B E T W E E N : |
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CONCEICAO FARMS
INC., HORODYNSKY FARMS INC., PAUL HORODYNSKY, W.J.
SMITH GARDENS LIMITED, ROMAN DYRIW, MICHAEL DYRIW and 466203
ONTARIO LIMITED |
Brian Gover |
- and - |
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ZENECA CORP. c.o.b. ZENECA AGRO and ZENECA INC. and BRADFORD
CO-OPERATIVE STORAGE LTD. |
Gavin MacKenzie |
Heard: July 14, 2006 |
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A motion in an appeal from the judgments of Justice Blenus Wright of the Superior Court of Justice dated June 11, 2004 and December 20, 2005.
[1] Is the foundation of an expert’s findings, conclusions or opinions subject to production under rule 31.06(3) of the Rules of Civil Procedure or does litigation privilege protect such information, even though the expert is called to testify at trial? This motion raises this question and demonstrates the tension that exists between rule 31.06(3) and the ‘zone of privacy’ protected by litigation privilege.
[2] The four plaintiffs in this action are farmers in Holland Marsh, Ontario (the “appellants”). They grow onions, among other things. Onion maggots can attack an onion bulb in its early stage, which causes the onion to die. The severity of attacks by onion maggots can be mitigated by the use of pesticides.
[3] Farmers in the Holland Marsh area use one of two such pesticides: Lorsban or Dyfonate. Lorsban is manufactured by Dow Chemical. The respondents (“Zeneca”) manufacture Dyfonate. Dyfonate is designed to protect onion crops from damage by first generation onion maggots.
[4] In 1995, farmers in the Holland Marsh suffered considerable damage to their onion crops when they used Dyfonate but had good results with Lorsban. The farmers who used Dyfonate blamed it for their losses. Some of the farmers settled their claims with Zeneca. The appellants chose, instead, to bring this action against Zeneca. They claimed that the Dyfonate they used in 1995 was faulty and failed to properly protect their crops from onion maggot infestation.
[5] The trial of the action took place over thirteen days in March and April 2004 before B. Wright J.
[6] The appellants’ position at trial was that the Dyfonate they used had to be effective for at least 60 days after planting in order to protect against first generation onion maggots. They maintained that damage to their crops occurred between 31 and 40 days after planting and that, therefore, the Dyfonate that had been used had failed to provide the required protection. The respondents argued that a combination of earlier than usual planting of the onion seeds coupled with a later than usual emergence of the onion maggot fly lessened the ability of Dyfonate to kill the onion maggots at the crucial time period.
[7] Dr. Grafius testified as an expert for the respondents at trial. In his first written report, dated July 30, 2003, he opined that the period of onion maggot control was 60 days. His second report, a PowerPoint presentation provided to the appellants on the eve of his examination and cross-examination, changed the 60-day period to 45 days.
[8] During cross-examination at trial, an issue arose as to whether he had been retained by the respondents’ prior counsel, Ms. Fox. Dr. Grafius testified that he could not recall: whether he had been retained by the respondents’ prior counsel, what her name was, any details of conversations he may have had with such counsel, whether he had provided prior counsel with a report, nor what he knew about the case in 1999.
[9] Trial counsel for the appellants then requested production of Dr. Grafius’s notes and records, saying:
Your Honour, before we break, in light of the evidence we have heard, I would like to make a request that we get production of the witness’s notes and records. We are usually entitled to the underlying data, and we would like some response as to whether, in fact, there was an expert’s report done for Ms. Fox.
[10] Counsel for the respondents responded in open court. The transcript shows that the answer given was,
I inherited this file in December of 2000, and there was no report there. There was no note that Ms. Fox or someone from the office had spoken to Dr. Grafius. I was asked that question on discovery, that’s the answer I gave on discovery.
[11] As explained below, there is a dispute over whether the respondents’ counsel said there was “no” note or that there was “a” note.
[12] In light of the answer given by counsel for the respondents, the appellants’ counsel did not pursue their request for production.
