Lawyer's negligence case sheds light on rules for expert witnesses

A decision by the Ontario’s Superior Court of Justice clarified how much defendants need to disclose about expert’s reports before trial, lawyers say.

The lawyer's negligence case, Edwards v. McCarthy, 2019 ONSC 3925, will be significant and helpful to personal injury lawyers who frequently rely on expert witnesses to encourage early resolution of claims, says Spencer Wong, an associate at Zarek Taylor Grossman Hanrahan LLP in Toronto, who was not involved in the case. The decision focuses on the requirements outlined in rule 53.03 of the Rules of Civil Procedure.

“This particular decision it really clears the waters a bit. It addresses in a very clear way the timing of productions between counsel and experts and when those productions need to be provided,” says Wong. “So, I guess the main takeaway from this decision is really that serving an expert report that complies with rule 53.03 at the discovery stage …. will not waive the litigation privilege. Which is really, I think, the proper outcome.”

The case alleges a lawyer breached the standard of care during past litigation by recommending an improvident settlement after the plaintiff, Shaun Edwards, was injured in a car accident. An expert report by Ronald Bohm addressed the standard of care issues, but Edwards’ new lawyers requested more information on the Bohm report, including the instructions given to Bohm, the assumptions Bohm made, evidence of facts used in the expert report, and background on prior drafts, materials and correspondence used to create the report. A lower court said that the defendant should produce the extra documents about the Bohm report, but the appeal court disagreed. The dispute was around the timeline of producing the extra information, wrote the appeal judge, Justice David Stinson.

“[N]either 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,” wrote Stinson. “[T]he 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 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.”

Stinson analyzed whether the lower court should have relied on Andreason v. The Corporation of the City of Thunder Bay, 2014 ONSC 314. Stinson wrote that there was a difference between the 2014 Thunder Bay case and the case before the court.

“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,” Stinson wrote. “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 …. 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.”

Alan Rachlin, a lawyer who represented the appellants and defendants, was not immediately available to comment on the decision. A lawyer listed for the plaintiffs and respondents did not respond to a request for comment.

Andreason v. The Corporation of the City of Thunder Bay, 2014 ONSC 314 “took a broad approach” when it came to the documents that needed to be disclosed following expert examinations, says Robert Forderer, an associate at Rogers Partners LLP who was not involved in the case.

“As far as expert reports go, really what [Edwards v. McCarthy, 2019 ONSC 3925] does is sets out that what’s listed in rule 53 is what needs to be produced, and all of that should contained within the report,” says Forderer.