February 2013
Construction Law Section
The “Hired Guns” have been silenced:
Courts cracking down on the Admissibility of Expert Reports
By Sharon Vogel1*
Construction trials often involve a “battle of the experts” on issues such as causation in relation to
construction defects and quantification of damages, including delay damages. A strong expert report can
be a key element of a successful construction claim or defence. However, experts walk a fine line
between providing a strong opinion that will be relied upon by a trial judge in reaching his or her findings
and being an advocate. This sometimes difficult distinction has been a focus of attention by Ontario
courts, particularly since 2010 when Rule 4.1.01 was introduced into the Rules of Civil Procedure. This
Rule provides as follows:
DUTY OF EXPERT
4.1.01 (1) It is the duty of every expert engaged by or on behalf of
a party to provide evidence in relation to a proceeding under these rules,
(a) to provide opinion evidence that is fair, objective and nonpartisan;
(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.
Duty Prevails
(2) The duty in subrule (1) prevails over any obligation owed by
the expert to the party by whom or on whose behalf he or she is engaged.
[Emphasis added]
The case law which has involved a consideration of this Rule suggests that practices such as the review of
an expert report by counsel and the modification of the report based on counsel’s suggested changes is a
risky endeavor.
For example, the release of the Ottawa (City) v. TKS Holdings Inc.2 decision in December 2011 provides
some insight in gauging how the new rule will be applied by the court. In this case, following the collapse
of a building, an engineer was retained to provide an expert report on the appropriateness of the actions
1
Sharon Vogel is a partner in the Construction, Engineering, Surety, and Fidelity Group at Borden Ladner Gervais
LLP. She can be contacted at [email protected]. The author gratefully acknowledges the assistance of Jonathan
Asselstine, a student at BLG in the research and preparation of this article.
2
2011 ONSC 7633.
2
taken by the City of Ottawa. Justice Beaudoin noted as follows with respect to a change made to the
expert’s report following review by counsel:
[78] There are additional problems with the reliability of Drysdale's
report. He admitted changing the language in a critical sentence
describing the City's actions. In discussing the involvement of AAR, he
first said: "No criticism of AAR is intended: their actions and
recommendations were predictable given their employment by the City
and their exposure to liability." In cross-examination, he admitted that
his report was changed in response to a comment by the owner's
solicitors. The same sentence previously appeared in an earlier draft as
follows: "No criticism of AAR is intended. Their actions and
recommendations were logical and predictable, given their employment
by the City and their exposure to liability" (Emphasis added).
[79] Counsel attempted to dismiss the editing as being of no
consequence, but why make the change if it did not matter? In my view,
the removal of the word, "logical" changes the meaning of the sentence,
and the use of only the word "predictable" tends to put AAR's actions in
a more partisan and dismissive light. The original use of the word
"logical" lends support to the CBO's decision as being reasonable and
based on objective advice. It is ironic that Drysdale’s deletion of that
word now gives a more partisan flavour to his report.
The removal of a couple of words on the request of counsel caused the court to question the impartiality
of the expert report.3 Although other factors were considered in this decision, this case is indicative of an
increasingly stricter approach being applied by the courts when addressing communications between
experts and counsel.
Counsel must also be vigilant in monitoring how clients interact with experts. Unguarded communication
directly between clients and experts may also convince a court that an expert is not impartial. In Alfano v.
Piersanti4 an expert report was deemed inadmissible because there was evidence that the expert had been
“coached” by the client through email communication. Justice O’Connor addressed his concern about
communications of this nature at paragraphs 117-118:
The trial judge reviewed the reports. She also had the benefit of hearing
Mr. Anson-Cartwright testify in the voir dire and of reviewing a series of
emails between Mr. Piersanti and Mr. Anson-Cartwright that related to
the preparation of Mr. Anson-Cartwright’s first [expert] report. I note
that in exchanging emails, Mr Piersanti was not acting as a lawyer. He
was a party and was represented by counsel.
The emails reveal a pattern of Mr. Anson-Cartwright attempting to craft
his report to achieve Mr. Piersanti’s objectives in the litigation. Each
draft of Mr. Anson-Cartwright’s report was delivered to Mr. Piersanti for
review, revision and approval.
3
Note: this was not the sole reason for dismissing Mr. Drysdale’s report. His report also did not satisfy all
requirements in Rule 53.03(2.1). Acknowledgement of expert’s duty (Form 53) signed by the expert was missing.
(see paragraph 76-77)
4
2012 ONCA 297.
3
Thus, where an expert is an advocate and is not impartial or the court is convinced that the report has been
modified or tailored to further a party’s agenda, the report will be excluded. Counsel should therefore be
cautious when dealing with experts not to guide or lead the expert’s findings or opinions.
*Sharon Vogel Borden Ladner Gervais LLP