Tribunals Ontario
Tribunaux décisionnels Ontario
Assessment Review Board
Commission de révision de l’évaluation foncière
ISSUE DATE: June 23, 2023
Assessed Person(s): 1324782 Ontario Limited
Appellant(s): 1324782 Ontario Limited
Respondent(s): Municipal Property Assessment Corporation Region 05
Respondent(s): City of Kingston
Property Location(s): 1264 1270 Mcadoo’s Lane
Municipality(ies): City of Kingston
Roll Number(s): 1011-080-260-20000-0000
Appeal Number(s): 3419277, 3440083, 3486715 and 3511857
Taxation Year(s): 2020, 2021, 2022 and 2023
Hearing Event No.: 779883
Legislative Authority: Section 40 of the Assessment Act, R.S.O. 1990, c. A.31
Parties
Representative
1324782 Ontario Limited
Jonas Perov
Municipal Property Assessment Corporation
Veronica Wellman
City of Kingston
Submissions not received
REQUEST FOR: Order excluding expert evidence
HEARD: May 18, 2023 in writing
ADJUDICATOR(S): Carly Stringer, Member
MOTION DECISION
OVERVIEW
1The Municipal Property Assessment Corporation (“MPAC”) is responding to appeals brought before the Assessment Review Board (the “Board”) by 1324782 Ontario Limited (the “Appellant”) relating to the property assessment of 1264-1270 Mcadoo’s Lane in the City of Kingston, Ontario.
2The Appellant has filed an expert report authored by Robert Cushing (the “Proposed Expert”) and intends to call him as its expert witness at a hearing of these appeals. The Proposed Expert’s report includes opinion evidence regarding the value of the Subject Property.
3MPAC has brought this motion asking that the Board restrict the Proposed Expert from acting as an expert witness for the Appellant and remove their expert report from the appeal record. MPAC says that the Proposed Expert acted as an advocate in preparing the Appellant’s Statement of Issues (“SOI”). MPAC submits that the Proposed Expert is not qualified to act as an expert because they will not be able to provide evidence that is fair, objective and non-partisan.
4The Appellant opposes MPAC’s motion. The Appellant argues that its SOI was prepared and served before it could have known that expert reports and witnesses would be required. The Appellant further submits that there is nothing in the Board’s Rules of Practice and Procedure (the “Rules”) that restricts an expert witness from authoring a SOI, and the Proposed Expert’s report reflects a thorough, independent and objective opinion. Finally, the Appellant argues that MPAC waited too long to challenge the Proposed Expert’s qualification, prejudicing the Appellant by removing its evidence at a very late stage in the appeal process.
5The City of Kingston has not responded to this motion.
Result
6For the reasons that follow, the Board grants MPAC’s motion and excludes the Proposed Expert’s evidence.
ANALYSIS
Issue 1 – Should the Board restrict the Proposed Expert from providing expert evidence in these appeals?
Applicable Law
7The Rules permit – in certain circumstances – that a party’s representative can appear at a Board hearing as both an advocate and a witness. However, there is a distinction between whether an advocate can testify as to facts, and whether they are qualified as an expert to provide opinion evidence. When the admissibility of expert evidence is at issue, particular considerations come into play. The Board provides the following overview to address the circumstances that are explicitly considered by the Rules, and those that are not.
Acting as Advocate and Witness Before the Board
8Rule 14 of the Board’s Rules provides that:
- A representative who is licensed by the Law Society of Ontario as a paralegal or lawyer to appear at a hearing event as both an advocate and a witness:
a. in a summary proceeding before the Board; or
b. in a general proceeding with leave of the Board.
9Rule 14 is not engaged by this motion, as the Appellant’s Proposed Expert is not seeking to be both an advocate and a witness at the hearing. Instead, the Proposed Expert previously acted as the Appellant’s Representative as identified on the Appellant’s SOI, and the Appellant is now seeking to tender the Proposed Expert as an expert witness. The Appellant will have a different advocate for the hearing, so the Proposed Expert would not be in the dual role contemplated by Rule 14.
10Since Rule 14 is not engaged by these circumstances, the Board will discuss the admissibility of expert evidence more generally.
Evidence from Expert Witnesses
11It is a general rule of evidence that witnesses are to testify as to the facts which they perceived, not the opinions that they drew from those facts: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR (“White Burgess”) at paragraph 14. There is an exception to this rule that allows for opinion on matters that require the specialized knowledge of an expert: see R. v. Abbey, 1982 CanLII 25 (SCC), [1982] 2 SCR 24 at p. 42.
12In R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 SCR 9 the Supreme Court of Canada developed a framework to determining the admissibility of expert opinion evidence. As a starting point, the party seeking to admit expert opinion evidence must establish that the evidence is relevant; that it is necessary to assist the trier of fact; that it is not subject to an exclusionary rule; and that the expert is properly qualified: see R. v Mohan at pp. 20-25.
13It is this fourth requirement - that the expert be properly qualified - that is engaged in the current motion before the Board.
14To be considered “properly qualified”, an expert witness must i) be aware of their duty to provide the court with “fair, objective and non-partisan” evidence, and ii) be able and willing to carry out that duty: see White Burgess at paragraph 46. In the event a proposed expert witness is not able, or is unwilling, to fulfil that obligation, they do not meet the qualifications of an expert for the purpose of providing opinion evidence in a proceeding and their evidence should be excluded: White Burgess at paragraphs 23 and 46.
