Recent Developments in the Law of Expert Witnesses
F. Philip Carpenter
Introduction
Expert opinion evidence is central to many construction disputes[1]. It is necessary to assist the court or jury in making correct conclusions on a subject not normally within the court’s expertise. The goal of expert opinion evidence is sometimes said “to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate.”[2]
For example, an engineer may be called to provide her professional opinion as to the causes of a roof collapse. That collapse may impede the progress of other contractors or sub-trades, and lead to defaults on their contracts. Defaults may lead to further delays. Uncured defaults will lead to unfinished work. Unfinished work may need to be completed by a replacement contractor hired by a surety company. A quantity surveyor may be called upon to quantify the work completed by the defaulting contractor (a “fact” or “participant expert” witness). Or, a quantity surveyor may be called as an independent expert witness, after the fact, to give their independent expert opinion as to what repairs should cost.
This article reviews the duties of testifying experts and some recent case law. The good news: not much has changed and objectivity remains key for testifying experts.
Background
The first principle of the law of evidence is that generally all evidence relevant to the material issues in dispute is admissible.[3] Courts usually admit evidence based on the testimony of witnesses who testify to what they observed through their senses.[4] Opinion –the inferences to be drawn from a witness’ observations– is generally inadmissible, because it is thought to be unhelpful and may be misleading.[5] For example, a foreman who sees a partial roof collapse during construction has relevant evidence to give with respect to what he saw. His opinion as to the cause of the roof’s collapse may be misinformed and limited to his narrow view of events and therefore unhelpful.
An exception to the rule excluding opinion evidence is the rule permitting expert opinions on matters requiring specialized knowledge.[6] Using the roof collapse example, an engineer who surveys all the available evidence, may be able to apply her specialized skill and knowledge to determine the probable causes of the collapse. Similarly a quantity surveyor may be able to determine whether the work done when the roof collapsed is 75% complete and delayed the rest of the project, when to a layperson it appears to be only 25% complete.
Rules Of Civil Procedure
Expert witnesses retained to testify by parties have a special duty to the court to provide independent assistance to the court through the delivery of an objective unbiased opinion.[7] Most provinces in Canada provide guidance on this duty in their rules of court. These rules are generally a restatement or codification of the duty of expert witnesses to give opinion evidence that is fair, objective and non-partisan.[8]
In Ontario, the Rules of Civil Procedure, Rule 4.1.01 requires the following duties from expert witnesses:
- Every expert engaged by a party is to provide evidence that is “fair, objective and non-partisan”.
- Experts must provide opinion evidence that is only within the expert’s area of expertise.
- Experts must provide such additional assistance as the court may reasonable require.[9]
These duties owed to the court by the expert prevail over any obligation owed by the expert to the party who engages them.[10]
The Ontario Rules also set out specific criteria that must be in the expert’s report, including:
- The expert’s name, address and area of expertise.
- The expert’s qualifications, employment and educational experiences in his or her area of expertise.
- The instructions provided to the expert.
- The nature of the opinion being sought and each issue in the proceeding to which it relates.
- The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and reasons for the expert’s opinion being within that range.
- The expert’s reasons for their opinion, including the expert’s assumptions, research conducted, and all documents relied upon in forming the expert opinion.
- An acknowledgment of expert’s duties in Rule 4.1.01, signed by the expert.[11]
Rules 53.03 and 4.1.01 of the Ontario Rules were enacted in 2010 after a review of the civil justice system known as the “Osborne Report”. The Osborne Report cautioned that too many experts had become or appeared to be “hired guns” whose opinions were subject to “subtle or overt pressures”.[12]
The concerns embodied in the Osborne Report can be seen in the rules of court in other provinces such as Nova Scotia.[13] Nova Scotia goes so far as to require the expert to point out in the expert report anything that could reasonably lead to a different conclusion.[14]
While the duty of objective expert assistance [nextpage]to the court is uniform, the particular requirements, and rules for reports may vary from province to province. Ensuring a properly formatted and admissible report is one of the reasons experts and the lawyers retaining them must discuss its contents. This is the subject of the Moore decision.
