Book 1 - Appraisal Institute of Canada

Legal news & viewsBy Ludmila Herbst, LL.B., Farris, Vaughan, Wills & Murphy LLP, Vancouver, British ColumbiaEvolving courtrules on expert evidenceAppraisers providing expert evidence inseveral Canadian courts – includingthe Ontario Superior Court, the NovaScotia Supreme Court and (as of July 1, 2010) theBC Supreme Court – face changes in the courtrules which govern expert witnesses’ reportsand roles. The changes to these trial courts’ rulesinclude (1) new requirements for expert witnessesto state in their reports that their evidenceis given objectively or in accordance with aduty to assist the court (the wording varies byprovince), with this prevailing over obligationsto the party by whom they are retained; and (2)in some jurisdictions, particularly in BC, greaterencouragement for opposing litigants to jointlyretain a single expert. Both types of change areintended to reduce the cost and acrimony associatedwith ‘battles of experts’ and to make expertevidence more helpful to the courts in which thechanges are instituted.Court rules requiring acknowledgment ofexperts’ duties may alter little in the substantiveapproach of those witnesses who belong toprofessional organizations (such as the AppraisalInstitute of Canada) which set standards thatalready encourage objectivity and, indeed,provide for written certifications of impartiality.The new judicial requirement may have a greaterinfluence on the content of reports in previouslyless regulated fields or fields where a ‘hired gun’mentality seems to be widespread; in thosefields, experts required to acknowledge theirobjectivity may think twice about their approach.More broadly, it is possible that partisanshipby an expert witness in breach of his orher written commitment to be objective or toassist the court could now expose that witnessto sanctions directly from the court, rather thansimply from the professional organization, ifany, to which the expert belongs. The case law inthe absence of these court rules has traditionallypermitted courts to take a less direct approach,where they may (1) ‘punish’ the litigant whoseexpert has been partial, by refusing to admitthe expert’s report into evidence or giving littleweight to it (thus leaving a gap in that litigant’scase); and/or (2) criticize experts for lack ofobjectivity in the course of reasons for judgementon the broader issues. What additional steps, ifany, that the courts will take under the new rulesremains to be seen.Certain of the new court rules also address thejoint appointment by parties of a single expertto opine on particular issues. The Nova Scotiarules provide for joint appointment on agreementof the parties. The BC rules go further, both insetting out a detailed protocol for joint appointmentsand in providing that the BC SupremeCourt will have the power to order that the expertevidence on one or more issues be given by onejointly instructed expert, even if neither partyhas requested that such an order be made. Intheory, the appointment of a single expert shouldreduce the expense to parties, as they will be ableto share costs. Given the requirement even forexperts retained by a single party to be impartialrather than to serve as the retaining party’sadvocate, the conclusions in the jointly procuredreport should also, in theory, be the same as inreports which were separately obtained. However,concerns have been raised over how well thistheory will translate into practice, and indeed theconcept of joint appointment has not found itsway into the new Ontario rules (although theydo encourage party agreement on the selectionof court-appointed experts, a different issue).Concerns include that parties’ resources may beconsumed in fighting between themselves on theselection of a jointly appointed expert and theinstructions to be given to the expert, or in retaining‘shadow’ experts (whose evidence cannot,however, be filed on the same point withoutleave of the court) to review the jointly appointedexpert’s conclusions. It will be interesting to seehow the practice develops in this regard.click here to return to table of contentsCanadian Property Valuation Volume 54 | book 1 | 2010 Évaluation Immobilière au Canada 17