Court File and Parties

COURT FILE NO.: 24714/09

DATE: 2012-03-15

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Continental Roofing Limited, Applicant

AND:

J.J.’s Hospitality Limited, Respondent

BEFORE: Koke, J.

COUNSEL: Donald B. Laidlaw, Counsel for the Applicant

Gordon P. Acton Counsel for the Respondent

HEARD: March 8, 2012

decision on issue of admissibility of expert evidence

ISSUES

[1] The defendant retained a consultant to provide it with advice and direction in relation to repairs to the roof of its building. Problems occurred while the plaintiff carried out the repairs. The issue on this pre-trial motion is whether the consultant should be permitted to testify as an expert witness on behalf of the defendant. A related issue is whether Rule 53.03 applies to a person with expertise who was involved in the history of the subject matter of the action or applies only to persons retained as experts solely for the purpose of assisting in the litigation.

BACKGROUND

[2] The applicant roofing company (“Continental”) entered into a contract with the respondent (“Hospitality) on September 20, 2008 to undertake repairs on the roof of the respondent’s hotel. While the work was being carried out, leaking occurred, causing substantial damage to the inside of the hotel.

[3] Continental has issued a claim against Hospitality for the contract price. Hospitality has responded by issuing a counterclaim for damages to its building.

[4] Bruce Caughill is an architect and engineer who was retained by Hospitality to provide consulting services with respect to the roof. As early as May, 2005 he inspected the roof, reported membrane shrinkage and recommended that the roof be replaced. Rather than replace the roof, Hospitality chose to undertake repairs at that time. Further repairs were carried out in 2005, 2007 and 2008. During this time Hospitality sought the advice of Mr. Caughill from time to time respecting maintenance procedures and Mr. Caughill also advised Hospitality with respect to carrying out basic investigations and minor repairs to the roof with its own forces.

[5] In August, 2008, Mr. Caughill asked Continental if it would be interested in quoting on the repair of the roof. Continental submitted a proposal and Mr. Caughill approved the proposal prior to acceptance by Hospitality.

[6] Continental commenced the work on November 4, 2008. After the leaking was reported Mr. Caughill carried out an inspection of the applicant’s work and recommended that Hospitality engage another roofer to install a different type of roof. Thereafter, Continental was barred from attending the site and the roof repairs were completed by another roofing company.

[7] The trial is scheduled to begin on August 27, 2012. Hospitality has advised Continental that it intends to call Mr. Caughill as an expert witness and it has served Continental with several expert reports prepared by him.

[8] In his expert reports Mr. Caughill expressed his opinion that the method used by Continental to repair the roof was such that the roof was exposed to too great a risk of punctures. He opined that Continental proceeded to carry on the work without appropriately protecting the membrane, which was the sole protective layer which kept water from entering the building. Furthermore, the methodology proposed by Continental to complete the work was such that in his opinion the roof would continue to be exposed to the risks associated with adverse weather and would therefore leak.

[9] Continental requests an order that the expert reports are inadmissible and that Mr. Caughill be prevented from giving opinion evidence and testifying as an expert on behalf of Hospitality.

POSITION OF THE PARTIES

[10] The parties are agreed that expert evidence will only be admitted where the following criteria are met:

a) the evidence must meet the test of relevance;

b) the evidence must be capable of assisting the trier(s) of fact;

c) the absence of any exclusionary rule; and

d) the expert must be a properly qualified expert.[^1]

[11] Continental submits that the admission of the expert evidence:

a) does not meet the test of necessity; and

b) in the circumstances of this case, Mr. Caughill is not a properly qualified expert.

Necessity

[12] Continental argues that Mr. Caughill’s expert evidence is not necessary for the assistance of the trial judge to reach a conclusion on the proven facts because:

a) it does not provide any information that is likely to be outside the experience or knowledge of the trial judge; or

b) Mr. Caughill has opined on the ultimate issues before the court, thereby threatening to usurp the role of the trial judge.

