Canada: A Property Value Witness Without Property In The Witness

Last Updated: November 25 2011
Article by Carolyn Brandow and Ken Strong, CohenHighley

This article was originally published in the Ontario Expropriation Newsletter, Fall 2007

CASE COMMENT

Yorkville North Development Ltd. v. Toronto (City):

A Property Value Witness Without Property in the Witness

Expropriation proceedings often become battles of experts. In such battles, the opinions and evidence of the right expert can be determinative. Before finding Mr. or Ms. Right, a party may consult several experts, some of whom may later be consulted by the opposing party. Can one party's Mr. Right be disqualified because he was previously onsulted by the opposing party, who felt he was Mr. Wrong?

In the recent case Yorkville North Development Ltd. v. Toronto (City)(2007), the City thought that Mr. Robert Robson was Mr. Right. In 1999, however, Mr. Robson attended a meeting with an officer of the claimant. Allegedly, the strengths and weaknesses of the claimant's case were discussed. Subsequent to the meeting, Mr. Robson refused to accept the retainer, as documented by a letter from the claimant's solicitor. Mr. Robson had no recollection of that meeting. There was no file that could be found that indicated that Mr. Robson had obtained documents relating to the matter at all, let alone privileged and confidential material. The claimant brought a motion to prohibit Mr. Robson from appearing as an expert witness for the City, arguing that Mr. Robson had previously met and obtained confidential information about the claimant's case and that his attendance before the Ontario Municipal Board on behalf of the City would therefore be illegal, unethical, and prejudicial. The Board concluded that there was no indication that confidential information had been imparted or that the information would be of any value in formulating an opinion that is material. The Board dismissed the motion, thereby permitting Mr. Robson to ontinue his retainer with the City to provide advice on property value and to appear before the Municipal Board.

The touchstone in such cases is the principle that there is no property in a witness, as set out by the English Court of Appeal in Harmony Shipping Co. S.A. v. Saudi Europe Line Ltd (1980). Setting aside expert witnesses and starting with witnesses of fact, the Board has a right to every person's evidence in furtherance of the Board's primary duty to ascertain the truth. One side cannot prohibit the other side from meeting a witness of fact, getting the facts, and calling the person to give evidence. It is a fundamental maxim that the public has a right to every person's relevant evidence: R. v. McGowan, (Ont. S.C.J., 2005). Turning to expert witnesses, many of the communications between a lawyer and an expert witness will be privileged and protected from disclosure. These communications cannot be given in evidence to the Board. Subject to this qualification, an expert witness is in the same position as a witness of fact; Cousineau v. St. Joseph's Health Centre, (Ont. H.C., 1990). Despite more cynical views that clothe experts as advocates, it must be remembered that an expert is not called for or against a party, but is called to provide an opinion to help the Board: Loblaw Properties Ltd. v. Brampton (City) (O.M.B., 2001). In pursuit of the search for truth, the Board is entitled to have the facts observed by the expert adduced before it and to have the expert's independent opinion on those facts: Harmony Shipping. Irrespective of which party has retained the expert witness, if that expert has material and relevant evidence to give, the expert is a compellable witness and the Board is entitled to have the expert's independent opinion, exclusive of privileged communications: R. v. McGowan. Further, the administration of justice would be undermined if a rich client could consult all the acknowledged experts in the field nd then say to each of them "you cannot give evidence against me": Harmony Shipping.

The Board in Yorkville North Development Ltd. relied on the decision of the Ontario Divisional Court in Cairns v. Mississauga (City) (Ont. Div. Ct., 2006). In the Cairns case, the lawyers for one party communicated with and provided information, including a written summary of their intended case, to a potential expert witness. All of this information had been turned over voluntarily and gratuitously to the expert. The expert declined to act for that party, but subsequently agreed to act for the opposing party. Consistent with the principles set out above, the Board refused to disqualify the expert witness, and leave to appeal this decision was refused by the court. The court commented that one party cannot baldly assert disclosure of confidential information to a potential expert who declines a retainer, and expect the expert will be automatically disqualified on the basis of loss of public confidence in the judicial system. Indeed, finding the underlying information to be confidential in a public matter like an expropriation is apt to be a difficult hurdle. In Yorkville North Development Ltd., there was no indication that confidential information had been communicated to Mr. Robson, and after applying Cairns, the Board refused to disqualify him s a witness.

It must be emphasized that to ensure a fair hearing when the expert has been consulted in the course of litigation by the opposing party, the Board must be alert to stop expert testimony that reveals privileged communications passing between the lawyer and the expert. In this regard, the bundle of confidential knowledge held by the expert in his or her notes, file, and memory is determinative. The Cairns case rested near one end of this knowledge spectrum. The expert in Cairns possessed information that may have been privileged. The risk of disclosure of confidential communications existed but because the parameters of the confidential and privileged communications were known, the knowledge of the privileged communications could be isolated and quarantined, thereby permitting both a vigorous search for truth and a fair trial. When one slides down the knowledge spectrum, however, the expert is more at risk of disqualification. An expert who has spotty notes and records, some recollection of the confidential information, and is unable to parse in his or her mind the privileged communications from other facts and discussions is subject to disqualification. In this situation, the goal of a fair trial process must trump the search for truth. The Board cannot ensure that the privileged communications will not unwittingly be revealed in the expert's evidence. Likewise, even further down the knowledge spectrum, it would be an impossible task to enforce a rule which permitted a person who had received confidential and privileged communications to act for an opposing party if the expert did not remember the communications and information. The Board cannot verify the expert's lack of memory or ensure that the expert's memories are not triggered at some point in the trial process. There is also a risk that the forgotten information could nonetheless influence the expert in the formation of his or her opinion, or be nadvertently disclosed. Fairness dictates disqualification: Burgess et al. v. Wu (Ont. S.C.J., 2003).

It is notable that the Board avoided this difficulty in Yorkville North Development Ltd. by its finding that no confidential information had been communicated to Mr. Robson. Had the Board found otherwise and the communication otherwise fell within the scope of litigation privilege then Mr. Robson should have been disqualified. The Board further held that there was no indication that any of the information that was imparted to Mr. Robson would "be of any value to formulate an opinion that is material". By itself, this latter reason should be insufficient to save Mr. Robson. First of all, it is wholly speculative. Secondly, it is irrelevant to the analysis as set out above. Since Mr. Robson had no recollection of the meeting, had he received confidential communications, he would have been disqualified irrespective of whether the particular communication would at some future date become relevant in determining an opinion of value. The critical factor is the receipt of the privileged and confidential communication, not whether the communication was material or would become material to the ormation of an opinion.

These cases and principles also paint practical lessons for lawyers, experts, and clients. For lawyers, particularly in light of the public nature of proceedings before the Board, a bald assertion that confidential information had been disclosed to a potential expert will be insufficient to secure the expert's disqualification. For experts, it is critical to keep accurate records of all meetings with potential clients, and not simply wait until the retainer is secured and the file opened. Clients, insofar as they are able to do so, should require the experts they retain to have in place a system that identifies potential conflicts of interest so that these potential conflicts can be identified and considered at an arly stage in proceedings.

www.lerners.ca

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions