This mid-trial ruling in the context of a breach of contract
case serves as a reminder that, at least in British Columbia,
mining companies may not be able to rely on their own employees to
provide opinions about specialized mining processes. Barring
exceptional circumstances, independent experts should be
In 2007, American Creek Resources Ltd. (American Creek) and
Teuton Resources Corp. (Teuton) entered into an option agreement
related to Treaty Creek, a property in northwestern B.C. that was
owned by Teuton. Under the agreement, American Creek would earn a
51% interest in the property if it spent a specified amount on
exploration expenditures. Teuton agreed that American Creek had
spent more than the specified amount, but disagreed that all
amounts should qualify as exploration expenditures. In support of
its position, Teuton's president attempted to give evidence on
a number of technical subjects, including his opinion that certain
drill patterns used by American Creek did not amount to
"exploration" as that term was used in the agreement,
such that related expenditures could not qualify. American Creek
challenged the admissibility of much of the witness's evidence
on the grounds that it was inadmissible opinion.
The Court reviewed the applicable law, confirming that since the
witness was an employee of a party he could not be qualified as an
expert. It may still be possible to receive lay opinion evidence
from the witness, but only if a four-part test was satisfied: (1)
the witness had personal knowledge of the relevant facts, (2) the
witness was in a better position than the judge to draw the
inferences he did, (3) the witness had the "experiential
capacity" to form the opinion he did, and (4) the witness
could not as accurately describe the facts without stating his
In the circumstances of this case, the four-part test was not
satisfied and Teuton's president was precluded from providing
opinion evidence. The Court noted that the evidence sought to be
adduced did not consist of "everyday inferences from observed
facts," but rather, concerned matters of specialized,
technical expertise. To be admissible, this type of evidence must
come from a qualified expert who certifies that he is not an
advocate for either party.
Under the Income Tax Act, the Employment Insurance Act, and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions or GST.
Under the Income Tax Act, the Employment Insurance Act, the Canada Pension Plan Act and the Excise Tax Act, a director of a corporation is jointly and severally liable for a corporation's failure to deduct and remit source deductions.
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