[13] Hospitality argues that Mr. Caughill is an important witness for the trier of fact in that:

a) he has professional qualifications and credentials;

b) he has a history of knowledge of the roof dating back a number of years before the work performed on the roof by Continental and can give cogent, professional testimony as to its state and condition, including documents, photographs, reports; excluding his evidence would compromise the Court’s ability to reach a just result.

Not a Properly Qualified Expert

[14] Continental submits that Mr. Caughill is not a properly qualified expert witness because:

a) due to his long business relationship with the defendant, he lacks the necessary independence of the defendant and the plaintiff by counterclaim;

b) he lacks the impartiality required of an expert witness as he has advised the defendant and plaintiff by counterclaim and he has advocated on their behalf on the issue arising in this matter; or

c) the opinions expressed in his reports are biased in favour of the defendant and plaintiff by counterclaim and are not fair, objective and non-partisan.

[15] Hospitality submits that simply because Mr. Caughill comes to an opinion which Continental does not feel is favourable to their position does not mean that the opinion is biased. It points out that no opinion of an expert is automatically accepted by the trier of fact as being true. All opinions are tested by opposing counsel and by the trier of fact in the course of the trial.

[16] Furthermore, all of the complaints which Continental has in respect of the conclusions of Caughill can be tested by evidence called by Continental, including that opinion evidence which is admitted into evidence.

[17] Hospitality also argues that if Mr. Caughill does not qualify as an expert witness under Rule 53.03 then he should be permitted to provide opinion evidence as an expert who is retained as a professional in relation to the subject matter of the litigation.

THE ADMISSION OF EXPERT EVIDENCE: LEGAL FRAMEWORK and RECENT DEVELOPMENTS

[18] The introduction of expert reports and expert opinion evidence is governed by Rule 53.03 and Rule 4.1.01 of the Rules of Civil Procedure. Rule 4.1.1. came into force on January 1, 2010. Rule 53.03 underwent substantial amendments which came into force at the same time.

Duties of Expert Witnesses

[19] Rule 4.1.01 sets out the duties of the expert as follows:

4.1.01 (1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,

(a) to provide opinion evidence that is fair, objective and non-partisan;

(b) to provide opinion evidence that is related only to matters that are within the expert's area of expertise; and

(c) to provide such additional assistance as the court may reasonably require to determine a matter in issue.

(2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.

Expert Reports

[20] Rule 53.03 imposes requirements regarding the content and delivery of expert reports where an expert is expected to give evidence at trial. The amended rule now mandates that the expert’s report contains the following specific information:

1.) The expert's name, address and area of expertise.

2.) The expert's qualifications and employment and educational experiences in his or her area of expertise.

3.) The instructions provided to the expert in relation to the proceeding.

4.) The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.

5.) The expert's opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert's own opinion within that range.

6.) The expert's reasons for his or her opinion, including,

i.) a description of the factual assumptions on which the opinion is based;

ii.) a description of any research conducted by the expert that led him or her to form the opinion; and

iii.) a list of every document, if any, relied on by the expert in forming the opinion.

7.) An acknowledgement of expert's duty (Form 53) signed by the expert.

[21] The introduction of Rule 4.1.1.and the changes in Rule 53.03 originated from the work done by the Honourable Coulter A. Osborne, Q.C. in the Civil Justice Reform Project. In paragraph 9 of his Summary of Findings and Recommendations released November 2007, he stated that the increased use of experts caused delay and increased litigation costs. Of particular concern was the perceived growth in expert bias when experts were giving evidence before the court.

[22] A common complaint was that too many experts were no more than "hired guns" who tailored their reports and evidence to suit the client's needs. He found at page 75 that "there does not appear to be any sound policy reason why the Rules of Civil Procedure should not expressly impose on experts an overriding duty to the court, rather than to the parties who pay or instruct them."

