Expert evidence in construction matters

October 1, 2011

Legal_opener[1]By 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:

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:

– 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.

The scope of production
Another important issue concerning the duty of the expert is the extent to which draft reports, notes, and other materials relied on in forming the opinion must be produced during the judicial process.

The general rule is documents—including expert reports, which are prepared with a dominant purpose of litigation (or, as it is more commonly referred, ‘in anticipation of litigation’)—are protected by litigation privilege. (General Accident Assurance Co. v. Chrusz (1999), 45 O.R. (3d) 321 [C.A.]).

The Rules also specifically provide a party is not required to produce the report, findings, opinions, or conclusions of an expert in litigation whose evidence is not being called at trial.

Despite protections afforded by litigation privilege, draft expert report production remains  uncertain in Canadian jurisprudence. In Ontario, decisions with respect to draft report production tend to be divided. Despite the most frequently cited case on this issue having rejected the production of the draft expert reports in question, (Bell Canada v. Olympia & York Developments Ltd. (1989), 68 OR (2d) 103 [H.C.J.]).

other decisions have left the door open. For example, in the 2002 decision in Aviaco International Leasing Inc. v. Boeing Canada Inc., the court concluded draft reports form part of the expert’s preliminary findings, opinions, and conclusions. (2002), CarswellOnt 3266 [S.C.J.]).

The court found it may be appropriate, in certain circumstances, to consider whether the expert changed opinion from draft to draft and, if so, why.

More recently, however, in Conceicao Farms Inc. v. Zeneca Corp., a full panel of the Ontario Court of Appeal reversed the lower court’s ruling and concluded expert drafts were not to be produced. (2006), 83 O.R. (3d) 792 [C.A.]).

The Court of Appeal narrowed the scope of discovery by defining the extent of production as including:

Ontario courts are now struggling to determine how far beyond the four Conceicao factors the right to obtain foundational information extends. To date, a final consensus has yet to be reached. In recent decisions, the courts have ordered production of letters of instruction as well as copies of all documents used by experts to formulate their opinions. The entire expert file and materials other than “documents” have, however, remained privileged.

Related to draft reports is the meaning of “findings, opinions, and conclusions,” which are within the scope of oral discovery of an expert being called at trial. (Rules, r. 31.06).

If such materials were used to formulate the expert’s opinion, courts have held findings  include:

‘Findings’ do not appear to include the expert’s personal notes.

Given the unsettled nature of the Ontario case law, it is very possible draft reports—as well as all documents relied on by experts in formulating opinions—may be ordered to be produced. This possibility must remain top of mind before and during the drafting process. Experts and counsel alike must also remember the involvement of counsel in the drafting process calls into question the independence of the expert and will likely result in production. As such, it is good practice to discuss the issue of draft reports with counsel before beginning the process.

What lies ahead
In light of the recent changes to the Ontario Rules of Civil Procedure, as well as the courts becoming stricter about the qualification and independence of experts, it is reasonable to assume further reform in the area of expert opinions and testimony is imminent. Indeed, recent changes to the Federal Court Rules aimed at “speeding up lengthy and complicated intellectual property trials now allow judges to force lawyers to serve up their experts in a hot tub.” (J. Gray’s article, “Why Judges Like Hot-tubbing,” appeared in the April 20, 2011 edition of The Globe and Mail).

Hot tubbing, or ‘concurrent evidence,’ allows experts to testify in court together on a panel rather than as individual witnesses. The practice is already common in Australia, with other jurisdictions not far behind. In fact, reforms in Australia and the United Kingdom now “require parties to agree upon a single jointly appointed expert, impose obligations on opposing experts to consult and to produce a single joint report, or require an order of the court before any expert evidence may be adduced.”

Ontario seems to be moving in a similar direction. Indeed, amendments to the Rules now allow for pretrial meetings between opposing sides’ experts such that issues of debate can be identified and discussed. The hope is these types of expert meetings will result in the narrowing of issues before trial as well as a reduction in costs.

While the courts have not taken a definitive stance with respect to the implementation of hot tubbing at trial, there is certainly an overall appreciation for a system that maximizes efficiency and minimizes costs. This is particularly true in the context of expert evidence resulting in the role of the expert continuously evolving. It is therefore essential those called on to provide expert opinions remain informed and cognizant of the current duties upon them—as well as the changes that may lie ahead.

Jeffrey A. Armel is a senior member and partner of the construction law group at Goldman Sloan Nash & Haber LLP (GSNH), acting as the firm’s litigation mentor for its articling student and junior associates. He advises clients in construction law, dealing with litigation, alternative dispute resolution (ADR), and contract preparation. Armel is a member of the executive of the Construction Law Section of the Ontario Bar Association. He can be contacted via e-mail at armel@gsnh.com.

Jessica Caplan practises construction litigation at GSNH. She has appeared at all levels of the Ontario courts, including as counsel before the Ontario Court of Appeal. She can be reached at caplan@gsnh.com.

Endnotes:
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