Bortnikov v. Rakitova, 2015 ONSC 1163

COURT FILE NO.: FS-11-368230

DATE: 20150223

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Aleh Bortnikov, Applicant

AND:

Marina Rakitova, Respondent

BEFORE: Penny J.

COUNSEL: Aleh Bortnikov on his own behalf

E. Shapiro for the Respondent

HEARD: February 20, 2015

ENDORSEMENT

[1] This is a motion for an order allowing the respondent to call Mr. Wayne Crawford, a real estate valuator, as a witness at the trial and for an order that his reports on the value of certain family property are admissible in evidence, subject to Mr. Crawford being qualified as an expert by the trial judge.

[2] Mr. Crawford was retained by counsel for the applicant. He prepared an appraisal report. The applicant does not agree with Mr. Crawford’s report and does not intend to call him as a witness at trial. The question on this motion, therefore, is whether the respondent can call Mr. Crawford and rely on his appraisal report at trial.

Background

[3] The parties were married on August 9, 2002 and separated on February 7, 2011. They had no children together. The issues for the pending trial relate to the applicant’s claim for spousal support and an equalization of net family property.

[4] The respondent was, before the marriage and remains, the sole owner of 1291937 Ontario Inc. The principal asset of 129 is a property known as the Grand Motel. The Grand Motel consists of real property and two buildings, a single and two-story motor hotel, situated on Kingston Road in Scarborough.

[5] It is common ground that the value of this asset is of paramount importance to the calculation of the equalization of net family property that will be one of the central features of the trial (currently scheduled to commence on March 30, 2015).

[6] The applicant is unrepresented now but was, in 2011, represented by counsel.

[7] In July 2011, the applicant’s counsel advised counsel for the respondent that the applicant had retained Mr. Crawford to prepare an analysis of the value of the Property owned by 129 and forwarded a copy of Mr. Crawford’s C.V. The applicant was seeking the respondent’s consent to schedule an appraisal appointment at the site.

[8] Counsel for the respondent replied in August 2011, indicating that Mr. Crawford was at liberty to contact the respondent directly to make an appointment.

[9] There was a case conference before Klowak J. on August 17, 2011. The parties consented to an order that:

(1) the applicant, Aleh Bortnikov, will pay for the cost of an appraisal of the properties owned by 1291937 Ontario Inc., located at 4624 Kingston Rd. and 4626 Kingston Rd., Scarborough, Ontario without prejudice to his right to claim reimbursement from the respondent a later date during this proceeding; and

(2) the appraiser, Mr. Wayne Crawford, shall be permitted to attend the properties listed in paragraph 1 above to conduct his appraisal within 30 days.

[10] It is clear that the respondent, as owner of 129, as well as the applicant provided information to Mr. Crawford about the Grand Motel Property and that, with the respondent’s knowledge and consent, Mr. Crawford went to the Property to do an inspection. Mr. Crawford prepared a report dated September 6, 2011 providing his opinion on the value of the Property. He subsequently prepared an update to this report on September 19, 2014.

[11] The evidence is not entirely clear when the respondent or her then counsel first received Mr. Crawford’s 2011 report. The respondent says it was in late September or early October 2011, although there is no documentary evidence (other than a post-it note with an October 3, 2011 “Received” date stamp) to support this.

[12] What is clear is that during his questioning in 2011, the applicant agreed to provide a copy of the Report to the respondent’s counsel and did so on December 28, 2011. Although the Report was delivered to the applicant’s counsel in September 2011, by the time of questioning in December the applicant’s lawyer had withdrawn so the applicant produced the Report acting on his own behalf. The applicant advised the respondent’s counsel when producing the Report, “I do not agree with this report.”

[13] The applicant has clearly taken the position that he does not intend to call Mr. Crawford as a witness at trial. He has also stated, under oath, that he does not intend to retain any other appraiser to prepare any other reports on the value of the Property.

[14] The respondent did not retain her own appraiser. She wants to rely on Mr. Crawford’s Report. Indeed, the respondent has requested and obtained from Mr. Crawford, the 2014 Update to his 2011 Report.

[15] The applicant says the respondent cannot call Mr. Crawford as a witness or rely on his Report or Update at trial.

