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Evidence - Privilege - Litigation (2)

. Air Passenger Rights v. Canada (Attorney General)

In Air Passenger Rights v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal briefly characterizes litigation privilege:
[39] As concerns litigation privilege, such privilege was originally developed to permit lawyers to prepare their files in confidence. It extends to documents and communications whose dominant purpose is preparation for litigation (Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52 at paras. 19–25, 404 D.L.R. (4th) 389; Blank v. Canada (Minister of Justice), 2006 SCC 39 at para. 60, 270 D.L.R. (4th) 257; Webasto Product North America Inc. v. Shasta Equities Ltd., 2014 FCA 135 at para. 25, 374 D.L.R. (4th) 757).
. Glegg v. Glass

In Glegg v. Glass (Ont CA, 2020) the Court of Appeal considers the range of litigation privilege:
[64] While litigation privilege usually ends when the litigation ends, it continues where litigants or related parties remain locked in what is essentially the same legal combat: Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, at para. 34. Related litigation includes separate proceedings that involve the same or related parties and arise from the same or a related cause of action, or proceedings that raise issues common to the initial action and share its essential purpose: Blank, at para. 39. ....
. Blank v. Canada (Minister of Justice)

In Blank v. Canada (Minister of Justice) (SCC, 2006) the Supreme Court of Canada established clearly that litigation privilege exists as a separate category from solicitor-client privilege:
27 Litigation privilege, on the other hand, is not directed at, still less, restricted to, communications between solicitor and client. It contemplates, as well, communications between a solicitor and third parties or, in the case of an unrepresented litigant, between the litigant and third parties. Its object is to ensure the efficacy of the adversarial process and not to promote the solicitor-client relationship. And to achieve this purpose, parties to litigation, represented or not, must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.
. Moore v Getahun

In Moore v Getahun (Ont CA, 2015) the Court of Appeal considers when litigation privilege applies to drafts and ancillary material of expert reports:
(vi) Documentation and disclosure of consultations regarding draft reports

[67] I now turn to the issue of the extent to which consultations between counsel and expert witnesses need to be documented and disclosed to an opposing party.

[68] The starting point for analysis is that such consultations attract the protection of litigation privilege. Litigation privilege protects communications with a third party where the dominant purpose of the communication is to prepare for litigation. As explained by the Supreme Court of Canada in Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, at para. 27, the object of litigation privilege “is to ensure the efficacy of the adversarial process”, and “to achieve this purpose, parties to litigation… must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.” These concerns are important in the context of the preparation of expert witnesses and their reports.

[69] In Blank, the court noted, at para. 34, that litigation privilege creates “a ‘zone of privacy’ in relation to pending or apprehended litigation.” The careful and thorough preparation of a case for trial requires an umbrella of protection that allows counsel to work with third parties such as experts while they make notes, test hypotheses and write and edit draft reports.

[70] Pursuant to rule 31.06(3), the draft reports of experts the party does not intend to call are privileged and need not be disclosed. Under the protection of litigation privilege, the same holds for the draft reports, notes and records of any consultations between experts and counsel, even where the party intends to call the expert as a witness.

[71] Making preparatory discussions and drafts subject to automatic disclosure would, in my view, be contrary to existing doctrine and would inhibit careful preparation. Such a rule would discourage the participants from reducing preliminary or tentative views to writing, a necessary step in the development of a sound and thorough opinion. Compelling production of all drafts, good and bad, would discourage parties from engaging experts to provide careful and dispassionate opinions and would instead encourage partisan and unbalanced reports. Allowing an open-ended inquiry into the differences between a final report and an earlier draft would unduly interfere with the orderly preparation of a party’s case and would run the risk of needlessly prolonging proceedings.

[72] I recognize that the wisdom of extending litigation privilege to the preparation of expert reports has been questioned by some judges: see Browne (Litigation Guardian of) v. Lavery, (2002) 2002 CanLII 49411 (ON SC), 58 O.R. (3d) 49 (S.C.), at paras. 65-71; Aviaco International Leasing Inc. v. Boeing Canada Inc., 2002 CanLII 21293, [2002] O.J. No. 3799 (S.C.), at para. 16. However, the law currently imposes no routine obligation to produce draft expert reports: Conceicao Farms Inc. v. Zeneca Corp. (2006), 2006 CanLII 31976 (ON CA), 83 O.R. (3d) 792 (C.A.), at para. 14; Mendlowitz v. Chaing, 2011 ONSC 2341 (S.C.), at paras. 20-24.

[73] It is important to note that the litigation privilege attaching to expert reports is qualified, and disclosure may be required in certain situations.

[74] The most obvious qualification is that the Rules of Civil Procedure require disclosure of the opinion of an expert witness before trial. If a party intends to call the expert as a witness at trial, rule 31.06(3) entitles the opposite party on oral discovery to “obtain disclosure of the findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined”.

[75] As well, the party who intends to call the expert witness is required to disclose the expert’s report and the other information mandated by rule 53.03(2.1). The result is that what has been called “the foundational information” for the opinion must be disclosed: Conceicao Farms, at para. 14. Bryant, Lederman and Fuerst refer to this as an “implied waiver” of privilege over the facts underlying an expert’s opinion that results from calling the expert as a witness: Alan W. Bryant, Sidney N. Lederman and Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 4th ed. (Markham: LexisNexis Canada, 2014), at para. 14.220. These authors favour restricting the implied waiver “to material relating to formulation of the expressed opinion” (at para. 14.224). They state that caution should be exercised before requiring “wide-ranging disclosure of all solicitor-expert communications and drafts of reports”, as such a practice could encourage “a general practice among solicitors of destroying drafts after they are no longer needed just to avoid the problem” (at para. 14.226).

[76] The second qualification is that, as stated in Blank, at para. 37, “litigation privilege, unlike the solicitor-client privilege, is neither absolute in scope nor permanent in duration.” Litigation privilege yields where required to meet the ends of justice, and “[i]t is not a black hole from which evidence of one’s own misconduct can never be exposed to the light of day”: Blank, at para. 44.

[77] In my view, the ends of justice do not permit litigation privilege to be used to shield improper conduct. As I have already mentioned, it is common ground on this appeal that it is wrong for counsel to interfere with an expert’s duties of independence and objectivity. Where the party seeking production of draft reports or notes of discussions between counsel and an expert can show reasonable grounds to suspect that counsel communicated with an expert witness in a manner likely to interfere with the expert witness’s duties of independence and objectivity, the court can order disclosure of such discussions. See, for example, Ebrahim v. Continental Precious Minerals Inc., 2012 ONSC 1123 (S.C.), at paras. 63-75, where the court ordered disclosure of draft reports and affidavits after an expert witness testified that he did not draft the report or affidavit containing his expert opinion and admitted that his firm had an ongoing commercial relationship with the party calling him.

[78] Absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, a party should not be allowed to demand production of draft reports or notes of interactions between counsel and an expert witness. Evidence of an hour and a half conference call plainly does not meet the threshold of constituting a factual foundation for an allegation of improper influence. In my view, the trial judge erred in law by stating that all changes in the reports of expert witnesses should be routinely documented and disclosed. She should not have ordered the production of Dr. Taylor’s drafts and notes.


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