Ho v Connell, 2023 ABKB 133

Court of King’s Bench of Alberta Citation: Ho v Connell, 2023 ABKB 133 Date: 20230308 Docket: 1401 07493 Registry: Calgary Between: Tammie Ho Plaintiff - and - Shaun Allen Connell and Tyco International of Canada Ltd Defendants _______________________________________________________ Reasons for Decision of the Honourable Justice Colin C.J. Feasby _______________________________________________________ Introduction [ 1 ] The Plaintiff applies for an order directing production of reports prepared by a private investigator that were later provided to the Defendants’ medical expert.

The Defendants resist the application on the grounds that the investigator’s reports are subject to litigation privilege. The Defendants further submit that the law in Alberta is that litigation privilege attaching to material provided to an expert is not waived until the expert takes the stand at trial to testify. The Plaintiff submits that by providing the investigator reports to the medical expert and then subsequently disclosing the expert’s report in accordance with Rule 5.35, the Defendants have waived litigation privilege by implication.

Background [2] On December 15, 2022, counsel for the Defendants provided counsel for the Plaintiff with the Expert Report of Dr. RashidKashani (“Kashani Report”). The Kashani Report revealed that counsel had provided Dr. Kashani with three reports prepared by aprivate investigator (the “Investigator Reports”) and that Dr. Kashani had reviewed the reports. [3] The Investigator Reports have not been provided the Plaintiff. The Defendants assert litigation privilege over theInvestigator Reports.

Counsel for the Defendants stated in correspondence to counsel for the Plaintiff refusing to provide the InvestigatorReports: The reports ... are covered by litigation privilege. These reports consist of communications that were created for the dominant purpose oflitigation. We have produced all non-communications (photographs and videos of the plaintiff) that we obtained as a result of thesurveillance in our client’s affidavit of records.... [4] Counsel for the Plaintiff did not contest the claim that the Investigation Reports were created for the dominant purpose oflitigation.

Instead, counsel for the Plaintiff asserted that by providing the Investigation Reports to Dr. Kashani, litigation privilege hadbeen waived. [5] The Plaintiff is required to deliver any expert report replying to the Kashani Report by April 15, 2023. [6] This matter is scheduled for a fifteen-day trial commencing on October 16, 2023. Litigation Privilege [7] Records that are created for the dominant purpose of litigation are privileged and need not be disclosed to the other side. Litigation privilege and solicitor-client privilege are distinct from one another.

A key difference is that solicitor-client privilege protectsa relationship whereas litigation privilege protects a process.

Flowing from that, solicitor-client privilege is of indefinite duration whilelitigation privilege expires when the litigation ends: Blank v Canada, 2006 SCC 39 at paras 27, 24, & 36; Lizotte v Aviva InsuranceCompany of Canada, 2016 SCC 52 at para 22. [8] Justice Fish, writing for the majority in Blank at para 28 quoted Sharpe JA’s pre-judicial writing (“Claiming Privilege in theDiscovery Process”, in Special Lectures of the Law Society of Upper Canada (1984), 163, at pp. 164-65) where he explained the“purpose [of litigation privilege] is more particularly related to the needs of the adversarial trial process.

Litigation privilege is basedupon the need for a protected area to facilitate investigation and preparation of a case for trial by the adversarial advocate.” [9] There is no dispute that, in the present case, the Investigator Reports were created for the dominant purpose of litigation andwere protected by litigation privilege. The question is whether the Defendants have waived litigation privilege over the InvestigatorReports by providing them to Dr. Kashani and subsequently providing the Kashani Report to the Plaintiff. [10] There are two kinds of waiver of privilege, express waiver and waiver by implication.

Simmons JA held that “[a]n expresswaiver of privilege will occur where the holder of the privilege (1) knows of the existence of the privilege; and (2) voluntarily evinces anintention to waive it”: R v Youvarajah, 2011 ONCA 654 at para 146. The facts of the present case do not support a finding of an expresswaiver because the Defendants did not intend to waive litigation privilege by providing the Investigator Reports to Dr.