The Issue

[16] The issue on this motion is whether, notwithstanding the fact that the applicant retained Mr. Crawford, but given that the applicant does not intend to call Mr. Crawford as a witness, the respondent may call Mr. Crawford and seek to rely on his evidence (and Reports) at trial.

Analysis

[17] There are essentially three arguments advanced by the applicant in opposition to the respondent’s motion: 1) litigation privilege/conflict; 2) contract; and 3) relevance/reliability.

[18] The applicant says his counsel retained Mr. Crawford. The applicant paid for Mr. Crawford’s report. This was done as part of the applicant’s case in this proceeding. He is the client. He should get to decide whether Mr. Crawford testifies.

[19] The applicant also argues that Mr. Crawford’s disclaimer in the Report, and the Canadian Uniform Standards of Professional Appraisal Practice Rules, show that only the applicant, as the client, may rely on Mr. Crawford’s report.

[20] Finally, the applicant says that the Report is rife with errors such that it is entirely unreliable. It would be a “waste of taxpayers’ money and the court’s time” to permit Mr. Crawford to testify, he says.

Privilege/Conflict

[21] While an expert may owe a duty to a client who retains him in certain circumstances, the principles in McDonald Estate and related conflicts cases must be applied cautiously in contexts other than solicitor client privilege. The role of an expert witness who does not participate in litigation planning or strategy does not lend itself to the type of analysis applied to the role of the solicitor, Rumley v. British Columbia, 2002 BCSC 405, [2002] B.C.J. No. 565 (S.C.).

[22] In relation to a witness of fact, the law is plain. There is no property in a witness. As Lord Denning said in Harmony Shipping Co. S.A. v. Saudi Europe Line, [1979] 3 All E.R. 177 (CA):

the reason is because the court has a right to every man’s evidence. Its primary duty is to ascertain the truth. Neither one side nor the other can bar the court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication to him. In no way can one side prohibit the other side from seeing the witness of fact, from getting the fact from him and from calling him to give evidence or from issuing him with a subpoena.

[23] Similarly, “there is no property in an expert witness as to the facts he has observed and his own independent opinion on them.” There being no such property in a witness, it is the duty of a witness to come to court and give his evidence insofar as he is directed by the judge to do so. An important qualification on this principle, however, is that the expert cannot be compelled to answer any questions which infringe the rule of litigation privilege.

[24] There are three main guidelines which govern when an expert may be disqualified when called by the opposing party:

(1) there is no property in a witness;

(2) even though a party has retained an expert and communicated privileged information to the expert, the expert can still provide an opinion for an opposing party and may be called as a witness at trial; but

(3) the expert may not be questioned concerning any privileged material he or she received from the opposing solicitor or disclose any opinion given in confidence to the opposing solicitor.

See, Labbee v. Peters, [1996] A.J. No. 809 (Q.B.).

[25] An elaboration of the third principle is found in Cousineau v. St. Joseph’s Health Centre, [1990] O.J. No. 2594 (H. C.), where the court found that:

…just because plaintiff’s counsel has consulted an expert and has provided that expert with data, including confidential data, such expert is not debarred from giving testimony in the action for the defendant. What that expert is debarred from giving is any part of the communication emanating from plaintiff’s counsel to that expert which, in itself, involves the “work product” of counsel.

See also the excellent analysis of this issue by Penny Jones J. in Children’s Aid Society of Toronto v. D.M., 2001 ONCJ 32832 (ON CJ), [2001] O.J. No. 4425 (O.C.J.) at paras. 20-29.

[26] In the present case, the respondent has known about Mr. Crawford’s retainer virtually from the outset. Indeed, at one stage the applicant sought reimbursement from the respondent for the cost of retaining Mr. Crawford. That issue was resolved on the basis that the applicant would pay Mr. Crawford’s fee initially, without prejudice to his right to seek reimbursement at a later date.

[27] More importantly, when asked to produce Mr. Crawford’s Report, the applicant willingly complied. Any claim to work product privilege, over the Report itself at least, was unambiguously waived.

[28] There is no evidence that Mr. Crawford was given confidential, privileged information to enable him to form his opinion. Indeed, it in a straightforward valuation assignment such as this, it seems unlikely that any such information would have been necessary.

[29] This case is unlike some of the reported cases where the expert was involved in litigation planning or strategy. In this case, there is no evidence that Mr. Crawford was involved in confidential discussions, decisions or planning concerning the litigation that might compromise his independence or the applicant’s ability to prosecute his application.

