Providing surveillance to defence medical expert constitutes waiver of privilege over it

In Aherne v. Chang, 2011 ONSC 2067 (CanLII), Master Donald E. Short considered the question of whether sending privileged surveillance videos to a defence medical expert in a personal injury action results in the loss of privilege on the surveillance. He concluded that it does. (The Master described this decision as “the third instalment of a trilogy of decisions by me dealing with the duties and responsibilities of expert witnesses appointed by counsel for defendants, with respect to the appropriate manner of conducting what historically have been referred to as ‘defence medicals’ under the ‘new’ Rules.” The other two decisions are Girao v. Cunningham, [2010] O.J. No. 3642; ONSC 4607 and Bakalenikov v. Semkiw, [2010] O.J. No. 3877; 2010 ONSC 4928.

This was a medical malpractice case. At the time of the defendant’s examination for discovery, no surveillance had been undertaken. However, his counsel refused to answer questions about disclosure of surveillance that might be undertaken in the future. A specific question arose as to the effect of providing such surveillance to an expert retained to conduct a defence medical examination.

The Master prefaced his reasons with a discussion of the role of masters in interpreting the Rules and he said that “when opportunities for giving an indication of direction to the bar present themselves, they ought to be taken”.

Interestingly, he began his analysis by saying that “[a]s of January 1, 2010, entirely new obligations are placed upon all experts. [Emphasis added] In particular, it is made explicit that their duty is to the court, rather than to any party or their insurer (or any otherwise financially responsible party).” He referred to the decision of Moore J. in Beasley v. Barrand. In our post yesterday, about the decision of Madam Justice MacLeod-Beliveau in McNeill v. Filthaut, we noted that that judge had come to the opposite conclusion. She held that the new obligations, which are set out in Rule 53.03, do not apply to all experts. (The McNeill case turned largely on the interpretation to be given to the phrase, “expert engaged by or on behalf of a party in preparation for contemplated or pending litigation”.)

The Master went on to discuss, at some length, the obligations of expert witnesses. Although he felt that experts are required to be objective and unbiased, he thought that these qualities were mandatory even apart from the wording of Rule 53.03. (It does appear though, that throughout his reasons, Master Short had in mind only experts who had been retained by a party to the litigation.)

The Master moved from there to a discussion of the amendments to the Rules and said that “[t]he Court now expects and relies upon frank and unbiased opinions from its experts” and that “[t]his is a major sea change which requires practical improvements to past opaque processes”.

After considering some caselaw, Master Short came to the conclusion that an expert retained to conduct a defence medical examination “owes his or her primary duty to the court”. He held that if the defendant were to conduct surveillance on the plaintiff and if that surveillance were to be provided to an expert retained to conduct a defence medical examination under Rule 37, then privilege on the surveillance will have been waived and the surveillance should be sent to counsel for the plaintiff at the same time that it is given to the defence medical examiner.

Finally, the Master set out six principles that he had extracted from his analysis of the caselaw and the amendments to the Rules:

The following principles emerge from the rules and previous jurisprudence:

(a) 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;

(b) an opposing party is entitled to the facts on which the expert’s opinion is based;

(c) 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;

(d) 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;

(e) by sending a defence medical assessor portions of surveillance, privilege over the full surveillance video or all photographs is waived.

To these I now add the presumption that in the case of a defence medical examination the privilege is lost at the point the material is sent to an expert retained for the purpose of a Rule 37 examination.

Of course, the question raised by the McNeill decision of Justice MacLeod-Beliveau did not arise here. But it easily could in another case. If counsel were to provide a surveillance video to an expert who has not been retained to conduct a Rule 37 examination and in fact, has not even been retained by or on behalf of a party to the litigation (such as an accident benefits examiner, for example), would there still be the loss of privilege that Master Short thought would occur?




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