Kashani. [11] Justice Kirker, as she then was, considered the question of waiver of litigation privilege by implication in JL EnergyTransportation v Alliance Pipeline Limited Partnership, 2021 ABQB 223. Kirker J referred, in turn, to Sharpe J, as he then was, inUnited States of America v Friedland, (1996) (ON SC), 30 OR (3d) 568 (ONSC) and McLachlin J, as she then was,in S & K Processors Ltd. v Campbell Avenue Herring Producers Ltd., (BC SC), [1983] 4 WWR. 762.

Both of thesedecisions rely on Wigmore on Evidence (McNaughton rev., 1961) vol. 8, para. 2327 and stand for the proposition that there are twoelements to waiver by implication: (1) implied intention; and (2) fairness and consistency. The fairness and consistency element hastraditionally been understood to require “some manifestation of a voluntary intention to waive the privilege at least to a limited extent”: S& K Processors Ltd. at para 10. McLachlin J in S & K Processors Ltd. went on to explain that voluntary intention may be inferred.

Expert Reports and Waiver of Litigation Privilege [12] The traditional rule was that expert reports were protected by litigation privilege until the expert was called to testify. JusticeVeit in Jacobson v Sveen, 2000 ABQB 215 at para 40 explained that in 1985 the Rules of Court were changed to require disclosure ofexpert reports in advance of trial. The purpose of the rule change was to prevent trial by ambush. [13] Rule 5.34 provides that expert reports are to be served in the sequence required by Rule 5.35.

Rule 5.35 provides that “if aparty intends to use the evidence of an expert at trial” the evidence must be exchanged sequentially with the “party who bears theprimary onus of proof” going first. No deadlines for the exchange of expert reports are specified by Rule 5.35. [14] As a practical matter, a trial date will not be set unless expert reports have been exchanged or there is a

schedule agreedamong the parties or directed by the court with respect to the exchange of expert reports: Civil Form 37 – Request to

Schedule a TrialDate. [15] Picard and Hunt JJA in Deloitte & Touche LLP v Institute of Chartered Accountants of Alberta (Complaints InquiryCommittee), 2008 ABCA 162 at para 45 explained that the privilege attaching to an expert report “is lost when the product of theprivileged communication is filed in court....” Since an expert report need not be filed in Court prior to being entered as an exhibit at

trial, it is more accurate to say that the privilege attaching to an expert report is lost when it is exchanged with the other side as requiredby Rules 5.34 and 5.35. [16] Justice Neilsen, as he then was, explained in Drapaka v Patel, 2013 ABQB 247 at para 34 that Rule 5.35 is an exception tolitigation privilege that “results in a plaintiff waiving litigation privilege with respect to the expert report(

s) it intends to adduce at trial.” [17] The waiver of privilege required by the exchange of reports pursuant to the Rules of Court has not been understood in Albertato waive privilege over the expert’s file. McMahon J in Chernetz v Eagle Copters Ltd, 2005 ABQB at para 12 held that “[t]here is nowaiver of privileged documents which are not the subject of a compelled disclosure unless and until the report is introduced intoevidence.” [18] At trial, an expert’s file including draft reports and correspondence with counsel may be ordered to be produced.

Slatter J, ashe then was, observed that typically disclosure of an expert report “also amounts to a waiver of the expert’s working papers”: Pinder vSproule, 2003 ABQB 33 at para 69. Picard and Hunt JJA explained in Deloitte at para 45: “If a party adverse in interest takes theposition that a partial loss of privilege (e.g., over a report’s contents as a result of its filing) does not equate to a total loss of privilege(e.g., over all aspects of the retainer that led to the report), the matter is settled by the rules of court regarding relevance, materiality andadmissibility” [citations omitted].

