Evaluating the strength of a plaintiff's claim just got a
bit more complicated. Following a new Superior Court decision,
the common practice of retaining an expert just to advise on the
merits of the case has been put under more scrutiny, and a
manufacturer and its counsel will have to be more cautious in
sharing information with their experts – even if those
experts will never see the inside of a courtroom. In Andereason
v. The Corporation of the City of Thunder Bay
("Andereason"), Justice D.C. Shaw was
asked to rule on the extent of expert data that must be disclosed
to a plaintiff before the defendant has decided whether or
not to call that expert as a witness at trial. The defendant
in this case had served the expert's report on the plaintiff,
but had not yet decided whether that expert would give evidence at
trial. The plaintiff sought production of the underlying data
the expert used to generate her report, as well as the expert's
The Ontario Rules of Civil Procedure allow for
discovery of the "findings, opinions and conclusions" of
an expert unless:
(a) they were made in preparation for contemplated or pending
(b) the party undertakes not to call the expert as a witness at
The Rule makes no mention of data provided to the
expert. The question before the Court was where to draw the
line between a litigation-privileged report and file, which the
Rule protects, and the potentially unprotected foundational
evidence from which the expert drew her conclusions. In this
case, some degree of litigation privilege had already been waived
since the report had been served, but the Court's ruling as to
the foundational data did not hinge on that fact.
Upon reviewing the caselaw, the Court came to two major
First, the Court adopted the following principles as set out by
Master Short in Aherne v. Chang
1) If information is sent to an expert,
then the same information should be sent to the opposing party to
allow that party to test the expert's opinion.
2) An opposing party is entitled to the
facts on which the expert's opinion is based.
3) So long as an expert read a document sent
to him or her, then that document was considered, such that it is a
finding that must be produced.
4) The privilege claimed over a document sent
to an expert is waived at the time that it was decided to rely on
that expert's opinion or in circumstances where privilege is
waived over the report, even if the waiver was inadvertent.
5) By sending a defence medical assessor
portions of surveillance, privilege over the full surveillance
video or all photographs is waived.
The case of Aherne, however, concerned experts that
were definitely going to provide evidence – either
as experts in court or under the Rules concerning defence medical
In Andreason, the Court took a step further, finding
that foundational information underlying an expert's report
must be provided regardless of whether the expert will
testify or not.
Product manufacturers and their counsel ought to be cognizant of
this development, as it complicates the practice of hiring an
expert to determine the strength of a case. The Court has now
ruled that whatever information is available to one party for the
purposes of seeking expert advice, must also be provided to the
On the one hand, this strikes a blow for trial fairness by
ensuring that this information, which is relevant to the resolution
of the claim, is distributed to both sides and that their dispute
resolution process is transparent. Settlement will be easier
and more fair, and cross-examinations more efficient, by
eliminating information asymmetry.
On the other hand, it is now incumbent upon manufacturers and
their counsel to think twice before retaining an expert purely to
advise them about the scope of their exposure or the merits of
their case. They must be particularly cautious not to provide
any proprietary or confidential background information to such an
expert unless it is:
(a) necessary for her to arrive at her conclusion; and
(b) sufficiently relevant and proportional to the case that it
will have to be disclosed in any event.
Key Takeaway Principle:
As the court system continues to progress towards a more open
and transparent environment in terms of expert witnesses, the
Andreason case marks a milestone after which all
defendants have to assume that anything passing before the eyes of
an expert – any expert, retained for any
reason – could well pass before the eyes of the
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The recent decision of the Ontario Court of Appeal in BMW Financial Services Canada, a Division of BMW Canada Inc. v. McLean provides some useful insight into the relationship between automobile dealers and the financing arms of the manufacturers for whom those dealers are franchisees.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).