In this recently released decision, the court had to contend with the admissibility of a report tendered by an expert who had access to the settlement discussions between the litigants.
In many civil cases, the chances of this occurring is rare. For example, in a personal injury context, it would be rare indeed for a medical expert to be provided with settlement details. But it has happened, as in the case of Cardillo v. NN Life Insurance Company of Canada et al, 2005 MBQB 281, 197 Man. R. (2d) 271, where the expert was disqualified because he received and reviewed the mediation briefs exchanged between the litigants.
In other contexts, however, there is a higher risk for experts to become aware of “positions” being taken by the litigants, and hence, care should be taken to avoid sharing any without prejudice communication.
Illustrative in this recent case was an expert retained in a right-of-way dispute. Here the expert was retained by the Applicant to provide expert opinion and a technical assessment concerning the right of way, and to recommend a solution that would allow both parties space to park their vehicles and allow the Applicant’s vehicle to come and go unobstructed all year round.
The expert prepared a report that simply evaluated two options: the one solution that the Applicant had offered, and the one solution that the Respondent had offered. The problem, however, was that the expert was privy to the many exchanges between counsel discussing the proposals to resolve the dispute, including formal Rule 49 Offers.
As such, the expert knew who was proposing each scenario, and what outcome each party wanted. The Respondent wanted the expert’s report to be inadmissible as a result: arguing that the expert had lost their ability to be impartial, and arguably, may have turned into an advocate. The court agreed, and the report was struck.
Realistically, in many disputes the litigant’s offers and/or their respective settlement proposals are central to dispute and hence must be disclosed to the court. For example, when disputing a right of way, which can give rise to many issues such as ingress and egress rights, maintenance rights, size, time, duration of usage, etc., the parties must come to the table with some “argument” and that argument will often replicate their settlement position at some point during the dispute. There is no way around it. As the judge recognized, at paragraph 98 of the decision, the “….the application judge will be able to consider various proposals for the right of way access.”
But it is one thing for the parties to know (and share) their positions with the judge, and it is another thing to share their positions with the expert who must remain neutral at all times. So if an expert opinion is required in these scenarios, it must be done right. A retainer letter to the expert that only provides the expert with two scenarios, and asks for an opinion on which one provides the best solution (presuming “best” is definable by certain metrics), without ascribing the scenario to any one litigant, would arguably be proper. And it would be even more proper if the retainer asked whether the expert could devise a scenario that was better than the two provided (using the same metrics). Where things derailed in this instance was that the authorship of the two scenarios was shared, and the without prejudice communications surrounding those scenarios was divulged to the expert. This arguably then tainted the expert, and possibly turned them into an advocate.
Put another way, it would be much better to hear an expert say “I believe scenario 1 is better because of …..”, rather than “I believe the scenario suggested by the Applicant is better because of ….”: the later is potentially tainted or biased, and the former is unbiased given that the expert wouldn’t know whose proposal it was.
This case also has some other instructive elements pertaining to expert reports:
- the decision to expunge the expert’s report was made a little easier because the Applicant refused to provide a copy of the instructing retainer letter, which was a complete affront to Rule 53.03(2.1) and cases like Moore v. Getahun, 2015 ONCA 55, 124 O.R. (3d) 321, at para. 75, leave to appeal refused, [2015] S.C.C.A. No. 119; and
- a second expert’s report, from a real estate agent providing an opinion on property value with, and without, parking access, was also struck because:
- the agent failed to sign the expert acknowledgement mandated by rule 53.03(2.1). The court considered the agent to be a “party” expert rather than a “non-party” (participant) expert because the agent was singularly retained to provide this specific opinion, and as a party expert the Rule 53.03 acknowledgement was mandatory; and
- she failed to make herself available for cross-examination. Hence, when you retain someone as an “expert,” you must ensure that they are prepared to fully engage, including attending trials or at a cross-examination.
Simmermon v. Djoudad et al., 2024 ONSC 2388
https://www.canlii.org/en/on/onsc/doc/2024/2024onsc2388/2024onsc2388.html