[23] The Supreme Court in R. v. Mohan expressed its concern about the increased use of expert evidence in these terms:

There is a danger that expert evidence will be misused and will distort the fact-finding process. Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves. As La Forest J. stated in R. v. Béland, [1987] 2 S.C.R. 398, at p. 434, with respect to the evidence of the results of a polygraph tendered by the accused, such evidence should not be admitted by reason of "human fallibility in assessing the proper weight to be given to evidence cloaked under the mystique of science". The application of this principle can be seen in cases such as R. v. Melaragni (1992), 73 C.C.C. (3d) 348, in which Moldaver J. applied a threshold test of reliability to what he described, at p. 353, as "a new scientific technique or body of scientific knowledge". Moldaver J. also mentioned two other factors, inter alia, which should be considered in such circumstances (at p. 353):

(1) Is the evidence likely to assist the jury in its fact-finding mission, or is it likely to confuse and confound the jury?

(2) Is the jury likely to be overwhelmed by the "mystic infallibility" of the evidence, or will the jury be able to keep an open mind and objectively assess the worth of the evidence?[^2]

[24] The changes to Rule 53.03 and the new requirements contained therein have not changed the purpose and intent of the Rule. The purpose of the rule was stated in Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham, 51 O.R. (3d) 97 (C.A.) at para. 38:

the purpose of the rule, ... is to facilitate orderly trial preparation by providing opposing parties with adequate notice of opinion evidence to be adduced at trial.

[25] The reason for admitting expert opinion evidence is set out in Sopinka, Lederman & Bryant as follows:

12.2 As a general rule, a witness may not give opinion evidence but may testify only to facts within her or his knowledge, observation and experience. It is the province of the trier of fact to draw inferences from the proven facts. A qualified expert witness, however, may provide the trier of fact with a "ready-made inference" which the jury is unable to draw due to the technical nature of the subject matter. Thus, expert opinion evidence is permitted to assist the fact-finder form a correct judgment on a matter in issue since ordinary persons are unlikely to do so without the assistance of persons with special knowledge, skill or expertise.

[26] In general terms, evidence is admissible if it is relevant, material and probative, and where its probative value exceeds its prejudicial effect: see Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 3d ed. (Markham, Ont.: LexisNexis Canada, 2009) at paras. 12.48-12.50.

[27] The four factors referred to in R. v. Mohan which are to be assessed by a court in determining admissibility of expert evidence remain the relevant factors. These have been identified above as (1) relevance, (2) necessity in assisting the court in determining the facts, (3) absence of an exclusionary rule and (4) provided by a properly qualified expert.

To Whom does Rule 53.03 Apply?

[28] Rule 53.03 does not include a definition of the word “expert”. Recent cases have held that Rule 53.03 is limited in its application to witnesses who are hired as “litigation experts” and have not had any involvement with the subject matter of the litigation or either of the parties.

[29] In Hall v. Kawartha Karpet &Tile Co.[^3] the plaintiffs wished to call an assistant fire chief as a witness and elicit opinion evidence from him. The assistant fire chief had attended at the scene of the fire, assisted in commanding the firefighters and then conducted an investigation of the origin and source of the fire. Following the fire he prepared a one page occurrence report in which he set out brief conclusions.

[30] The defendants objected to having the assistant fire chief give opinion evidence on the grounds that the plaintiffs had not complied with Rule 53.03.

[31] D.S. Ferguson J. of this court held that Rule 53.03 did not apply to this witness, and provided the following reasons therefore at paras.6 and 10-13 of his decision:

6 In my view Rule 53.08 was intended to apply to persons with special expertise who are retained by a party to assist in litigation. I appreciate that there is a chicken and egg analysis here and that one could argue that the rule should apply to anyone whom the court finds qualified to provide opinion evidence and that leave should be granted where it may be impractical to comply with the rule. However, I think a consideration of all the circumstances favours the conclusion that the rule does not apply here at all.

