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The Ontario Court of Appeal recently decided in Stewart v. Humber River Regional Hospital, 2009 ONCA 350, that: …it is appropriate to apply the MacDonald Estate approach to assess whether, when an expert has received solicitor-client information from one party and then is retained by opposing counsel, opposing counsel has acquired that information. The court should infer that confidential information was imparted unless opposing counsel satisfies the court that no such information passed. The court must ask itself whether the reasonably informed member of the public would be so satisfied. This will be a heavy burden for opposing counsel to discharge. In this case, plaintiff counsel acting on two parallel claims against the defendant hospital retained an expert for the defence on one of those claims who had been examined for discovery in the other claim while still in the employ of the hospital. The court found that the expert was in possession of information protected by solicitor-client privilege, inferred that it was imparted to the plaintiff’s counsel, and determined that the plaintiff counsel did not discharge the onus of establishing that no confidential information was passed from the expert to counsel. The Court of Appeal upheld the lower court decision ordering the removal of counsel. The Canadian Lawyers Insurance Association provides loss prevention information solely for the benefit of CLIA insured lawyers. The content and links provided in Loss Prevention eBytes are intended as resources to qualified lawyers who should exercise due care and their professional judgment in adapting or making use of any content.
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