[13] By judgment dated June 11, 2004, the trial judge dismissed the appellants’ claims. In his reasons, the trial judge stated that the action was dependent on factual findings, namely, whether the crop damage in 1995 was the result of poor quality Dyfonate or environmental factors. He noted that the respondents’ position was supported by the findings of an ad hoc committee and the opinion of Dr. Grafius “who is probably North America’s foremost expert on the onion maggot problem”. He also stated that a major failure in the appellants’ case was the lack of expert evidence to support their position. He held that the weight of the evidence supported the respondents’ position. He concluded that, “Unusual or unique environmental factors in 1995 caused the onion maggot damage”.
[14] Several months after the trial had ended and the decision rendered, in the course of preparing costs submissions, counsel for the appellants discovered what they viewed as an inconsistency between the statements given by counsel for the respondents in open court, set out above, and the docket entries. The docket entries showed that the respondents’ prior counsel, Ms. Fox, had retained Dr. Grafius and had a lengthy telephone conversation with him on March 14, 2000, seven months after he had been retained. Ms. Fox recorded her conversation with Dr. Grafius. The recording had been transcribed after which Ms. Fox spent approximately an hour revising or editing the transcript of the conversation. The result was a single-spaced document running 24 pages in length (hereafter the “Memorandum”).
[15] The appellants asked counsel for the respondents to produce the Memorandum.
[16] Counsel for the respondents responded by pursuing the matter with the court reporter. He wrote to her saying that there was an error in the transcript, as he recalled saying not that there was “no” note but, rather, that there was “a” note. He asked the court reporter to review the recording she had made of the proceeding and, if she saw fit, to revise the transcript to show that he had answered the question by saying that there was “a” note from Ms. Fox.
[17] The reported reviewed her notes and declined to change the transcripts, saying that the transcript accorded with her notes.
[18] Counsel for the respondents then advised counsel for the appellants that he refused to produce the Memorandum as it was privileged and had not been requested at trial. Prior to that point, privilege had not been claimed over the Memorandum.
[19] The appellants brought a motion before the trial judge in which they sought production of Dr. Grafius’s entire file, including the Memorandum. They asked the trial judge to: re-open the trial; strike out Dr. Grafius’s evidence and grant judgment in their favour; or, declare a mistrial. In an endorsement dated December 20, 2005, the trial judge dismissed the motion on the basis that he would have come to the same conclusion even if he had ignored Dr. Grafius’s evidence.
[20] The appellants appeal the judgment of June 11, 2004. In a supplementary notice of appeal, they appeal also the trial judge’s decision to dismiss their post-trial motion for production.
[21] The appeal in this matter is scheduled to be heard by this court in early September 2006. The appellants move for production of the Memorandum so that they can determine whether it is necessary to bring a motion to admit fresh evidence in conjunction with their appeal. Given the length of the conversation between Dr. Grafius and Ms. Fox and the time spent on the transcripts of that conversation, the appellants believe that Dr. Grafius provided Ms. Fox with an oral report that was reduced to writing in the Memorandum. They argue that they were deprived of their right to properly test Dr. Grafius’s conclusions at trial because they did not have access to the Memorandum.
[22] The respondents oppose production on the basis that the Memorandum is the work product of the respondents’ former solicitor. They say that the conversation between Dr. Grafius and Ms. Fox consisted primarily of a general discussion respecting the technical issues in the case and that no findings, opinions or conclusions were offered by Dr. Grafius. They argue that notes, letters, memoranda and other materials prepared by counsel in anticipation of, or during the course of, litigation are protected by litigation privilege and that privilege is not waived by production of the expert’s report.
[23] I raised the question of the jurisdiction of a single judge of this court to decide the motion. I was concerned because, arguably, the motion would amount to a final determination of one matter raised on appeal, that being the validity of the trial judge’s refusal to order post-trial production. Rule 61.16(2.2) of the Rules of Civil Procedure stipulates that a motion for an order that finally determines an appeal, other than an order dismissing the appeal on consent, be determined by a panel of no fewer than three judges.
[24] The parties both expressly stated that they did not want to argue the matter of jurisdiction and asked that I decide the matter. I have proceeded on the assumption that, as a single judge of the court, I have jurisdiction to decide the motion.
