5.35: Sequence of exchange of experts’ reports
5.37: Questioning experts before trial

Case Summary

The Defendant applied for an Order requiring the Plaintiff’s expert or the Plaintiff to provide the documents referred to in the expert’s report and used by the expert in preparing his report which had not been previously disclosed, and for an Order directing the Plaintiff’s expert to attend for Questioning on his report. All the information relied upon by the expert had been disclosed, except for the discussions between the expert and the principal of the Plaintiff, which were referenced in the expert report.

The Defendant argued that the Plaintiff had waived privilege over its expert’s report when it was filed and served. The Court noted that there are two lines of authority on this issue in Alberta: one line of authority holds that privilege over an expert’s report and the material the expert relied upon is not waived until the expert is called as a witness, and the other line of authority holds that privilege is waived when the expert report is served, as is required for the expert to be called at Trial pursuant to Rule 5.35. The question, therefore, was whether the Plaintiff had waived privilege over the discussions between the principal of the Plaintiff and the expert by serving the expert report on the Defendant.

The Court held that the Supreme Court of Canada’s decision in R v Stone, [1999] 2 SCR 290, stands for the principle that once a party has committed to calling an expert at Trial, privilege over the expert’s report is waived and the opposing party is entitled to the report and all foundational information. However, Dunlop J. disagreed with Feasby J.’s recent ruling in Ho v Connell, 2023 ABKB 133, that “[t]he waiver of privilege with respect to foundational information occurs when the expert report is exchanged because it is at that time when the party delivering the expert report signals to the other side its intention to rely at trial on the expert report.” Justice Dunlop held that a party is free to not call an expert at Trial whose report it previously served and that all that a party serving an expert report does is keep its options open. Accordingly, the Court found that the Plaintiff did not waive privilege over the communications merely by serving the expert report. The privilege would be waived if the expert is called at Trial, or if the Plaintiff did something that commits the Plaintiff to calling the expert as a witness at the Trial. The Defendant’s Application was therefore dismissed. Justice Dunlop also held that while the Defendant may be entitled to know what material the expert had but did not rely upon if he testifies at Trial, that information remained privileged at this stage in the proceedings.

The Court then considered the Defendant’s Application to question the Plaintiff’s expert pursuant to Rule 5.37. Rule 5.37 requires “expectational circumstances” to be shown. Justice Dunlop found that the circumstances referred to by the Defendant, namely that the case is in case management, is highly contentious, and the quantum of damages is significant, did not constitute “exceptional circumstances”, and dismissed the Application.

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