15In accordance with the guidance in White Burgess, the Board’s Rules require that an expert report include an Acknowledgement of Expert’s Duty (“AED”) signed by the expert that i) confirms their duty to provide fair, objective and non-partisan evidence; and ii) acknowledges this duty prevails over any obligation to a party on whose behalf the expert is engaged. Therefore, any expert appearing before the Board must confirm that they are properly qualified to provide opinion evidence.
16The process for challenging a proposed expert’s qualifications on the basis that the expert is unable or unwilling to provide fair, objective and non-partisan evidence was outlined in White Burgess as follows:
a) Once an expert attests or testifies an oath that they are able and willing to perform their duty to be fair, objective and non-partisan – for instance, signing an AED – there is a burden on the party that opposes admitting the expert evidence to show that there is a “realistic concern that the expert’s evidence should not be received because the expert is unable and/or unwilling to comply with that duty”: see White Burgess at paragraph 48.
b) The burden to establish that the expert is qualified remains on the party proposing to call the evidence: see White Burgess at paragraph 48.
c) The trier of fact must then consider both the circumstances of the proposed expert, and the substance of their proposed evidence to ascertain whether they are able and willing to provide evidence that is fair, objective and non-partisan. When considering the relationship between a proposed expert and a party, “the question is not whether a reasonable observer would think that the expert is not independent. The question is whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance”: White Burgess at paragraph 50.
Findings on Issue 1
17The Board finds there is a realistic concern that the Appellant’s Proposed Expert’s evidence should not be received because the expert is unable and/or unwilling to comply with their duty to the Board to provide evidence that is objective, fair and impartial. This finding is based on the Proposed Expert previously acting as the Appellant’s Representative and advocate before the Board, as demonstrated in the Appellant’s SOI.
18Therefore, the Appellant bears the onus of satisfying the Board, on a balance of probabilities, that the Proposed Expert is qualified.
19The Board finds that the Appellant has not satisfied it that the Proposed Expert is able and willing to provide evidence that is fair, objective and non-partisan. In making this finding, the Board has considered the following arguments advanced by the Appellant:
a. that there is nothing in the Rules that restricts an expert witness from authoring a pleading;
b. that simply authoring a pleading is not acting as an advocate; and
c. that MPAC has raised this concern too late in the proceeding, prejudicing the Appellant.
20The Board will address each submission in turn.
21First, the Board does not accept the Appellant’s submission that the Proposed Expert should be permitted to act as an expert because there is nothing in the Rules that restricts them from authoring a pleading. As outlined above, it is the requirement that an expert provide fair, objective and non-partisan evidence to the Board that could restrict a person who has authored a pleading from acting as an expert. The Rules are not engaged – this is a question of whether the Proposed Expert is qualified, and therefore whether their expert evidence is admissible.
22Second, the Board does not accept the Appellant’s submission that authoring a pleading is not acting as an advocate. A pleading is a statement of the legal and factual grounds on which a party is arguing an appeal. By definition, it includes advocacy of a party’s position. Further, the Proposed Expert was named in the SOI as the Appellant’s paralegal representative. The facts do not support the Appellant’s argument in this regard.
23Third, the Board does not accept the Appellant’s argument that MPAC has brought this motion too late in the process. There is no timeline prescribed in the Rules or the Schedule of Events for challenging the qualifications of an expert witness. Moreover, it is the Appellant’s burden to qualify the Proposed Expert to provide opinion evidence. If removing the Proposed Expert’s evidence at this stage prejudices the Appellant – although the Board makes no findings in that regard because the Appellant did not proffer affidavit evidence on this motion to support its submissions relating to prejudice – such prejudice would be of the Appellant’s own making given its burden to select an expert who can be qualified to give opinion evidence.
24Overall, the relevant question is whether the relationship between the Proposed Expert and the Appellant results in the Proposed Expert being unable or unwilling to carry out their primary duty to the Board.
25The Board determines that the Proposed Expert’s evidence should be excluded because they are not able to provide the Board with fair, objective and non-partisan evidence. First, the Board notes the Supreme Court of Canada’s statement that an expert who “assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court”: see White Burgess at paragraph 49. The Board finds that the Proposed Expert acted as the Appellant’s Representative in the SOI, and therefore this edict from White Burgess applies.
26Second, in determining that the Proposed Expert is unable to comply with its duty to the Board, the Board has considered all of the circumstances, including the content of the report, the content of the SOI, and the undisputed evidence from MPAC that the Proposed Expert prepared and was identified as the Appellant Representative in its SOI. The Appellant did not dispute that the Proposed Expert prepared the SOI and acted in a paralegal capacity for it. The Appellant did not provide affidavit evidence in response to this motion, therefore there is no evidence on the specific scope of the Proposed Expert’s work on its behalf. It is clear that the Proposed Expert has a prior relationship with the Appellant as its paralegal and advocate, and the Board finds that could or would influence their expert opinion. In these circumstances, the Board finds the Proposed Expert is unable to provide an objective, fair and non-partisan opinion.
CONCLUSION
27The Board finds that this is a very clear case where the Proposed Expert is unable to provide the Board with fair, objective and non-partisan evidence. Therefore, the expert evidence will be excluded.
ORDER
28The Board orders that:
a. Mr. Cushing may not appear at the hearing as an expert witness;
b. Mr. Cushing’s expert report be removed from the appeal record;
c. the Appellant is granted seven (7) days to confirm whether it intends to call Mr. Cushing as a fact witness at the hearing and, if so, to serve and file a witness statement from Mr. Cushing that sets out any of the factual information (not opinion) from the expert report that he intends to provide at the hearing of these appeals, including a list of any documents that he intends to rely on.