[25] The scope of disclosure with respect to the opinions of an expert is governed by rule 31.06(3) of the Rules of Civil Procedure. That rule reads as follows:
(3) A party may on an examination for discovery obtain disclosure of the findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined that relate to a matter in issue in the action and of the expert’s name and address, but the party being examined need not disclose the information or the name and address of the expert where,
(a) the findings, opinions and conclusions of the expert relating to any matter in issue in the action were made or formed in preparation for contemplated or pending litigation and for no other purpose; and
(b) the party being examined undertakes not to call the expert as a witness at the trial.
[26] Dr. Grafius was called at trial as an expert. As a result, in accordance with 31.06(3), no privilege can attach to the findings, opinions and conclusions given by him to counsel for the respondents. The question remains, however, whether privilege attaches to the Memorandum.
[27] The appellants argue that rule 31.06(3) is not limited to final findings, opinions and conclusions. They rely on Cheaney v. Peel Memorial Hospital (1990), 73 O.R. (2d) 794 (S.C. (Mast.)) to argue that the scope of rule 31.06(3) extends to any finding, opinion or conclusion that can be “expressed in a sufficiently coherent manner that it can be used by counsel”, including oral discussions such as that which took place between Ms. Fox and Dr. Grafius. They say that while they cannot know the contents of the conversation, the fact that the transcript of the conversation is 24 pages in length, single-spaced, and that so much time was spent editing the transcript, implies that it was not simply an initial consultation or an informal discussion. They suggest that the conversation must have amounted to an oral report, albeit a preliminary one.
[28] The appellants also rely heavily on the majority decision of this court in General Accident Assurance Co. v. Chrusz (1999), [2000] 45 O.R. (3d) 321. Chrusz, they say, and the decisions that follow it, such as Browne (Litigation Guardian of) v. Lavery (2002), 58 O.R. (3d) 49 (S.C.J.), narrow the scope of litigation privilege, most notably in respect of expert reports.
[29] Finally, they say that it is the duty of counsel, as an officer of the court, to disclose any coherent findings, conclusions or opinions of an expert as they are disclosed to counsel. They maintain that there was an obligation on the part of opposing counsel to disclose the Memorandum prior to trial and that the failure to disclose its existence deprived them of the opportunity to properly test Dr. Grafius’s conclusions at trial. Without the opportunity to review the Memorandum, they say that it is impossible for them to assess the extent of prejudice they have suffered as a consequence of that failure.
[30] The respondents submit that the case law does not support the broad interpretation of rule 31.06(3) advanced by the appellants and that the Memorandum is protected by litigation privilege. They argue that broadening the scope of rule 31.06(3) would radically change the strategies employed by counsel in dealing with expert witnesses, which in turn would damage counsels’ ability to put forward the best cases for their clients. They point to Susan Hosiery Limited v. M.N.R., [1969] 2 Ex. C.R. 27 and Hodgkinson v. Simms (1988), 55 D.L.R. (4th) 577 (B.C.C.A.), cases in which the courts have upheld litigation privilege and affirmed the need for counsel to maintain the privacy of case preparation in order to adequately advise and represent their clients. They quote from Susan Hosiery, at p. 34, “If lawyers were entitled to dip into each other’s briefs by means of the discovery process, the straightforward preparation of cases for trial would develop into a most unsatisfactory travesty of our present system”.
[31] The respondents note that both the former and current counsel for the respondents reviewed the Memorandum and concluded that it does not contain any findings, opinions, or conclusions. They submit that the notes and records on which an expert’s report is based are privileged and that privilege is not waived by production of the expert’s report. Similarly, they maintain that preliminary drafts of a report are not “findings, opinions and conclusions of the expert” within the meaning of rule 31.06(3) and are, therefore, privileged. For the former proposition, they cite Metropolitan Toronto Condominium Corp. No. 555 v. Cadillac Fairview Corp. (1988), 29 C.P.C. (2d) 110 (Ont. S.C. (Mast.). For the latter proposition, they rely on Kelly v. Kelly (1990), 42 C.P.C. (2d) 181 (Ont. Unif. Fam. Ct.); Jenkyns v. Kassam, [2002] O.J. No. 4995 (S.C. (Mast.)) and Fougere v. Acadia Drug (1969) Ltd., [1993] N.B.J. No. 405.