10 Section 12 of the Ontario Evidence Act limits to three the number of experts a party can call without leave. That statute does not define the term expert'. However, I do not think anyone would suggest that a person who was involved in the history of the matter in the normal course should be included in the maximum of three. For instance, if the action were a professional negligence case against an engineer I do not think anyone would suggest that the defendant engineer was to be counted as one of the three permitted experts. Similarly, if the action involved a personal injury I don't think anyone would suggest that a physician who had treated the plaintiff in the normal course, say in the emergency department of a hospital, should be counted as one of the three permitted experts.

11 I note in passing that where such a witness falls within s. 52 of the Evidence Act (ie. the witness is a practitioner' as defined in the section and has signed a report for a party), then the party calling that witness would have to deliver the report required by s. 52.

12 In addition, a witness who has been involved in the history of a matter might well not be qualified to be an expert under Rule 53.08 because the witness is not independent. For example, the expert witness in a malpractice case who had some role in the history (for example, an anaesthetist who witnessed the surgery performed by a defendant surgeon) might be a colleague of the defendant professional or even his or her partner. A number of cases have now established that an expert has a duty to the court and must provide "independent" opinion rather than just a "hired gun" opinion for the purpose of assisting the party who retained him or her: Ferguson, Ontario Courtroom Procedure, LexisNexis, 2007, at p. 930 ff. Consequently, the case law indicates that where a person with expertise may have knowledge or an opinion about a case, that person should not be considered an expert witness in this sense. This tends to suggest that such a witness would not fall under Rule 53.08.

13 Finally, it appears to me that Rule 53.08 was not intended to apply to witnesses where a party could not be expected or even be able to comply with the requirements of the rule. For instance, if the witness were like the one here, a professional who was fulfilling a duty when involved in the history of the background story, that person would not likely be willing or even able to prepare a report at the instance of a party in order to permit that party to comply with Rule 53.08. In some cases the party might not even be able to speak with the witness before trial. Where, as in the example of the personal injury case, the witness had a professional relationship with the opposite party, then the professional would have a duty of confidentiality to the opposite party (the patient) and the witness would not be permitted to speak to the party wishing to call him or her and would not be permitted to disclose any information or opinion necessary to prepare a report.

[32] Ferguson J. drew a similar distinction in Burgess (Litigation Guardian of ) v. Wu (2003)[^4] between “treatment opinions” created by a treating physician and “litigation opinions” formed by experts hired for the purpose of litigation, finding that Rule 53.03 did not apply to opinions rendered by treating physicians.

[33] Similarly, Turnbull J. in Slaght v. Philllips[^5] ruled on a voir dire that a vocational consultant, who had provided care to the plaintiff at the instance of the accident benefit insurer, could give opinion evidence at trial. Turnbull J. made a distinction between treating expert witnesses and non-treating experts who are retained by a party solely to express opinions during trial. He held that there are different classifications of experts which come before the court and Rule 53.03 was applied more stringently to some classifications of experts than to others.

[34] In Slaght v. Phillips, Turnbull, J. held:

I am not aware of any exclusionary rule that would be offended by the admission of the opinion offered by Ms. Malacaria, particularly in light of the fact that we can consider her as essentially a treating expert witness. In other words, she is giving opinions based upon her work with the plaintiff as opposed to being hired as a litigation expert who has not had any involvement with either party in the litigation.[^6]

[35] Slaght v. Phillips was cited with approval by H. MacLeod-Beliveau J. in McNeill v. Filthaut[^7]. MacLeod-Beliveau summarizes Turnbull J.’s classifications of experts at para. 48 of her judgment as follows:

(1) treating experts who form treatment opinions as part of their ongoing work to which Rule 53.03 is not strictly applied and for which relief from non compliance with Rule 53.03 can be ordered;

(2) experts who are retained by a party to an action to express litigation opinions but who are not treating specialists to which Rule 53.03 is strictly applied;

(3) experts retained by third parties, such as accident benefit insurers, disability insurers, to provide litigation opinions to those third parties with respect to causation, proper treatment, eligibility for insurance coverage, and a multitude of other issues to which Rule 53.03 is strictly applied;

(4) experts who are paid by third parties, but then provide care to a party in the action, assisting that person in his or her needs, produce a report expressing opinions with respect to the need for treatment, the recommended course of treatment, and the next step to be taken, who become treating experts expressing treatment opinions to which Rule 53.03 is not strictly applied and for which relief from non compliance with Rule 53.03 can be ordered.