[30] In any event, if, during the trial, any mention is made of any such communications, the trial judge will be in a position to prevent testimony that might compromise the applicant’s work product litigation privilege.

[31] Mr. Crawford’s evidence is relevant to an important issue in this proceeding and, if admissible, is potentially helpful to the court. I find there is no property in Mr. Crawford’s status as a witness as to the facts he observed and his own independent opinions based on those facts. There is, in the circumstances, no basis for disqualifying him as a witness able to be called by the respondent, subject to being properly qualified at trial.

Contract

[32] Under the heading “Assumptions and Limiting Conditions,” the Report states, under para. 1:

It is not reasonable for any person other than the client to rely upon this appraisal without first obtaining written authorization from the client and Appraisal Group Inc. … This report is prepared on the assumption that no person will rely on it for any other purpose and that all liability to all such persons is denied.

[33] Para. 11 of these limiting conditions also states:

The only party who may rely on the opinion expressed in this report is the client, even where the report is for financing purposes. Where the client is a lender, its borrower and the loan insurer may also rely on this report. This report assumes that only the addressee will rely upon it, and only for the intended use stated herein. No one else may rely on this report without the written consent of the appraiser, which we may not provide retroactively. We expressly deny any legal liability for unauthorized reliance or for any other use.

[34] The Rules of the Canadian Uniform Standards of Professional Appraisal Practice contain related language. Rule 7.2 deals with the “Client and Intended Users.” It provides that a third party receiving a copy of the report does not become a party to the client relationship. It goes on to state:

A party receiving a copy of an appraisal report does not become an intended user unless authorized by the appraiser and clearly identified as the intended user.

[35] The applicant argues that the limiting conditions contained in the Report itself, and the language of the Rules governing appraisers in Ontario, prohibit Mr. Crawford from testifying without the applicant’s consent, as matter of contract.

[36] I am unable to agree with this argument. In my view, paras. 1 and 11 of the limiting conditions of the Report are for the protection of the appraiser, not the client. The purpose of these limiting conditions, and the similarly worded Rule, is to protect the appraiser from damage claims by strangers to the client relationship who may have seen or been given the appraisal information. It is simply a means of dealing with the “indeterminate liability to an indeterminate class for an indeterminate amount” problem frequently encountered in tort law.

[37] In my view, therefore, neither the limiting conditions in the Report nor the applicable professional Rules prohibit Mr. Crawford from testifying at the behest of the respondent when he is, at law, otherwise capable of doing so.

Reliability

[38] Finally, the applicant argues that Mr. Crawford’s report contains a number of serious mistakes and unfounded or incorrect assumptions. These flaws are, the applicant says, so grave as to render the Report completely unreliable.

[39] If Mr. Crawford is called by the respondent, of course, the applicant will be at liberty to challenge Mr. Crawford’s qualifications and to cross-examine Mr. Crawford on all aspects of his Report. Whether or not Mr. Crawford has done a good job, or whether or not his opinions are reasonable or well-founded, is not a matter of capacity to testify at the behest of the respondent. Rather, this is a matter going either to the admissibility of his report or to the weight to be attached to it.

[40] I find the applicant’s objection on this ground is premature. Mr. Crawford has, superficially at least, the qualifications to do what he did. Any challenge to admissibility based on qualifications, or cross examination on the merits of his Report or Update, are best left to the trial.

[41] I would not disqualify Mr. Crawford from testifying based on the applicant’s arguments about the allegedly substandard quality of the work.

Conclusion

[42] For these reasons, the respondent’s motion is granted. The testimony shall be subject, however, to the qualifications outlined earlier in these Reasons.

Costs

[43] The costs of this motion are reserved to the trial judge, to be dealt with as part of the costs of the action.

Trial Scheduling

[44] I am very concerned about the respondent’s request that the March 30, 2015 trial be adjourned because Mr. Crawford is not available in April.

[45] A further trial management conference is scheduled before Kitely J. in a few days. The respondent must come to that trial management conference with a sworn affidavit from Mr. Crawford explaining his schedule and specifying when and why he is not available during the 3 to 4 weeks currently scheduled for the trial in April. Mr. Crawford must also be available by telephone during the scheduled trial management conference in case it is necessary to consult with him on this matter.

Penny J.

Date: February 23, 2015