[32] In my view, the reasoning in R. v. Stone, [1999] 2 S.C.R. 290 and Chrusz support a broad interpretation of rule 31.06(3) and a corresponding narrowing of litigation privilege in the area of expert reports.
[33] At para. 99 of Stone, Binnie J., in dissent but not on this point[1], states:
[O]nce a witness takes the stand, he/she can no longer be characterized as offering advice to a party. They are offering an opinion for the assistance to the court. As such, the opposing party must be given access to the foundation of such opinions to test them adequately.
[34] Although these comments are made in the context of a criminal proceeding, there is nothing to suggest that they are limited to such proceedings.
[35] At 331 of Chrusz, Carthy J. A., writing for the majority and discussing litigation privilege, explains:
[T]here is nothing sacrosanct about this form of privilege. It is not rooted, as is solicitor-client privilege, in the necessity of confidentiality in a relationship. It is a practicable means of assuring counsel of what Sharpe calls a “zone of privacy’ and what is termed in the United States, protection of the solicitor’s work product. [citations omitted]
The “zone of privacy” is an attractive description but does not define the outer reaches of protection or the legitimate intrusion of discovery to assure a trial on all of the relevant facts. The modern trend is in the direction of complete discovery and there is no apparent reason to inhibit that trend so long as counsel is left with sufficient flexibility to adequately serve the litigation client. In effect, litigation privilege is the area of privacy left to a solicitor after the current demands of discoverability have been met. There is a tension between them to the extent that when discovery is widened, the reasonable requirements of counsel to conduct litigation must be recognized.
[36] The reasoning in Stone and Chrusz has been applied in recent cases, in my view correctly, to diminish the scope of litigation privilege. In Browne, supra, Ferguson J. relied on Stone when taking a broad view of rule 31.06(3). He held that the report of an expert who was not being called at trial had to be produced because that report was referred to by an expert who was being called. In ruling that the first report was producible, he advocated an expansive view of the word “findings” in rule 31.06(3). He explains the need for such an approach in paras. 66 to 72 of Browne:
[66] It is my tentative view 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.
[67] I can appreciate that discussions between counsel and experts for educational purposes might generally best be ruled to be within the zone of privacy protected by litigation privilege. For instance, counsel might communicate with the expert to discuss what information the expert needed to prepare an opinion. Counsel might also want to communicate with the expert to discuss questions which might be put to the expert or to the opposing expert at trial.
[68] If the communications took place before the preparation of the report, then I am inclined to think it would [be] best for our system of litigation if they were producible because they would influence the opinion and there would be no practical way of determining this without producing and examining the communications and hearing submissions on the issue.
[69] Any experienced counsel who has dealt with experts would appreciate how important it would be to know what the expert was instructed to do, what the expert was instructed not to do, what information was sent to the expert and the extent to which counsel instructed the expert as to what to say, include or omit in the report. McLeish and Smitiuch discuss in their article numerous cases which struggled with these issues. I would guess that every experienced litigation counsel knows such influential factors are not rare but commonplace. A recent and alarming example was discussed in the recent case of Whiten v. Pilot Insurance Co. (1999), 42 O.R. (3d) 641, 170 D.L.R. (4th) 280 (C.A.).
[70] In my view, the disclosure of this information would best enable an opposing counsel and the court to assess whether the instructions and information provided affected the objectivity and reliability of the expert’s opinion. I also note there is much contrary opinion on this subject: e.g. Mahon v. Standard Life Assurance Co., [2000] O.J. No. 2042 (S.C.J.).
[71] This area of the case law cries out for appellate review.
[72] There is much cynicism among the bench and bar concerning the objectivity and reliability of experts’ opinions in today’s litigation. I believe requiring full production concerning the origins of the opinion would deter inappropriate influence on an expert and help restore confidence in the process.
[37] Although Cheaney pre-dates Stone and Chrusz, it reflects a similar view of rule 31.06(3). In Cheaney, Master Clark ruled that preliminary findings, opinions and conclusions were to be disclosed saying, at p. 798, that “if a finding is expressed in a sufficiently coherent manner that it can be used by counsel, then it is a ‘finding’ that ought to be disclosed”. He adds that the same reasoning applies to “opinions” and “conclusions”.
