Ontario Courts Are Engaged In A Rigorous Debate About
The Scope Of The Production Of Documents In An Expert's File
In Thermapan Structural Insulated Panels Inc. v. Ottawa
(City), 2014 ONSC 2365, the applicant sought an order of the
Court requiring the City of Ottawa to issue a building permit for a
construction project. Ottawa had rejected the initial application
for the building permit. The applicant, Thermapan, sought
production of the entire file kept by Ottawa's expert engineer
during the litigation.
Thermapan argued that by serving the expert's affidavit on
Thermapan, Ottawa had waived any litigation or solicitor-andclient
privilege in the expert's file and accordingly, the
expert's file ought to be produced. In so doing, Thermapan
relied on a decision of Justice Wilson of the Ontario Superior
Court, Moore v. Getahun, 2014 ONSC 237, in which Justice
Wilson held that recent changes to the Rules of Civil Procedure
governing experts required experts to be neutral and non-partisan;
according to Justice Wilson, the practice of lawyers reviewing
expert reports with the expert "should stop". Thermapan
argued that in view of the Court's decision in Moore, the Court
should automatically require the full disclosure of the
expert's entire file as a matter of course.
Master Muir rejected Thermapan's argument and held that
foundational information provided to Ottawa's expert, including
the instructions to Ottawa's expert and invoices rendered by
the lawyers to Ottawa, had or would have to be produced. However,
in the Court's view, "nothing further" was required
to be disclosed to Thermapan.
The Court held that the automatic production of the expert's
file was not required in this case. Master Muir distinguished the
Moore decision on the basis that, in the Moore case, there was an
admission by the expert witness that he had reviewed the draft
report with counsel and made "corrections" to his report
as a result. In Thermapan, Master Muir concluded that
there was no evidence of any concern about the conduct of
Ottawa's expert and there was no evidence that Ottawa's
expert was anything other than independent.
The Moore decision is currently under appeal and, in view of
Master Muir's decision in Thermapan, will be watched
closely by the Ontario Bar.
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