Failing to Tender Your Expert’s Qualifications Could Prove Fatal. In this case, a Vendor of a failed real estate sale sued the Defaulting Purchaser for the difference in their agreed selling price, and the lower eventual sale price. The Defaulting Purchaser took the position that the eventual sale price was undervalued, and tendered Affidavit evidence from “experts” who explained why the eventual sale price was inordinately low, and wholly under market value. The Defaulting Purchaser wanted to argue that had the home been resold at the correct market rate, nothing was owed to the Vendor. The court did not accept the evidence of the “experts” because their qualifications were not provided, and when the experts were questioned about their qualifications, the self-represented Defaulting Purchaser refused to let the experts answer those questions. In the result, the motions judge gave very little weight to the experts’ testimony, and concluded that the eventual resale purchase price was the correct value for the house on resale, and awarded damages for the difference in this lower resale price and the sale price negotiated with the Defaulting Purchaser. The Court of Appeal upheld the treatment of the experts’ evidence, citing that absence of any qualifications, it was appropriately open to the judge to conclude that their testimony was of “no probative force,” and to draw a negative inference from the Defendant’s refusal to allow the experts to answer questions about their qualifications. As stated by the court:
“As a matter of common sense, it is plain and obvious that the “expert’s” experience and training would be relevant to the weight to be assigned to the opinion. The appellant refused to allow the witness to answer questions that were obviously relevant to the weight to be attached to the opinion offered by that witness. The most obvious explanation for the refusal to answer the question is that the answer would not help the appellant’s claim the property was sold under value. The logic of the adverse inference drawn from the appellant’s refusal to allow the witness to answer those questions was not dependent on whether the appellant was legally trained.”
Scott v. Forjani, 2022 ONCA 30
https://www.canlii.org/en/on/onca/doc/2022/2022onca30/2022onca30.html