City brought motion for production of files of all experts whom plaintiffs proposed to testify on liability plus file of life care planner whose evidence would centre on future care costs. Plaintiffs were willing to produce files on condition that city be required to do same. City agreed to do so with exception of its life care planner because it was uncertain as to whether it would call her as witness. Plaintiff brought motion for production of file of city’s life planner. Motion dismissed with respect to entire file of city’s life planner. Entire file did not need to be produced, but fundamental information underlying report of city’s life planner was to be produced whether or not she would testify. Disclosure of foundational information underlying expert’s report was not dependent on whether expert would testify. City did not give undertaking that it would not call its life planner as witness and served her report on plaintiffs. Service of report constituted waiver of litigation privilege. Even if city wished to give undertaking that it was not going to call its life planner as witness, it was too late because report was served and litigation privilege waived.
Andreason v. Thunder Bay (City) (Jan. 30, 2014, Ont. S.C.J., D.C. Shaw J., File No. Thunder Bay CV-09-0044) 237 A.C.W.S. (3d) 52.