By Stacey Stevens
Published in The Lawyers Weekly on December 17, 2010
Challenges to information that falls within what is commonly known as "the zone of privacy" protected by litigation privilege will likely resurface in light of the changes to Rule 53.03 of Ontario’s Rules of Civil Procedure.
A significant amount of jurisprudence has already developed over the years on what constitutes disclosure of an expert’s "finding" under Rule 31.06(3). However, the principles of fairness, impartiality and objectivity that drive Rule 53.03 suggest that mandatory disclosure of all the foundational information on which an expert opinion rests may result in an even narrower zone of privacy during the discovery phase.
The wording of Rule 53.03 mirrors the common-law interpretation of what information constitutes an expert’s finding under Rule 31.06(3); expert reports must include, among other things, the instructions provided to the expert and the expert’s reasons for his or her opinion, including a description of the factual assumptions on which the opinion is based, a description of any research conducted to form the opinion, and a list of every document, if any, relied on by the expert in forming the opinion.
Compare this to the Ontario Court of Appeal’s decisions General Accident Assurance Co v. Chrusz, [1999] O.J. No. 3291 and Conceicao Farms Inc. et al v. Zeneca Corp. [2006] O.J. No. 3716. These decisions clarify that an expert’s finding is not limited to his or her final findings; rather, pre-trial disclosure obligations under Rule 31.06(3) include any information on which the expert’s finding rests. Further, the collective common-law decisions define the zone of privacy as "the area of privacy left to a solicitor after the current demands of discoverability have been met," but do not go as far as Justice Ferguson did in Browne (Litigation Guardian of) v. Lavery, [2002] O.J. No. 564 (Sup.Ct.) where it was stated in obiter that "our system of civil litigation would function more fairly and effectively if parties were required to produce all communications which take place between counsel and an expert before the completion of a report of an expert whose opinion is going to be used at trial."
Two decisions made after the December 2008 announcement that Ontario’s Rules of Civil Procedure were being changed support the proposition that pre-discovery disclosure obligations under Rule 31.06(3) will broaden and the zone of privacy will become narrower as we continue to adapt to these changes.
Justice Ruth Mesbur addressed the issue of pre-trial disclosure obligations within the family law context in Bookman v. Loeb, [2009] O.J. No. 2741, relying on Rule 31.06(3) to determine the scope of counsel’s obligation to disclose information underlying its expert’s findings. Counsel for the respondent moved for production of the opposing expert’s draft reports and attachments, letters of instruction, retainer, copies of accounts and meeting notes made by counsel and the expert. Counsel for the appellant took the position that delivery of the expert’s final report was sufficient and met pre-trial disclosure obligations as it contained the expert’s findings, opinions and conclusions. She argued that production of the expert’s file, including correspondence between counsel, notes of meetings referred to in the report and details of the retainer was not properly producible as it was protected by litigation privilege.
Justice Mesbur disagreed and ordered production of all of the documents requested other than counsel’s meeting notes. In defining the applicant’s disclosure obligations, Justice Mesbur concluded that if the respondent was going to respond to the expert’s opinion in a meaningful fashion he was entitled to know, among other things, what the expert was retained to provide an opinion on, whether those instructions changed over time, whether the expert’s opinions themselves have changed over time, and what instructions or assumptions the expert was told to make, together with a list of all documents, articles or legal principles relied on by the expert.
Justice Mesbur’s order mirrors the specific requirements outlined in Rule 53.03. Her reasons are motivated by the principles of fairness and objectivity.
This gives rise to the following questions: Is Justice Mesbur’s decision a sign of the times to come? Will pre-trial discovery obligations widen and the zone of privacy be narrowed? These questions may be answered by Master P.E. Rogers’s statements in Ikea Properties Ltd. v. 6038212 Canada Inc. [2010] O.J. No. 3449 (Sup.Ct.). Master Rogers considered the level of pre-trial disclosure required by a party who was relying on expert findings as part of a Rule 20 motion. In ordering complete disclosure of the foundational information supporting the expert’s findings, Master Rogers characterized Rule 53.03 as providing "useful guidance of what is not within the zone of privacy required to protect our adversarial system."
As the one-year anniversary of the rule changes approaches, we will undoubtedly see further decisions interpreting these changes. Whether the court continues to narrow the boundaries of the zone of privacy remains to be seen.
Stacey Stevens is an associate lawyer with Thomson Rogers in Toronto. Her practice is dedicated to representing injured people and their families in matters relating to personal injury, accident benefits entitlement, products liability, occupier’s liability and sexual assault.