[36] Turnbull J. allowed the expert vocational consultant to testify as a treating expert and relieved against non compliance with Rule 53.03.

[37] In McNeill v. Filthaut, the defendant sought to call as expert witnesses some of the professionals retained by the accident benefit insurer of the plaintiff to give opinion evidence at trial. Although both parties agreed that the evidence of these witnesses was relevant, the plaintiff refused to give consent to call these witnesses on the basis that their reports did not strictly comply with the requirements of Rule 53.03. The plaintiff also refused to provide her consent to allow the defendant to contact or retain the accident benefit assessors in order to bring their reports into compliance with Rule 53.03.

[38] MacLeod-Beliveau J. held that the term “party” as it was used in Rules 53.03 and 4.1.01 did not include accident benefit insurers and as such Rule 53.03 did not apply in respect of their evidence. Rule 53.03 restricted its application to experts engaged by or on behalf of a party who were called as witnesses at trial.

[39] MacLeod-Beliveau J. noted that without the evidence of the accident benefit assessors, a substantial amount of valuable and critically important evidence would not be available to the trier of fact. The defendant was entitled to put the best evidence it had before the court. One party should not be made to suffer loss due to the inability to call relevant evidence.

DISCUSSION

[40] In my view, Mr. Caughill is not to be regarded as an expert witness under Rule 53.03. He has not been retained by the defendant for the sole purpose of providing expert testimony of trial. He is not what we commonly refer to as a litigation expert. He has been directly involved in the events of this case. It is alleged that he approved the original design and method to be used to carry out the roof repairs and he was instrumental in arranging to have the work completed, using a different method and a different roofing company. Clearly, he is not a disinterested party.

[41] The question therefore arises as to whether Mr. Caughill should be permitted to provide opinion evidence on the basis that in providing consulting services to the defendant, he was doing his ordinary work, very much like a treating physician is viewed as doing his or her own ordinary work in providing care to an injured party.

[42] I am of the view that Mr. Caughill should be permitted to provide evidence with respect to his involvement in the subject matter of this action, and that his evidence can include both factual evidence and opinions which he formed concerning the methods employed by the plaintiff in carrying out the work and the cause of the water leakage into the building.

[43] My reasons for coming to this conclusion include consideration of the reasons why it was deemed desirable to amend Rule 53.03. The amendments to the rule were intended to eliminate the use of “hired guns” or “opinions for sale” in civil litigation, which resulted in potentially biased evidence being given at trial. In the case of Mr. Caughill and looking at the mischief that Rule 53.03 was intended to address, I do not find him to be a typical “hired gun” or just a “litigation expert” in the circumstances of this case.

[44] The services rendered by Mr. Caughill where provided as part of the services which he renders in his professional capacity as a professional engineer and a professional architect. He was retained to provide professional consulting services...he was not retained for the sole purpose of providing a litigation opinion to advance his client’s position in relation to a court case. This fact eases some of the concern about bias which the amendments to Rule 53.03 seek to address.

[45] With respect to the specific examples of bias which are raised by the plaintiff, I find that these examples pertain more to a difference of opinion or interpretation than to a lack of objectivity or bias. In my view, it falls on the trier of fact to sort out these differences, on a consideration of the totality of the evidence.

