Expert Witness Viewpoint

Transcription

1 Expert Witness Viewpoint Presented at the Ontario Property Tax Summit-2016 By: Jeff Grad, President Equitable Value Inc. May 16, 2016

2 Expert Witness Viewpoint: 3 recent relevant court/tribunal decisions Jeff Grad Equitable Value Inc

3 Expert Witness Viewpoint The opinions expressed are my own based on readings of recent cases. The cases are representative there may be others but I did not look for them. I have not been personally involved in any of them. I am not commenting on the correctness of the jurisprudence, rather, I am giving a view that they have shaped the role of the expert witness

4 What is an Expert A trial judge must determine whether the individual is qualified as an expert, and if so, what the "nature and scope of the proposed expert evidence" will be. The qualification process is one of delineating the boundaries of the evidence and the language used. The judge cannot permit the expert to give an opinion on common matters or matters where the expert has no special skills, knowledge, or training.

5 3 Big Issues 1. Can an expert be an advocate as well? And vice versa? 2. Given the nature of the industry, how is conflict of interest looked at for experts? Experts that are part of paralegal or legal corporations or affiliated? 3. To what extent can you share draft reports with legal counsel?

6 3 Representative Cases to Discuss 1. Motion June MPAC move, RIM/Waterloo respond 2. Motion January Canadian Tire move, MTE/MPAC respond 3. Moore vs Getahun Trial Court of Appeal Decision

7 1. The MPAC RIM Motion Issue: Can an expert provide advocacy? Background: Among other details, MPAC applies to have the appellant s expert witness disallowed from giving testimony due to the fact that the expert had previously appeared as an advocate on the same matter ARB (McAnsh): As the property was in the standard hearing stream on the basis of value, the board rules state that without application to the Board the representative cannot be both an advocate and a witness (Rule 11(2)). This is contrary to previous ARB decisions which allowed expert testimony taken to weight. So what is the true answer?

8 2. The CanTire MTE Motion Issue: Actual/Perceived conflict of interest & invisible walls? Background: A consultant formerly on the side of the taxpayer changes jobs and moves to the municipal side. Can he provide legal/consulting services now, given that he has insider information? CanTire moves that he can t, and further that his consulting firm should now be barred from providing the same services. Alternatively, the ARB s view on what precautions would allow the consulting firm to provide services without conflict

9 2. CanTire - MTE Finding :The Board grants the motion and removes the consultant What do we learn? Four Tests! Has it been shown that the expert received confidential information that is relevant? Has counsel for the responding party received the confidential information? ** Is there a risk that the information will be used to the prejudice of the mover? Is removal the appropriate remedy? How did the info get to the wrong hands and could it have been avoided? Conduct of counsel when the problem is learned Degree of prejudice caused State of the litigation

10 ** Corollary! Goudge comment Vice Chair Bourassa quotes Goudge, JA in a case where an expert received privileged information from a party then is retained by opposing counsel opposing counsel is deemed to have obviously gained that info. The expert comes with confidential relevant info The expert is not trained in the notion of privilege like a lawyer nor expected to screen information in this matter It would be up to the potentially guilty party to prove they did not get confidential information, when they may not know what of the information was confidential (it s a circular equation!) It would be difficult to prove to a reasonable public person they didn t get anything useful

11 2. CanTire - MTE What did we learn? There are really no adequate safeguards. You need to make sure not to get involved if there is a perceived conflict of interest-both as an advocate and as a witness.

12 3. Moore vs Getahun Original Case (Jan 2014): Expert admitted in testimony that he changed his report after a 1.5 hour meeting with defence counsel Judge finds: Counsel s practice of reviewing draft reports was ordered to stop The purpose of Rule of the Rules of Civil Procedure is to ensure the independence and integrity of the exert witness. The expert s primary duty is to the court. In light of this change in the role of the expert witness under the new rule, I conclude that counsel s practice of reviewing draft reports should stop. There should be full disclosure in writing of any changes to an expert s final report as a result of counsel s suggestions, or clarifications, to ensure transparency in the process and to ensure the expert witness is neutral. Big issue: Can experts provide draft reports to counsel for review and comment?

13 3. Moore vs Getahun Court of Appeal January 20, 2015 decision CICBV, Canadian Defence Lawyers Assn, Ontario Trial Lawyers Assn, Criminal Lawyers Assn, Advocates Society intervenors on behalf of experts/advocates stating judgement was erroneous Court of Appeal Justice Sharpe reverses the findings

14 Moore vs Getahun Court of Appeal Three observations from Justice Sharpe: 1. The ethical and professional standards of the legal profession forbid counsel from engaging in practices likely to interfere with the independence and objectivity of expert witnesses 2. The ethical standards of other professional bodies place an obligation upon their members to be independent and impartial when giving expert evidence 3. The adversarial process, particularly cross-examination, provides an effective tool to deal with cases where there is a real possibility that counsel improperly influenced an expert witness. The lawyer review ensures the report addresses the critical issues and is restricted to those relevant issues in a manner that is accessible and comprehensive saving the court time and money.

15 3. Moore vs Getahun What do we learn? Yes, send your drafts to counsel for review No, don t let counsel tell you how to value something Counsel can suggest clarification, etc, but can t influence value

16 EXPERTS: What do we learn from these cases? MPAC vs RIM Don t be an advocate and an expert in the same hearing. Maybe. (unless there is a waiver granted by the board (standard stream) or unless there is a direct to hearing matter). This needs to be more clear. Can-Tire vs MTE Conflict of interest is bad. For the lawyer and the expert. Disclose it early and recuse yourself experts are not supposed to/expected to keep things privileged their duty is to the court. We also have no clarity as to what would be an adequate safeguard. Moore vs Getahun Legal counsel reading your report is useful to ensure you address the issues in a relevant and meaningful way. BUT counsel has no right to tell you how to value things or to influence your opinions. Your opinion must be your own.

17 Questions, Comments, Concerns, Complaints Jeff Grad, CPA, CA, CBV, MRICS, AACI, P.App, PLE Equitable Value Inc x101