Case provides guidance on litigation privilege

By Staff

Family law counsel should broaden their horizons for lessons on how to handle expert evidence, says Toronto family lawyer Gary Joseph.

“The family law bar seems to pay attention only to family law cases, which I think is a mistake,” says Joseph, managing partner of MacDonald & Partners LLP. “We need to keep our eyes open and pay attention for decisions in other areas that might be useful to us. The whole subject of pre-trial disclosure and expert reports is one area that I think is greatly misunderstood by the family law bar.”

One recent decision offers guidance on the concept of litigation privilege, he tells

“The minute you put your expert on the witness stand, you’re waiving litigation privilege, but this case confirms what the situation is before the expert is called as a witness,” Joseph explains. “And it suggests that litigation privilege is preserved for perhaps longer than family law counsel realize.”

He says family lawyers often impose a low bar on each other when it comes to disclosure of an expert’s entire file on behalf of clients.

“But this case says you don’t have to produce everything early on and you haven’t waived privilege,” says Joseph, who was not involved in the matter and comments generally.

The case concerned a plaintiff’s motion for disclosure of the defendant’s letter of instruction to their expert, as well as other foundational information in a solicitor’s negligence action, following the service of the expert report during the discovery process.

Neither side disputed whether the foundational information at issue was producible if the defendant intended to rely on the expert report at trial, but differed over whether full disclosure was required during the discovery phase.

A master originally ordered the plaintiff to proceed with full disclosure, including documents and information showing the instructions the expert was given, assumptions they were asked to make, evidence they relied on, and materials they received.

But the Superior Court justice reviewing the ruling overturned it, concluding the master erred in his interpretation of rules 31.06(3) and 53.03(2.1) of Ontario’s Rules of Civil Procedure, which govern disclosure rights at the pre-trial stage.

The judge cited a recent landmark judgment of Ontario’s Court of Appeal touching on communications between counsel and expert witnesses and associated documentary disclosure, where the appeal judge noted that in the absence of special circumstances, parties are entitled to maintain litigation privilege through to trial.

“In the present case, [the report] contains the information prescribed by rule 53.03(2.1). On its face, it includes all the so-called ‘foundational information’ required by rules 31.06(3) and 53.03(2.1),” the Superior Court judge wrote, adding there was no evidence to support a reasonable suspicion that counsel improperly influenced the expert.

“Since, as observed in [the appeal court] decision, litigation privilege otherwise continues to attach to the communications and documents in question, the Master erred in ordering them to be disclosed/produced at this stage,” the motion judge wrote.

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