information or the name and address of the expert where,

(a) the findings, opinions and conclusions of the expert relevant to any matter in issue in the action were made or formed in preparation for contemplated or pending litigation and for no other purpose; and

(b) the party being examined undertakes not to call the expert as a witness at the trial.

Pursuant to Rule 31.06(3), a litigant must disclose their expert's name and address as well as the findings, opinions, and conclusions of their expert on any issue relevant to a matter in issue in the action. A litigant is exempt from these disclosure requirements if the expert report is protected by litigation privilege and the litigant undertakes to not call the expert as a witness at trial.

Rule 53.03 sets out the deadlines by which litigants must serve their expert reports, and lists mandatory documents/information that must be disclosed along with the expert report (Moore v Getahun, 2015 ONCA 55):

Preliminary Decision of Master McAfee

Master McAfee held that the defendant waived privilege over his expert's report by serving it at the discovery stage of the action, and thus triggered the plaintiff's right to obtain the foundational information/documents. Master McAfee 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." (para 7).

Master McAfee ordered the defendant to disclose the foundational documents that were sought by the plaintiff. The defendant appealed.  

Appeal Decision of Justice Swinton

In her brief reasons, Justice Swinton set aside the order of Master McAfee and considered the proper reach of litigation privilege for expert reports.

The Supreme Court in Blank v Canada held that "litigation privilege, unlike solicitor client privilege, is neither absolute in scope nor permanent in duration." (2006 SCC 39 at para 37). Building on that principle, Justice Swinton made four key findings in relation to the scope of litigation privilege for expert reports (para 12):

1. Rules 31.06(3) and 53.03(2.1) specify the extent to which litigation privilege must yield at the discovery stage.
2. Absent special circumstances and unless otherwise mandated by the Rules (such as Rules 31.06(3) and 53.03(2.1)), a party is entitled to maintain litigation privilege through to trial.
3. Calling a witness to trial may be deemed to waive litigation privilege.
4. Service of an expert report by a defendant does not automatically result in the conclusion the expert will be called to testify at trial. It is necessary to serve a Rule 53.03 compliant expert report in order to later call that expert at trial, but it does not automatically follow that service of the report will result in the expert being called.

Justice Swinton found that the defendant's expert report contained all the information prescribed by Rules 36.06(3) and 53.03(2.1), and because of this, litigation privilege continued to attach to the foundational information and documents sought by the plaintiff. Justice Swinton held that Master McAfee erred in ordering the requested documents be produced and allowed the appeal.

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