Recent Canadian Case Law
In 2015 three major cases came out of Ontario and Nova Scotia, (White Burgess, Moore, and Westeroff) that dealt with experts’ duties and their requisite degree of impartiality and independence.[15]
In White Burgess, an accountancy firm was retained to investigate the auditors of a purchasing firm. The purchasing firm then hired a partner in the investigating accountancy firm as their expert witness when they sued their auditors in negligence. The auditors moved to have the purchasing firm’s expert report struck because it was not impartial nor appeared to be impartial. The auditors were initially successful and the report was ruled inadmissible because it appeared to lack independence.[16]
The Nova Scotia Court of Appeal disagreed, and held that the appearance of partiality primarily goes to weight and not whether the expert opinion can be heard, subject to a residual discretion held by the trial judge to exclude the evidence where the expert is, in fact, biased.[17]
The Supreme Court of Canada split the difference and held that the degree of independence and impartiality can be considered at three stages: (1) the threshold inquiry on whether the expert is a “properly qualified expert”; (2) the gatekeeping discretion held by the trial judge; and (3) when the judge or jury weighs the expert evidence in conjunction with all the other evidence.[18]
Of these, the first and third stage are the most interesting. At the first stage, if an expert is “unable or unwilling to fulfill” the expert’s duties of independent, objective assistance to the court, they should not be considered a “properly qualified expert” and their opinions should be ruled inadmissible and not heard.[19] At the third stage, the expert opinion is admitted and heard. A judge or jury deciding the facts can then weigh the degree of bias, if any, in assessing the reliability and credibility of the expert opinion.
In White Burgess, the court found that merely because one professional firm investigates another prior to litigation, and finds what it suspects to be professional negligence, this does not automatically disqualify it from providing an independent expert opinion during litigation, even if some of the investigatory work product is incorporated into the expert opinion.[20]
That said, an ongoing commercial relationship, in combination with an admission that the expert did not draft his own report or affidavit containing the expert opinion was enough to warrant disclosure of draft reports and affidavits in Ebrahim v Continental Precious Minerals Inc.[21] This was discussed in Moore.
In overturning the lower court judge in Moore, the Ontario Court of Appeal confirmed the ability of experts and the lawyers who retain them to discuss and confer in the preparation of expert reports and held that drafts do not need to be produced without good reason.
The court in Moore noted “expert witnesses need the assistance of lawyers in framing their reports in a way that is comprehensible and responsive to the pertinent legal issues in a case.”[22] While the iterative process of generating a responsive expert opinion risks a loss of objectivity on the part of the expert,[23] safeguards exist to guard against improper influence by the lawyer, including the ethical standards of professional bodies governing the experts and lawyer, and the adversarial process of cross-examination.[24]
Moore confirmed that an independent expert report, not being relied upon by a party, does not need to be disclosed.[25] Further, there is no rule requiring the production of an expert’s draft reports.[26] Some portions of an expert’s file, such as the underlying facts, test results, and measurements may be producible to the opposing side, especially if they wish to have their own expert test the other expert’s findings. However, where there are reasonable grounds to believe a lawyer communicated with an expert in a manner that likely interferes with the expert’s duties to the court, a court can order disclosure of the discussions, notes, or draft reports relating to such improper communications.[27]
In Westerhof the court concluded that a traditional “fact” witness who observes the events in dispute, but also forms a professional opinion based on his or her special skills, knowledge or training while observing events, can give opinion evidence.[28] These witnesses are “participant experts” such as doctors, engineers, and other professionals who form professional opinions in relation to events in dispute because they participate in or observe those events. These participant experts do not have to comply with rules such as Rule 53.03 in Ontario that requires they prepare a report.[29]
The rules of court relating to experts are designed to limit the “hired gun” nature of expert opinion evidence in civil litigation, which has a tendency to produce biased expert opinions despite safeguards.[30] These concerns are attenuated where the expert opinions are developed outside the litigation in furtherance of their professional obligations.
For a quantity surveyor, professional ethics dictate that, in any position, including “while serving as a witness before a court, commission, or other tribunal” they are not to express “opinions on relevant matters that are not founded on adequate knowledge and honest conviction.”[31] Thus regardless of the Westerhof decision, whether a quantity surveyor is acting as a “participant expert” or as party’s expert witness, a quantity surveyor is obliged to express opinions honestly and with due diligence.
Discussion & Conclusion
Every witness before a court or tribunal has an obligation to be honest when giving evidence. Experts are entitled to give their expert opinion when called to testify. When hired to do so, experts must remember that their overriding duty is to assist the court by providing their objective, non-partisan opinion.
After Moore it is clear in Ontario that independent experts can consult with the lawyers who hire them when drafting an expert report. Such consultations must not impede upon the expert’s freedom to provide an objective, non-partisan opinion. If there is some indication of improper communication between lawyer and expert, the draft reports and other materials may become producible to the opposing side.[32]
The goal as highlighted in White Burgess and Moore is to prepare a report that is responsive to the issues and assists the court in interpreting the evidence. If there are sufficient concerns about the partisanship of the expert, the opinion may not be heard at all and may lose its credibility if it is. For experts, objectivity and independence is king.