[38] Similarly, in Aviaco International Leasing Inc. v. Boeing Canada Inc., [2002] O.J. No. 3799 (Sup. Ct.), Nordheimer J. concluded that draft reports had to be produced because they represent the preliminary findings, opinions and conclusions of the expert and therefore fall within the scope of rule. 31.06(3). Justice Nordheimer expressly endorsed the reasons of Ferguson J. in Browne, saying at para. 16, that a party ought to be able to explore with an expert whether the expert changed their views from draft to draft and, if so, why. As Nordheimer J. stated, it is all part of testing the expert’s conclusions.
[39] In my view, the reasoning and results in Browne, Cheaney and Aviaco are consistent with the reasoning of the majority of this court in Chrusz and with the reasoning of the Supreme Court in Stone and are to be preferred to the cases relied on by the respondents.
[40] It will be apparent that I do not accept the respondents’ submission that preliminary drafts do not fall within the scope of rule 31.06(3). I would add that I share Nordheimer J.’s view, as expressed in Aviaco at para. 16, that it is important that such material be produced in advance of the trial so that the trial is not interrupted while the material is reviewed.
[41] Expert opinion tendered by a party is a unique type of evidence. Although generally retained by one side to the litigation or the other, experts are expected to be neutral. Their testimony is meant to assist the court and the trier of fact, not to bolster the theory of the case presented by one of the two sides. Their status as experts derives, in significant measure, from the assumption that they will offer the court objective opinions on which the court is entitled to rely.
[42] Rule 31.06(3) is to be interpreted bearing in mind the role of the expert and the recent jurisprudence of the Supreme Court of Canada and this court. As such, a broad approach is warranted, one that – in the words of the Supreme Court of Canada in Stone – would enable opposing counsel to have access to the “foundation” of the expert’s opinions. This approach would require disclosure of all foundational information for the expert’s report, whether or not the final findings, opinions or conclusions expressly reflect that information.
[43] Consequently, in my view, the Memorandum should have been produced prior to trial and I would order its production now. As I have not seen the Memorandum, I cannot know whether it contains preliminary findings, opinions or conclusions. However, given its length, and the timing and duration of the conversation that led to its creation, it is fair to assume that it contains foundational information for Dr. Grafius’s final findings, opinions and conclusions. Production will enable the appellants to determine whether they were improperly denied the right to test Dr. Grafius’s evidence at trial. Production will also ensure that confidence was properly reposed in Dr. Grafius’s opinions by the trial judge. As the Memorandum appears to record information from Dr. Grafius, I see it as part of the foundation for his final findings, opinions and conclusions, rather than the work product of Ms. Fox.
[44] The respondents advanced two other arguments in opposition to the motion. Both can be dealt with summarily. First, they argue that what the appellants sought at trial was production of Dr. Grafius’s “notes and records”. They say that the Memorandum is neither and, as it was not requested at or before trial, it should not be ordered to be produced now.
[45] I do not accept this argument. The existence of the Memorandum and the fact of Dr. Grafius’s conversation with Ms. Fox were, at all material times, unknown to the appellants. I do not see how they could pursue production of a document that they, for good reason, did not know of or believe to exist. On the record, it is reasonable to assume that had counsel known of its existence, they would have requested its production.
[46] The respondents also submit that given the lengthy delay between the end of the trial and this motion, the appellants should not be entitled to an order requiring production of the Memorandum.
[47] Again, I do not accept this argument. In my view, the matter of delay and any prejudice that may result from the delay is properly considered in the context of a motion to admit fresh evidence, if such a motion is brought. In the circumstances, I do not see delay as relevant to the question of whether to order production of the Memorandum at this stage. Even if I had been inclined to find that delay was a relevant consideration, because the respondents have alleged no prejudice and the delay has been satisfactorily explained, I would not have given effect to this argument.
[48] Accordingly, I order the respondents to produce the Memorandum to the appellants, within ten days of the date of these reasons. Costs of this motion are reserved to the panel hearing the appeal.
“E. E. Gillese J.A.”
[1] See para. 228 in which Bastarache J. agrees with Binnie J.’s analysis on this point.