Expert evidence in construction matters

Legal_openerBy Jeffrey A. Armel and Jessica Caplan
With the continued evolution of the construction world, coupled with the increasingly complex nature of building projects, disputes between the various parties will inevitably arise. While the parties may resort to litigation or some other form of alternative dispute resolution (ADR), an expert is frequently called on to assist the trier of fact. This expert’s role is to assist the decision-maker in understanding and applying sophisticated and technical aspects of the disputed project.

From the initial tendering phase to the delay claims brought at the end of a project, there are many areas and disciplines where expert evidence can—and ought to—be introduced. Moreover, with new and innovative technological and engineering services often becoming common, it is essential both the parties and the expert understand his or her roles and obligations to the court or alternative trier of fact.

With recent amendments to the Ontario Rules of Civil Procedure (hereafter referred to as the Rules) and developments in case law, experts have an increasingly important job of ensuring the opinion being provided is in compliance with their obligations and maintains credibility with the trier of fact.

Amendments to the rules of civil procedure
Effective January 2010, important changes to the Rules as they relate to experts came to fruition. The most significant reforms include an increased emphasis on independence and additions to the information required in expert reports.

Qualifying the expert
The test applied by the court when qualifying an expert remains the same, with the following factors being among those considered:

  • relevance;
  • necessity in assisting the trier of fact;
  • absence of any exclusionary rule; and
  • a properly qualified expert.

Information included in the report
The old Rules provided that an expert’s report had to include his/her name, address, qualifications, and the substance of his/her proposed testimony. Pursuant to the recent amendments, Rule 53.03(2.1) now requires the following information be included in an expert’s report:

  • his/her name, address, and area of expertise;
  • qualifications, employment, and educational experiences;
  • instructions provided to the expert;
  • nature of the opinion being sought and the issues in the proceedings to which the opinion relates;
  • opinion respecting each issue and, where there is a range of opinions given, a summary of that span and the reasons for the expert’s own opinion within it;
  • reasons for his or her opinion, including,

– description of the factual assumptions on which the opinion is based;
– description of any research conducted by the expert that led him or her to form the opinion; and
– list of every document, if any, relied on by the expert in forming the opinion; and
– acknowledgement of expert’s duty (Form 53) signed by him or her. (O. Reg. 438/08, s. 48).

Independence not advocacy
As articulated by the Ontario Superior Court in Alfana (Trustees of) v. Piersanti:

If it becomes apparent that an expert has adhered to and promoted the theory of the base being advocated by either Plaintiffs or Defendants, he or she becomes less reliable and is not an expert in the way that the role has been defined in the recent and well known jurisprudence. (2009), 78 C.P.C. (6th) 88 ([Ont. S.C.J.]).

The requirement the expert maintain neutrality and independence is solidified in Rule 53.03 and Form 53 of the amended Rules. Specifically, Rule 53.03 provides that an expert’s duty includes providing opinion evidence that is fair, objective, and non-partisan. This supersedes any obligations the expert might owe to the party by whom, or on whose behalf, he or she has been engaged. (R.R.O. 1990, Reg. 194 (“Rules”) at r. 53.03; A. Heal, “The Independence of the Expert: Who Let the Dogs Out?” Ontario Bar Association, Thursday October 7, 2010 at p. 6).

Additionally, Form 53 requires an expert who provides a report to the court to acknowledge in writing his/her duty to give opinion evidence that is fair, unbiased, non-partisan, and related only to areas within their expertise. (Form 53 of the Rules of Civil Procedure).

It is therefore essential an expert not appear as an advocate for the party who retained him or her. Expert reports should acknowledge multiple sources of information, including all facts, sources, and assumptions relied on in forming the opinion. Experts must also clearly set out issues or questions falling outside their area of expertise and should never omit material facts that could detract from the opinion being given. (Ontario (Superintendent) v. Norton (2007) C.E.B. & P.G.R. 8237 (Ont. C.J.) at para. 62).

Failing to adhere to these guidelines could result in an expert’s report being rejected on the basis its substance or intention is found to be “advocacy dressed up as expert opinion.” (Dulong v. Merrill Lynch Canada Inc. (2006), 80 O.R. (3d) 378 at para. 30 [S.C.J.]).

Courts may also be inclined to probe further into the independence of an expert if a party attempts to use the evidence of an ‘in-house expert,’ as demonstrated by R. v. Inco:

The independence required of experts may be the subject of special inquiry, particularly where an “in-house” expert is proffered by one of the parties. The inquiry requires that the trial judge, on a voir dire, look beyond the witness’ employment relationship or retainer and consider the basis on which the opinion is proffered. Unless the terms of the retainer make the witness an obvious “co-venturer” with the party, as in the case where the witness worked on a contingency fee arrangement which was dependant on the outcome of the case, the trial judge must examine the actual opinion evidence to be offered in a voir dire. The proposed expert’s independence can be tested the usual way, by cross-examination on his or her assumptions, research, and completeness. The trial judge can then assess whether the expert has assumed the role of advocate. (R. v. Inco (2006), 80 O.R. (3d) 594 (S.C.J.). at para. 142).

In his paper, “The Independence of the Expert: Who Let the Dogs Out?,” Andrew Heal sets out various steps to reduce intentional or unintentional bias on the part of the expert. Some examples include:

  1. The expert must not accept an engagement where there are any doubts as to his/her actual and perceived objectivity, independence, and ability to maintain objectivity as the engagement progresses.
  2. Experts must ensure they view evidence being gathered from both parities’ perspective. What else could a document mean? What are possible motivations for someone to have told the expert something in an interview? Who could be spoken with to confirm or dispel the key assumptions to the theory of what may have occurred?
  3. The draft report should be reviewed by another professional in the expert’s office (or equivalent) on the basis he or she is acting for the opposing party.
  4. The expert must review his or her stated and implicit assumptions to identify alternative assumptions and consider which are more plausible/reasonable.
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