People enter litigation when they have been unable to resolve their affairs through other less adversarial and inexpensive means, such as negotiations or mediation. Once litigation commences, the litigants expect a judge to use her wisdom and experience to assist them in settling their matter before trial, or rendering a decision after trial.
In many cases, there are issues that fall beyond the wisdom and experience of a judge. In these cases, the judge may require an expert opinion. The valuation of a pension may require an actuary. The valuation of real estate may require an appraiser. The valuation of a business may require a Chartered Business Valuator ("CBV"). The determination of a self-employed person's income for support purposes is often not based on his Income Tax Return and may also require an expert opinion from a CBV. In Family law cases, who has custody of a child and what that child’s residential schedule will be after separation, are other areas for the involvement of an expert, such as a social worker or psychologist with expertise in child development. This is especially needed where there are clinical issues in the family such as mental illness, addictions, domestic violence or relocation.
Historically, a spouse and his lawyer would identify the issues in a case and then determine what evidence was needed to support his claims. With the issues listed above, it was customary for an expert to be retained to provide an expert opinion to support the position of the spouse at trial.
The Family Law Rules established a protocol for the exchange of expert reports. Rule 23(23) provides that a "party who wants to call an expert witness at trial shall serve on all other parties a report signed by the expert and containing the information listed in subrule (25)...at least 90 days before the start of the trial." This process afforded the other spouse ample time to consider the expert opinion for the purposes of settlement or trial, or to obtain her own expert report or critique of that report.
On August 17, 2011, Rule 20.1 was introduced dealing explicitly with the expert’s duty to the court. The Rule states:
20.1(1) It is the duty of every expert who provides evidence in relation to a case under these Rules,
(a) to provide opinion evidence that is fair, objective and non-partisan;
(b) to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and
(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.
Rule 20.1(2) added an extra limitation that would prevent any expert from advocating for a client by stating “In the case of an expert engaged by or on behalf of a party, the duty in subrule (1) prevails over any obligation owed by the expert to that party.” That is, the expert’s duty is to the court, not the client or lawyer.
Moreover, Rule 20.1(10) requires that every expert report contain the following information:
1. The expert’s name, address and area of expertise;
2. The expert’s qualifications, including his or her employment and educational experiences in his or her area of expertise;
3. The instructions provided to the expert in relation to the proceeding;
4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates;
5. The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range;
6. The expert’s reasons for his or her opinion, including,
i. a description of the factual assumptions on which the opinion is based,
ii. a description of any research conducted by the expert that led him or her to form the opinion; and
iii. a list of every document relied on by the expert in forming the opinion; and
7. An acknowledgement of expert’s duty (Form 20.1) signed by the expert.
The "Acknowledgement of Expert’s Duty" form that experts are now required to sign states:
I acknowledge that it is my duty to provide evidence in relation to this proceeding as follows:
a. To provide opinion evidence that is fair, objective and non-partisan;
b. To provide opinion evidence that is related only to matters that are within my area of expertise; and
c. To provide such additional assistance as the court may reasonably require, to determine a matter in issue.
I acknowledge that the duty referred to above prevails over any obligation which I may owe to any party by whom or on whose behalf I am engaged.
This created a radical shift to the mandate and role of an expert who testifies at trial. No longer are experts permitted to be "hired guns" selling their expert testimony to lawyers and litigants. Experts are now required to be objective, even-handed and not in any way influenced by the person who paid them. Litigants are now faced with circumstances where the expert they retained and paid for could give an opinion that is contrary to their position. Lawyers are required to explain to their clients that despite the high cost of expert evidence, the expert is entirely independent and could possibly give unfavourable testimony. This shift in the role and function of experts is meant to ensure that the judge adjudicating the issue has accurate, objective and reliable assistance from a professional with the expertise and knowledge that the judge does not possess. By eliminating the battle of the "hired guns", judges could focus on the issues, the evidence and the arguments, and not need to hear competing expert opinions, relieving judges of having to accept one expert and reject the other or both experts. This shift also prompted the use of joint experts, or having the two experts "hot tub". Hot-tubbing refers to a situation where the two experts collectively consider one another's opinion, and the reasons for arriving at such a conclusion, and either eliminate their differences of opinion or identify the different factual assumptions that resulted in the disagreement.
The movement away from a one-sided expert at trial has continued to shift. In the case of Moore v. Getahun [2014] O.J. No. 135, Justice Wilson of the Ontario Superior Court of Justice rendered a decision on January 14, 2014 involving a personal injury case. In that case, the plaintiff's lawyer reviewed the expert doctor's file and discovered notes of a telephone call that took place between the defendant's lawyer and the doctor. The lawyer reviewed the doctor's draft expert report and suggested changes to it.
Justice Wilson ruled:
"For reasons that I will more fully outline, the purpose of Rule 53.03 [equivalent to Rule 20.1] is to ensure the expert witness' independence and integrity. The expert's primary duty is to assist the court. In light of this change in the role of the expert witness, I conclude that counsel's prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable. If after submitting the final expert report, counsel believes that there is need for clarification or amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel."
Given these developments, a spouse who retains an expert will need to remain at arm's length, limit his input to the expert, provide the expert with a bilateral explanation of the case and source information, and avoid any one-sided discussions with the expert. Moreover, any communication with the expert must be fully transparent to the other party.
It would seem that the era of the one-sided expert report has indeed ended. |
