In Wright v. Detour Gold Corporation, 2016 ONSC 6807, the Ontario Superior Court held a litigant's expert who retained their own counsel to assist in preparation of the expert's opinion was not required to produce their file in relation to communications with and advice provided by their counsel.

By Joel Morris and Ted Murray

In Wright, the plaintiffs commenced a securities class action against various defendants.

The defendants retained an expert, Mr. Gillin, to provide an opinion regarding the scope of the defendants' duty to disclose certain information to the investing public. Mr. Gillin then retained his own counsel, separate from counsel for the defendants, to assist him with preparing his expert opinion.

Mr. Gillin opined that the defendant Detour Gold's disclosure of certain information was reasonable and consistent with appropriate disclosure practices for public companies in the mining industry. Mr. Gillin's counsel located research material for the expert opinion, provided advice regarding the substance of the opinion, wrote aspects of the text of the opinion, and was involved in revisions of the opinion based on comments from counsel for the defendants who commissioned the opinion.

Mr. Gillin gave evidence his counsel assisted in the drafting of the opinion, but that he provided the content of the opinion. He said that the substance of the opinion was his alone. He testified that he had personally done some searches regarding documents relied on for his opinion, but that he instructed his counsel to search for the documents and to assemble the documents referred to in his opinion.

Plaintiffs' counsel requested and then applied for production of: (a) Mr. Gillin's correspondence and communications with his own lawyer; (b) any of the drafts of the opinion; and (c) his invoice to the lawyer that commissioned the opinion.

Mr. Justice Perell, the motions judge, held Mr. Gillin's refusal to produce the requested documents was appropriate. He characterized the plaintiffs' submissions regarding the inherent danger in allowing counsel to interfere with an expert witness' duty to the court as "bombastically hyperbolic" and, contrary to the plaintiffs' submissions, concluded Mr. Gillin retaining his own counsel was appropriate and should, if anything, be encouraged, rather than discouraged.

In support of this conclusion, Mr. Justice Perell stated:

The fact that Mr. Gillin was assisted by his own lawyers, whose duties are only to him, cannot be connected to any partiality or want of independence by Mr. Gillin in giving an opinion for the defendants, which would be grounds for disqualification.

Mr. Gillin is the substantive author of the opinion, and he disclosed in the affidavit that he had caused a search to be done indicating the involvement of others, whom he readily identified when asked during his cross-examination. It is hardly surprising that an expert has assistance in preparing and drafting his or her opinion, and it is simply not correct to say that the assistant then becomes the author of the opinion because he or she was involved in the draftsmanship. In the immediate case, Mr. Gillin swore under oath and under cross-examination that he was the author of the substance of the opinion. There is no reason to doubt his word just because his own lawyers helped him in forming his words.

There was no danger to administration of justice. What occurred in this case, if anything, is to be encouraged not discouraged, because it enhances an expert witness' independence and impartiality and insulates the expert from pressure from a litigant's lawyer to be a partisan witness.

That Mr. Gillin was assisted in preparing the opinion by his own lawyers is not a cause of concern. His counsel's influence on the opinion, if any, was not partisan and rather insulated Mr. Gillin from the influence of the defendants and the defendants' lawyers that commissioned the opinion.

If consultation between the expert and the litigant's counsel, whose loyalty would be to the litigant, is proper, it is difficult to understand why consultation between the expert and his or her own lawyer, whose loyalty is only to the expert, could be improper.

Mr. Justice Perell dismissed the motion on the basis there was no foundation to order production of documents in relation to Mr. Gillin's interactions with his own counsel.

In Ontario, absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, the plaintiffs were not allowed to demand production of draft reports, communications, and notes of interactions between Mr. Gillin's counsel and Mr. Gillin, as this material is covered by litigation privilege (see: Moore v. Getahun, 2015 ONCA 55 at paras. 67-78).

Given the different approaches to litigation privilege in relation to expert files in Ontario and British Columbia, Wright may not support the same result in this province. Pursuant to Vancouver Community College v. Phillips, Barratt (1987), 20 B.C.L.R. (2d) 289 (S.C.) at 296297, once an expert takes the stand (and, pursuant to Rule 11-6(8), after service of an expert report and prior to trial), they waive privilege over their file: "[I]n holding out the witness's opinion as trustworthy, the party calling him impliedly waives any privilege that previously protected the expert's papers from production."

Arguably, on the basis of Vancouver Community College, an expert's file would encompass the documents sought in Wright. It would then be necessary to determine whether some other privilege applies to the documents in question for example, solicitor-client privilege and whether that privilege is waived by service of an expert opinion.