In Ontario, communications between a lawyer and the expert retained for litigation are presumptively protected by litigation privilege. The bar to lift that privilege is high. Salamaszynski v Michael Garron Hospital, 2023 ONSC 704 is a useful illustration of just how high, and a reminder that even significant credibility concerns about a defendant’s evidence will not, without more, open the door to the expert’s brief.
The decision is procedural, but it speaks to something that comes up regularly in contested medical malpractice cases: how the courts balance fairness in the litigation process against the genuine need for counsel and experts to communicate freely.
The facts
The plaintiffs were pursuing a medical malpractice action arising out of care at Michael Garron Hospital. Central to the case was the timing of the patient’s chest pain, in particular when the patient first reported it to the defendant doctor.
When defence counsel delivered the defence expert’s report, they advised the plaintiffs that “it will be [the defendant doctor’s] evidence at trial that [the patient] reported to her that the onset of his constant chest pain was at 5:00 am on July 14, 2015.” In a follow-up exchange, defence counsel further confirmed that “[the defendant doctor’s] anticipated evidence is based on her own independent recollection of the encounter with [the patient] and is not based on any note or record.”
That position was new. Seven years into the litigation, and after the defendant doctor had given evidence on examination for discovery, this independent recollection of the timing of the chest pain had not previously surfaced. On discovery, the doctor had testified that she had no independent memory of the encounter beyond what was in her notes. Her notes did not contain the specific timing now being attributed to her.
The motion
The plaintiffs moved for production of the defence’s instructing letter to the expert, together with the emails and memoranda recording the conversations between defence counsel and the expert about this evidence.
The plaintiffs’ argument was straightforward. The defendant’s late-emerging recollection contradicted both her notes and her sworn discovery evidence. The new account was, on their submission, so implausible that defence counsel should be required to disclose what they had told the expert about it. In other words, if the expert was being asked to assume facts the defendant herself had previously denied remembering, the plaintiffs were entitled to see how the question was framed.
The decision
Associate Justice Jolley dismissed the motion.
In doing so, she expressly acknowledged the credibility tension. A defendant’s apparent recovery of memory seven years into the litigation, after sworn evidence to the contrary, and on a point not reflected in her notes, raises a real credibility issue that will be live at trial.
But credibility concerns at trial are not the same as evidence of improper influence on an expert. The framework for piercing litigation privilege over solicitor-expert communications, established by the Court of Appeal in Moore v Getahun, 2015 ONCA 55, requires more than suspicion or speculation. There must be a factual foundation that supports a reasonable basis to believe counsel improperly influenced the expert.
On the record before her, Associate Justice Jolley found no such foundation. The plaintiffs had identified a credibility problem with the defendant. They had not identified evidence that defence counsel had improperly shaped the expert’s opinion. Litigation privilege accordingly continued to attach to the communications, and production was refused.
Takeaways
For plaintiffs’ counsel. A shifting or implausible defence narrative is not, on its own, enough to lift litigation privilege over expert communications. The credibility argument lives at trial, in cross-examination of the defendant and in argument to the trier of fact. It does not, without more, open the door to the expert’s brief.
For defence counsel. The protection afforded to expert briefing remains robust, but the decision is also a reminder that obvious credibility issues do not disappear because the privilege holds. A late change in a defendant’s evidence will be tested in front of the trial judge, and the gap between sworn discovery testimony and the assumptions handed to the expert will be visible there.
For clients. This is the kind of procedural battle that consumes time, money, and energy in a medical malpractice case, often with no change to the ultimate trajectory. The substantive issues, including credibility, are usually resolved at trial, not in motions like this one.
For more on how medical malpractice litigation actually unfolds in Ontario, including the role of expert evidence and realistic timelines, see Suing for Medical Malpractice in Ontario: What You Need to Know.
Decision Date: January 27, 2023
Jurisdiction: Superior Court of Justice (Ontario)
Citation: Salamaszynski v Michael Garron Hospital, 2023 ONSC 704 (CanLII)
