The scope of production
Another important issue concerning the duty of the expert is the extent to which draft reports, notes, and other materials relied on in forming the opinion must be produced during the judicial process.
The general rule is documents—including expert reports, which are prepared with a dominant purpose of litigation (or, as it is more commonly referred, ‘in anticipation of litigation’)—are protected by litigation privilege. (General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321 [C.A.]).
The Rules also specifically provide a party is not required to produce the report, findings, opinions, or conclusions of an expert in litigation whose evidence is not being called at trial.
Despite protections afforded by litigation privilege, draft expert report production remains uncertain in Canadian jurisprudence. In Ontario, decisions with respect to draft report production tend to be divided. Despite the most frequently cited case on this issue having rejected the production of the draft expert reports in question, (Bell Canada v. Olympia & York Developments Ltd. (1989), 68 OR (2d) 103 [H.C.J.]).
other decisions have left the door open. For example, in the 2002 decision in Aviaco International Leasing Inc. v. Boeing Canada Inc., the court concluded draft reports form part of the expert’s preliminary findings, opinions, and conclusions. (2002), CarswellOnt 3266 [S.C.J.]).
The court found it may be appropriate, in certain circumstances, to consider whether the expert changed opinion from draft to draft and, if so, why.
More recently, however, in Conceicao Farms Inc. v. Zeneca Corp., a full panel of the Ontario Court of Appeal reversed the lower court’s ruling and concluded expert drafts were not to be produced. (2006), 83 O.R. (3d) 792 [C.A.]).
The Court of Appeal narrowed the scope of discovery by defining the extent of production as including:
- the expert’s opinion;
- the facts on which the opinion is based;
- the instructions on which the expert proceeded; and
- the expert’s name and address.
Ontario courts are now struggling to determine how far beyond the four Conceicao factors the right to obtain foundational information extends. To date, a final consensus has yet to be reached. In recent decisions, the courts have ordered production of letters of instruction as well as copies of all documents used by experts to formulate their opinions. The entire expert file and materials other than “documents” have, however, remained privileged.
Related to draft reports is the meaning of “findings, opinions, and conclusions,” which are within the scope of oral discovery of an expert being called at trial. (Rules, r. 31.06).
If such materials were used to formulate the expert’s opinion, courts have held findings include:
- raw data;
- test scores; (Cacic v. O’Connor (1990), 71 O.R. (2d) 751)
- field notes used in preparing reports; (Award Developments (Ontario) Ltd. v. Novoco Enterprises Ltd. (1992), 10 O.R. (3d) 186). and
- notes and correspondence between third parties. (Ontario (Attorney General) v. Ballard Estate (1994), 20 O.R. (3d) 189).
‘Findings’ do not appear to include the expert’s personal notes.
Given the unsettled nature of the Ontario case law, it is very possible draft reports—as well as all documents relied on by experts in formulating opinions—may be ordered to be produced. This possibility must remain top of mind before and during the drafting process. Experts and counsel alike must also remember the involvement of counsel in the drafting process calls into question the independence of the expert and will likely result in production. As such, it is good practice to discuss the issue of draft reports with counsel before beginning the process.
What lies ahead
In light of the recent changes to the Ontario Rules of Civil Procedure, as well as the courts becoming stricter about the qualification and independence of experts, it is reasonable to assume further reform in the area of expert opinions and testimony is imminent. Indeed, recent changes to the Federal Court Rules aimed at “speeding up lengthy and complicated intellectual property trials now allow judges to force lawyers to serve up their experts in a hot tub.” (J. Gray’s article, “Why Judges Like Hot-tubbing,” appeared in the April 20, 2011 edition of The Globe and Mail).
Hot tubbing, or ‘concurrent evidence,’ allows experts to testify in court together on a panel rather than as individual witnesses. The practice is already common in Australia, with other jurisdictions not far behind. In fact, reforms in Australia and the United Kingdom now “require parties to agree upon a single jointly appointed expert, impose obligations on opposing experts to consult and to produce a single joint report, or require an order of the court before any expert evidence may be adduced.”
Ontario seems to be moving in a similar direction. Indeed, amendments to the Rules now allow for pretrial meetings between opposing sides’ experts such that issues of debate can be identified and discussed. The hope is these types of expert meetings will result in the narrowing of issues before trial as well as a reduction in costs.
While the courts have not taken a definitive stance with respect to the implementation of hot tubbing at trial, there is certainly an overall appreciation for a system that maximizes efficiency and minimizes costs. This is particularly true in the context of expert evidence resulting in the role of the expert continuously evolving. It is therefore essential those called on to provide expert opinions remain informed and cognizant of the current duties upon them—as well as the changes that may lie ahead.
Jeffrey A. Armel is a senior member and partner of the construction law group at Goldman Sloan Nash & Haber LLP (GSNH), acting as the firm’s litigation mentor for its articling student and junior associates. He advises clients in construction law, dealing with litigation, alternative dispute resolution (ADR), and contract preparation. Armel is a member of the executive of the Construction Law Section of the Ontario Bar Association. He can be contacted via e-mail at email@example.com.
Jessica Caplan practises construction litigation at GSNH. She has appeared at all levels of the Ontario courts, including as counsel before the Ontario Court of Appeal. She can be reached at firstname.lastname@example.org.