Justice Slatter expressed a similar perspective in Pinder at para 27 where he said that the “opinions ofcounsel as to the merits of a lawsuit or the tactics to be followed, or what evidence is needed, are likewise irrelevant and inadmissible.” Romaine J concurred in Dow Chemical Canada ULC v NOVA Chemicals Corporation, 2021 ABQB 784 at para 13 saying shedisagreed with the view that “privilege is automatically lost on all communications between an expert and instructing counsel even if theexpert’s opinion is tendered at trial.” [19] There is good reason for a Court to be circumspect about ordering disclosure of prior drafts and correspondence between anexpert and counsel.

Sharpe JA made this point in Moore v Getahun, 2015 ONCA 55 at para 71: Making preparatory discussions and drafts subject to automatic disclosure would, in my view, be contrary to existing doctrine and wouldinhibit careful preparation. Such a rule would discourage the participants from reducing preliminary or tentative views to writing, anecessary step in the development of a sound and thorough opinion. Compelling production of all drafts, good and bad, would discourageparties from engaging experts to provide careful and dispassionate opinions and would instead encourage partisan and unbalancedreports.

Allowing an open-ended inquiry into the differences between a final report and an earlier draft would unduly interfere with theorderly preparation of a party’s case and would run the risk of needlessly prolonging proceedings. [20] Sharpe JA went on to conclude at para 78 that “[a]bsent a factual foundation to support a reasonable suspicion that counselimproperly influenced the expert, a party should not be allowed to demand production of draft reports or notes of interactions betweencounsel and an expert witness.” Foundational Information Relied Upon by Expert [21] A distinction must be made between records provided to an expert to review for the purpose of forming an opinion and othermaterials that may comprise the expert’s file such as correspondence with counsel and draft reports.

The concerns identified by SharpeJA in Moore do not apply to foundational information relied upon by an expert. [22] The law in Ontario is that the foundational information that underlies the expert’s report must be produced in advance of trial:Moore at para 7; Conceicao Farms Inc v Zeneca Corp (2006), (ON CA), 83 OR (3d) 792 (CA) at para 14.

Thisapproach is rooted in Rule 31.06(3) of the Ontario Rules of Civil Procedure which allows litigants to discover the “the findings, opinionsand conclusions of an expert engaged by or on behalf of the party being examined....” The word “findings” has been interpreted broadlyto include information provided to an expert: Conceicao Farms, para 14. [23] The law in Alberta is less clear. Master Smart in Grammer v Langpap, 2014 ABQB 74 considered an application for pre-trialproduction of records relied upon by a psychologist in preparing an expert report.

Master Smart started from the premise that litigationprivilege over an expert’s file is not waived until an expert witness takes the stand and went on to observe that there was nothing in theRules of Court “altering the privilege historically afforded to litigants”: Grammer at para 10.

As a result, he denied the application forthe raw data underlying the expert report. [24] Justice Goss in Reid v Bitangcol, 2016 ABQB 122 considered an application for pre-trial production of an earlier reportprepared by an expert who was not going to be called to testify but whose report had been given to experts who were going to testify.

She declined to order production of the report of the non-testifying expert that was given to the experts that would be testifying saying atpara 25 that “the Plaintiffs have not waived privilege through provision of the Michaels Report to their experts in the circumstances.” [25] Rule 5.37 permits questioning of an expert prior to trial by agreement or with leave of the Court. Though a contingent right,the right to question an expert prior to trial pursuant to Rule 5.37 is like the right in the Ontario rules.

Justice Phillips held in BJM vSLM, 2012 ABQB 731 at para 36 held: I am of the opinion that the reference to the expert’s report in Rule 5.37(2), and for that matter in Rule 6.42, should be interpreted toinclude both the report itself and the basis thereof, namely the documents reviewed in preparing it. Without those documents, thequestioning of the expert would be of limited utility, particularly in a case like this where the credibility of the expert and the validity ofhis or her opinion is so crucial to the resolution of the issues.

