At issue before Master Short was a motion by the plaintiff for an undertaking requiring the defendant to make concurrent disclosure of any medical surveillance provided to its expert to the plaintiff. The plaintiff sued her doctors for allegedly repeatedly exposing her to latex, to which she was allergic. As a result of the repeated exposure, the plaintiff allegedly suffered from cognitive impairments, emotional distress, confusion, fatigue, and limited functioning.
During examination for discovery of one of the defendant doctors, the defendant refused an undertaking to produce to the plaintiff any medical surveillance for the purpose of a defence medical assessment that might be done in future concurrent with such disclosure to the expert. That refusal led to the plaintiff’s motion. In granting the plaintiff’s motion and ordering concurrent production of future surveillance to the expert and the plaintiff, Master Short conducted a review of the jurisprudence relating to the duties of expert witnesses before the January 1, 2010 amendments to the Rules, as well as the findings from the Report of Justice Coulter Osborne that led to the amendments. Master Short concluded that the jurisprudence and the amended Rules required a re-examination of the treatment of a claim of privilege with respect to evidence produced to expert witnesses.
Referring to the Court of Appeal decision in Adams v. Cook, 100 O.R. (3d) 1; 2010 ONCA 293, Master Short noted that the majority refrained from broadening the parameters for recording a defence medical examination, on the grounds that the record was insufficient for such an order and that the issue was best addressed by the Civil Rules Committee. Master Short concluded that the 2010 amendments addressed the issue and added “I regard it as my duty to provide guidance as to the proper approach to be taken in applying those Rules while being mindful of the concerns identified by [the majority of the Court of Appeal].”
Referring to the new rule respecting proportionality in Rule 1.04, Master Short proceeded to interpret the disclosure requirements in Rule 53.03 and 4.1.01. With respect to the expert’s undertaking set out in the new Rule 4.1.01 ‘Duty of Expert,’ Master Short held:
This Undertaking requires experts, counsel retaining them, and the Court to reconsider their respective roles and practices. This Undertaking must be read as seeking to improve the way expert evidence is procured. Now, by her or his Undertaking accompanying any report, the norm must be that ‘the Expert is the Court’s Expert.’ She or he must not be an advocate for either side. [Emphasis added.]
Noting that the new Rules signal a break from the traditional conception of the expert as a ‘hired gun,’ Master Short added:
“It needs to be clearly stated that each of the plaintiff and the defendant is entitled to select an expert in whose credentials and reputation they have confidence. They must choose and pay that expert, and provide her or him with all relevant material. The expert must state what information, whether written or not, she or he has been given, and by whom. Counsel must update the expert they have retained with fresh evidence or reports as they come in. As a consequence, experts may well be expected to provide updated and other opinions as matters develop.
“But beyond such proper contact, I believe the Expert’s Undertaking requires that she or he be seen to be independent of those who retained the expert. Counsel and those ultimately responsible for funding the payment of any potential judgment, must restrain their contact. In my view, under this new structure, the expert must be, and must be seen to be, detached and independent.” [Emphasis added.]
The Court now expects and relies upon frank and unbiased opinions from its experts. This is a major sea change which requires practical improvements to past opaque processes. How are long time plaintiffs’ and defendants’ experts to be ‘trusted’ to change their stripes? At the initial stages, skilled, licenced professionals clearly must be taken at their word that, on principle, they take their Form 53 Undertaking to the Court seriously. It is certainly my expectation that they are clearly promising to bring a new, transparent and objective mindset to the drafting of their reports and to their subsequent testimony.
Master Short then turned to the issue of the claim of litigation privilege raised by the defendant in response to the undertaking sought by the plaintiff, identifying two issues:
- On the one hand, it deals with what can be considered a document underpinning an expert’s ‘finding,’ such that it might need to be produced.
- On the other hand, it deals with when privilege may be considered waived by virtue of the document being sent to the expert - even if not relied upon by the expert.
After reviewing jurisprudence pre- and post-2010 amendments, Master Short identified the following principles:
- if information is sent to an expert, then the same information should be sent to the opposing party to allow that party to test the expert’s opinion;
- an opposing party is entitled to the facts on which the expert’s opinion is based;
- so long as an expert read a document sent to him or her, then that document was considered, such that it is a ‘finding’ that must be produced;
- the privilege claimed over a document sent to an expert is waived at the time that it was decided to rely on that expert’s opinion or in circumstances where privilege is waived over the report, even if the waiver was inadvertent;
- by sending a defence medical assessor portions of surveillance, privilege over the full surveillance video or all photographs is waived.
Master Short added:
“To these I now add the presumption that in the case of a defence medical examination the privilege is lost at the point the material is sent to an expert retained for the purpose of a Rule 37 examination.”
As a result, Master Short concluded that where surveillance evidence is sent to a defence expert for the purpose of an examination, the defendant is deemed to have relied on the medical report and to have waived privilege over the surveillance evidence.
Master Short’s judgment was upheld on appeal by Mr. Justice Perrell (see Aherne v. Chang, 2011 ONSC 3846 (Sup. Ct. Jus.)).
In his reasons, Mr. Justice Perrell upheld Master Short’s ruling, although on somewhat different grounds. Mr. Justice Perrell grounded his decision in the existing common law and Rules relating to privilege and the disclosure of defence medicals under the Rules:
“With some oversimplification, my opinion, which I will develop in detail below, is that the rules about the production of defence medicals and the law about waiver of privilege entail or have the consequence that if the defendant discloses surveillance evidence to a health practitioner - which the defendant is not obliged to do - then the defendant has waived the litigation privilege associated with the surveillance evidence.
“Put somewhat differently, the defendant's voluntary disclosure of surveillance evidence to a health practitioner for the purposes of a defence medical has the consequence that the surveillance evidence should be immediately disclosed to the plaintiff.”
However, with respect to Master Short’s analysis of the Rules following the 2010 amendments, Justice Perrell stated:
“…in addition to extrapolating from the current law about defence medicals, the Master relied heavily on the recent amendments to the Rules of Civil Procedure about proportionality in the administration of justice and about the role of expert witnesses, which amendments emphasize that experts are not to be partisans or "hired guns" for the parties but rather an expert is to assist the court in the pursuit of truth. See Rule 4.1.01 and Beasley v. Barrand, 2010 ONSC 2095.
While I agree that these amendments support or are complimentary to the Master's conclusion, I do not rely on them in reaching my own conclusion. I will return to this point below, but, in my opinion, it is not necessary to decide the case at bar to engage in law reform or development of procedural law. As it happens, Master Short's ruling may be a helpful advance; however, I think, his ruling can be grounded as a logical and necessary incident of the current law and a helpful clarification of the law.” [Emphasis added.]
Therefore, although the appeal was upheld on different, but related, grounds, Mr. Justice Perrell implicitly endorsed Master Short’s reasoning with respect to the duties and responsibilities of a defence medical expert under the new Rules.