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 Lawrence Theall |
- and - |
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| ZENECA
CORP. cob as ZENECA ARGO, and ZENECA INC. and BRADFORD
CO-OPERATIVE STORAGE LIMITED Plaintiffs (Appellants) |
Gavin
MacKenzie |
Heard: September 5, 2006 |
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On appeal for an order setting aside the order of Justice Eileen Gillese dated July 26, 2006.
[1] The respondents in this appeal move pursuant to rule 61.16(6) to set aside the order of Gillese J.A. dated July 26, 2006.
[2] The circumstances leading to the order are as follows. The appellants sued the respondents for supplying defective pesticide. In August 1999, the respondents’ original counsel retained an expert, Dr. Grafius, to assist with the litigation. On March 14, 2000, that counsel had a lengthy telephone conversation with Dr. Grafius which counsel transcribed. Counsel kept the resulting memorandum in her file. The respondents’ affidavit of documents asserted privilege over all documents and memoranda prepared for the purposes of the litigation and the March 14 memorandum was therefore not produced to the appellants.
[3] In December 2000, the respondents retained new counsel who did not establish contact with Dr. Grafius until April 2003. Dr. Grafius then prepared an expert’s report for the respondents which was served on the appellants eight months before trial. He was then called as a witness at trial.
[4] The appellants’ action was dismissed with costs at trial, with the trial judge relying in part on the expert evidence of Dr. Grafius.
[5] When the respondents provided material to the appellants in support of their costs claim, the existence of the March 14 memorandum came to light through the dockets of the respondents’ original counsel.
[6] The appellants then moved before the trial judge to request production of that memorandum. The trial judge dismissed their request, saying among other things, that even if he had ignored the evidence of Dr. Grafius he would have come to the same conclusion and dismissed the appellants’ action.
[7] The appellants have appealed and now seek to obtain the March 14 memorandum to tender as fresh evidence on the appeal, in order to argue that a decision based in part on the expert evidence of Dr. Grafius cannot stand, since the memorandum was wrongly withheld from them and could not therefore be used to cross-examine the expert.
[8] The memorandum was not produced to the trial judge, Gillese J.A. or this court. However, the appellants put circumstantial evidence before Gillese J.A. by way of affidavit from which they asked her to conclude that the memorandum contained either a preliminary opinion of Dr. Grafius or “foundational information” for his final opinion and was therefore producible to them pursuant to rule 31.06(3).
[9] Gillese J.A. was unable to conclude that the memorandum contained a preliminary opinion by Dr. Grafius and we would not interfere with that finding. She did find that the memorandum contained foundational information for his final opinion. She held that, as such, the memorandum should not be seen as part of counsel’s work product protected by litigation privilege, but should be producible pursuant to rule 31.06(3). She therefore ordered it produced to the appellants.
[10] The appellants seek to make their case under rule 31.06(3). It 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.
[11] The rule is about the information that a party may obtain on discovery concerning the findings, opinions and conclusions of another party’s expert. It speaks to the right to obtain disclosure, whether the information to be disclosed is contained in a document or not. It does not speak to the production of documents. The privilege attaching to a document is not erased simply because some or all of the information in the document must be disclosed if asked for on discovery.
[12] It is true that, as a practical matter, the obligation to disclose the information in a document is often discharged by simply producing the document. Indeed, probably because of this, much of the case law concerning rule 31.06(3) refers to the rule requiring “production.”
[13] In Holmested and Watson at p. 31-106, the learned authors clearly and concisely summarize these aspects of the rule:
Rule 31.06(3) is concerned with fact disclosure, not with documentary production. If prepared in contemplation of litigation an expert’s report is privileged and the report itself (i.e., the document) remains technically privileged, notwithstanding rule 31.06(3). However, in practice the parties often waive this privilege and deliver or exchange expert’s reports in lieu of, or in fulfillment of their obligations under rule 31.06(3).
[14] There is an area of debate concerning the scope of information that may be obtained pursuant to this rule. It clearly encompasses not only the expert’s opinion but the facts on which the opinion is based, the instructions upon which the expert proceeded, and the expert’s name and address. How far beyond this the right to obtain foundational information (as our colleague called it) extends, need not be determined here. Suffice it to say that we are of the view that it does not yet extend as far as is tentatively suggested in Browne (Litigation Guardian of) v. Lavery (2002), 58 O.R. (3d) 49. We simply proceed on the basis that the rule entitles the appellant to obtain on discovery the foundational information for Dr. Grafius’ final opinion. As will become clear, we need not decide in this case the precise extent of the information that is discoverable.
[15] In ordering that memo to be produced, Gillese J.A. found that the March 14, 2000 memorandum contains foundational information for Dr. Grafius’ final opinion and that the appellants have the right to obtain that information under rule 31.06(3).
[16] Accepting her finding about the contents of the memorandum, we agree that the rule entitles the appellant to obtain on discovery the foundational information contained in the memorandum. However we would part company with our colleague on whether the appellants are entitled to obtain that information at this stage, after trial. We think not.
[17] As Mr. Gover candidly acknowledged, the record makes clear that the appellants knew, prior to trial, that the respondents had obtained original counsel and as well, counsel’s identity. He also acknowledged that the appellants had information suggesting that Dr. Grafius had prepared a report for original counsel. Most importantly, the appellants knew of Dr. Grafius’ final opinion months before trial. They had been served with a copy. They were entitled then to seek discovery of the foundational information for that opinion pursuant to rule 31.06(3). It appears that they did not do so.
[18] In our view, there is no basis for them to do so now. Rule 31.06(3) applies to the discovery stage of litigation, which is closed. It gives the appellants no right to obtain disclosure after trial. Nor should they be otherwise entitled to disclosure at this late stage to cure their own failure to properly exercise their right to obtain this foundational information on discovery.
[19] We do not think it is an answer to say that the appellants did not know of the memorandum until after trial. The rule does not give them the right to production of the memorandum but rather to obtain discovery of the foundational information for the findings, opinions and conclusions of Dr. Grafius contained in the memorandum. That it is a right they had right up to trial. There is no basis in the rule or in fairness to give them the same right, by means of the production of the memorandum, now that the trial has been concluded. For the trial process to function fairly and properly, parties must exercise their right to obtain discovery at the discovery stage not seek to do so after trial.
[20] That is enough to dispose of the respondents’ request for review. However, because counsel addressed it in argument, we offer this on one other issue: in our view, this case does not suggest a need to modify the rule of litigation privilege where experts are concerned. There is no doubt that litigation privilege attached to the March 14, 2000 memorandum. It was prepared by counsel as part of defending the lawsuit. That was its substantial if not its only purpose. Moreover as is made clear in the recently decided case of Blank v. Canada (Minister of Justice), [2006] S.C.C. 39, which counsel forwarded to us, there can be no doubt that this privilege continues because the litigation continues.
[21] Taking as a given that a document protected by litigation privilege and part of counsel’s work product contains the foundation for an expert opinion, there is no need to remove the privilege for the document itself to do justice. The foundational information in the document is available under rule 31.06(3), if it is sought on discovery. Removing the privilege for the document itself is not necessary to obtain that information, but does run the risk of requiring disclosure of properly privileged information that is often intertwined with discoverable information in the lawyer’s work product.
[22] We would therefore set aside the order of Gillese J.A. and dismiss the appellants’ motion. As agreed by counsel, costs of the motion and this review are for the panel hearing the appeal.
“S.T. Goudge J.A.”
“R.A. Blair J.A.”
“R. Juriansz J.A.”