In the absence of the reviewed documentation, counsel’s ability to make ameaningful assessment of the expert’s opinion would be sharply curtailed and the potential for reduction in trial time and complexitywould be lost. In some cases, there may be good reason to limit production of the reviewed documents; this can be achieved through theimposition of conditions pursuant to Rule 5.37(3). This, however, is not such a case [emphasis added]. [26] The right to question an expert in Rule 5.37, even though it is a contingent right, necessarily implies the right to explore the

foundations of the expert’s report.

The waiver of privilege with respect to foundational information occurs when the expert report is exchanged because it is at that time when the party delivering the expert report signals to the other side its intention to rely at trial on the expert report and, by extension, the foundational information underlying the expert report. [ 27 ] The question before the Court in the present case, whether an investigator’s report provided to a medical expert should be disclosed, was before Justice Perell in Aherne v Chang , 2011 ONSC 3846 ; see also, Wray v Pereira , 2018 ONSC 4623 at para 11 .

Perell J held as follows: [12] 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. [13] 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. [14] Notwithstanding, the Defendants’ argument that this early disclosure of the surveillance evidence would be harmful or purposeless, in my opinion, the early disclosure is supported by the existing law and is all of procedurally fair, efficient, and productive to the settlement or adjudication of the lawsuit. [ 28 ] At the present juncture of the litigation, it is unfair to the Plaintiff to have its expert file a report replying to the Defendants’ expert report without access to the same foundational information.

Rule 1.2(1) explains that a purpose of the Rules of Court is to “provide a means by which claims can be fairly and justly resolved in or by a Court process in a timely and cost-effective way.” Requiring parties to provide foundational information concurrently with the delivery of an expert report so that the other side’s experts can effectively respond, is fair, efficient, and furthers the purpose of the Rules of Court . [ 29 ] A further practical concern in the present case is that if the Investigator Reports are not required to be disclosed concurrently with the Kashani Report, they would be disclosed at trial when the Defendant’s expert took the stand to testify.

The Plaintiff would not have had an adequate opportunity prepare to cross-examine on the Investigation Reports and would be justified in asking for an adjournment. The Plaintiff’s expert who would already have testified by the time that the Defendant’s expert took the stand would not have had an opportunity to comment on the Investigator’s Reports and may have to be recalled as a witness in reply. This is no way to run a trial. [ 30 ] The Defendants in the present case had a choice. The Defendants could have decided to only disclose the photographs and video obtained by the private investigator to Dr. Kashani.

After all, the Defendants only gave the photographs and video to the Plaintiff. If the Defendants had done that, the experts for both sides would have had the same foundational information and there would have been a level playing field. But the Defendants chose instead to give the Investigator Reports to Dr. Kashani. [ 31 ] I find that by providing the Investigator Reports to Dr. Kashani, the Defendants have indicated that they intend to rely upon the Investigator Reports to make their case. This is sufficient to indicate a voluntary intention to waive litigation privilege.

I further find that fairness and consistency require disclosure of the Investigator Reports. Accordingly, there has been a waiver of litigation privilege by implication. This is also an appropriate case to find a waiver as litigation privilege exists to serve the needs of the litigation process. Here, continuation of the privilege would be detrimental to the litigation process. This conclusion weighs in favour of a finding that litigation privilege has been waived. Conclusion [ 32 ] I direct that the Investigator Reports be produced forthwith to the Plaintiff.

I further grant the Plaintiff an extension of three weeks to file a reply expert report. The extension of time is justified by the time that it took to hear and decide this application and the time that it will take the Plaintiff’s expert to review and address the Investigator Reports. [ 33 ] I award the Plaintiff the costs of this application. If the parties are unable to agree on the amount of costs, they may provide me with written submission of two pages or less supported by a draft bill of costs. Heard on the 24 th day of February, 2023. Dated at the City of Calgary, Alberta this 8 th day of March, 2023.

Colin C.J. Feasby J.C.K.B.A. Appearances:

Mandeep Dhillon, Vogel LLP for the Plaintiff Preet Sani, McMillan LLP for the Defendants