[46] With respect to the plaintiff’s objection that the Mr. Caughill attempts to address the ultimate issues before the court, namely the integrity of the roofing systems and repairs and the cause of the water damage, I find that in the circumstances of this case it would be impossible for an expert to do otherwise. Although a court must always protect itself against having its role usurped by an expert, I do not see that Mr. Caughill is attempting to do so. His evidence will not be the only evidence before the court, and the trier of fact will make a decision based on the totality of the evidence.

[47] It is my expectation that the evidence which will be provided by Mr. Caughill will not be different in nature than the evidence which will be tendered by the witnesses for the plaintiff. I expect that the plaintiff will likely call evidence from its employees and other onsite personnel, some of whom will have considerable expertise with respect to roofing systems and repairs...and I expect that that the plaintiff will seek to elicit evidence from them which will comprise not only factual evidence, but also opinion evidence. The line between opinion evidence and factual evidence is often blurred. The plaintiff’s witnesses will be able to challenge Mr. Caughill’s evidence and as such, the plaintiff should not be prejudiced.

[48] The plaintiff argues that the evidence of Mr. Caughill is not necessary. I disagree. Without the evidence of witnesses who have expertise in the area of roofing systems and repairs, I find that a substantial amount of valuable and critically important evidence will not be available to the trier of fact. Mr. Caughill has been involved as a consultant with respect to the roof for a number of years prior to the problems which arose in December, 2008. In my view, his evidence will be critical in arriving at a just determination in this lawsuit. I expect that the evidence of the plaintiff’s witnesses who were involved in undertaking the roof repairs will be equally significant.

[49] The plaintiff has raised concerns about bias on the part of Mr. Caughill. Concerns about bias should always be balanced against the imperative that parties not be denied the opportunity to put their best evidence before the court. One party should not be made to suffer loss due to the inability to call relevant evidence. Clearly, it would be unfair to the defendant if a witness who has been integrally involved in the roofing problems and who can provide relevant evidence is prevented from testifying. As indicated above, concerns about bias can be dealt with through cross examination and by the plaintiff tendering evidence by its own witnesses. The weight to be attributed to any given evidence by the trier of fact can also take into consideration concerns about bias.

[50] In my view, the nature of the evidence should also be considered in determining whether an expert can testify. In this case, the expert evidence is not arcane or scientific. There is no jury and I do not expect that it will overwhelm the trier of fact...certainly not in the context of the totality of the evidence.

[51] In conclusion, I find that requirements of Rule 53.03 do not apply to Mr. Caughill, given the nature of his retainer with the defendant company. If my interpretation of Rule 53.03 is ultimately found to be in error, I find in the alternative that the circumstances of this case merit relief against non-compliance with this rule, and that a fair adjudication of the issues dictates that Mr. Caughill be permitted to give both factual and opinion evidence.

ORDER MADE

[52] The motion is hereby dismissed, and Mr. Caughill is permitted to provide opinion evidence at trial with respect to the methods and procedures used by the plaintiff in carrying out the roof repairs, and any failures associated therewith, and with respect to the cause of the leakage of water into the building.

COSTS

[53] If the parties cannot agree on costs, the defendant will have 14 days from the release of this decision to deliver its submissions, the plaintiff will have 10 days thereafter to deliver its submission, and the defendant will have 10 thereafter to submit its reply, if any. Costs submissions may be delivered the court or emailed to the trial co-ordinator.

E.J. Koke J.

Date: March 15, 2012

[^1]: R v. Mohan, [1994] SCJ No. 36 at para.17 [^2]: R v. Mohan, supra at para. 19 [^3]: Hall v. Kawartha Karpet &Tile Co., [2007]O.J. No. 4293 (S.C.) [^4]: Burgess (Litigation Guardian of ) v. Wu (2003), 68 O.R. (3d) 710 [^5]: Slaght v. Philllips (18 May 2010, unreported) Court File No. 109/07 [^6]: Slaght v. Phillips,supra at p. 6 of transcript [^7]: McNeill v. Filthaut, 2011 ONSC 2165, [2011] O.J. No. 1863