This recent case once again highlights the struggle between expert witness immunity and the competing interest to hold an expert accountable to their litigant client if the expert’s work-product was substandard and arguably a contributing factor to the litigant’s loss or poor result at trial. The case provides a good history of the debate, and confirms that without an appellate court ruling, the lower courts are bound by precedent that elevates expert witness immunity above the right of a party to sue their expert in negligence. The court confirmed that the only current exception to this governance is the ability for a party to raise their expert’s negligence when there is a challenge over the expert’s fee. The court reiterated that it will be up to the appellate courts to change the law, and remove the expert witness immunity protection as was done in the UK in the case of Jones v. Kaney, [2011] UKSC 13, where the United Kingdom Supreme Court abolished expert witness immunity for a party suing their own expert in negligence.
The 6th Line Mofos Limited v. Stewart, 2022 ONSC 520
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc520/2022onsc520.html