The issue of whether a party must produce a lawyer’s ‘instructional letter’ when retaining an expert was considered by the Ontario Superior Court in Nikolakakos v. Hoque, 2015 ONSC 4738. This case involved an action for damages arising from personal injuries sustained in a motor vehicle accident in August 2012. Following examinations for discovery held in August 2014, the Defendants requested that the Plaintiff attend a defence medical examination with an orthopaedic surgeon. The Plaintiff agreed to attend the medical examination on the condition that the Defendant’s lawyer provide a copy of the letter of instruction to the orthopaedic surgeon in advance of the assessment. The Defendant’s lawyer refused and a motion was brought to determine whether the Defendants had to provide the Plaintiff with a copy of the letter of instruction prior to and as a condition of the Plaintiff agreeing to attend the proposed medical examination.

The motion was brought under section 105 (2) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 which reads “Where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners”.

In arguing that the letter of instruction should be submitted as a condition of the Plaintiff attending the assessment, reliance was placed on the decision of Master Muir in Imperial Oil Ltd. v. Oakville, 2012 ONSC 6933 (CAN LII) which was a case involving a contaminated property claim. There, the Plaintiff sought production of an instructing letter from the Defendant, Oakville, to an expert that Oakville had undertaken not to call as a witness at trial, on the basis that the retainer letter had also been sent to another expert which Oakville would be calling at trial. Master Muir considered the provision of Rule 53.03 (2.1) which requires that an expert report include “the instructions provided to the expert” concluding that as the retainer letter was used by Oakville as a letter of instruction to the another expert, the Rule required production of the original instruction letter.

The Plaintiff further submitted that “foundational material” relied upon by an expert, including the letter of instruction, must be disclosed by the party seeking to call the expert at trial.

The Defendants argued that Rule 53.03 (2.1) states that only counsel’s instructions to the expert must be contained in the expert’s report and that this cannot be interpreted to require production of the letter containing those instructions.

The court identified the issue on the motion as “whether a Defendant seeking a defence medical examination of a Plaintiff must agree at the time the examination is arranged to produce to the Plaintiff a copy of the letter of instruction to the physician conducting the examination”. The court further noted that a defence medical report must be served pursuant to Rule 33.06 (2) regardless of whether or not the Defendant who obtained it intends to call the examining health practitioner as a witness. However, the court found that the requirement for a Defendant to serve a medical report under this Rule did not constitute a waiver of privilege with respect to the Defendant’s communications with the health practitioner conducting the defence examination. It reasoned that a Defendant who has served a report pursuant to that Rule still has the option not to call the author of the report as a witness at trial, in which case that party is not obliged to comply with Rule 53.03 and is not obliged to provide any further information that might be subject to disclosure under Rule 31.06 (3).

The court noted that the purposed expert the Defendant intended to retain had not yet conducted his examination or prepared a report. However, the Plaintiff was seeking production of the Defendant’s instruction letter before the Defendants were in a position to decide whether or not they would be relying on the report at trial. The court held that the requirement that a Defendant disclose their counsel’s letter of instruction to a medical expert “does not arise until the Defendants have elected to rely upon that medical expert report at trial”. The court held that the instructing letter does not need to be produced until a party elects to call that expert at trial. Even after the report is served, the instructing letter does not have to be produced pending the Defendant’s decision whether to call the expert at trial.