Canada: Expert Testimony In Environmental Claims - Participant vs Litigation Experts

Last Updated: May 7 2015
Article by Tamara Farber

The Ontario Court of Appeal has recently discussed the drafting of expert reports and the nature of expert testimony (respectively in Moore v Getahun, 2015 ONCA 55 (CanLII) and Westerhof v Gee, 2015 ONCA 206 (CanLII)). Neither of these cases related to environmental claims, but both have implications relating to the rules under which experts might testify in environmental cases. This article will discuss the Westerhof case in that vein. The question at issue addressed the very core of what constitutes an "expert" witness: to whom do the expert witness provisions in the Ontario Rules of Civil Procedure apply? Do they apply to anyone offering an expert opinion?

Often in environmental claims more than one expert will testify at trial. For example, in a contaminated land case, the expert who carried out the remediation might testify, while an opposing expert might be called to give an opinion as to whether that remediation was carried out appropriately. Both involve expert opinions that might include the following:

  • the first witness, a "participant" expert (a term used by the Court of Appeal in Westerhof), might provide trial testimony including opinions as to groundwater flow direction, the extent of contamination, hydraulic conductivity or the ability of contamination to move within subsurface conduits or fractures. Specific remedial method analysis may have been done to assess which method should have been used.
  • the second witness, a litigation expert, might provide trial testimony offering different opinions from the first expert concerning groundwater flow, hydraulic conductivity, contaminant migration, whether the first expert's analysis of the remedial options was flawed, or whether the implementation of those options was flawed.

The question is: are both experts subject to the same requirements under the Rules? The Ontario Court of Appeal says no.

In Westerhof,the plaintiff was injured in a car accident. He was treated by a number of experts, including his family doctor, a psychiatrist, a chiropractor, a neurologist, an orthopaedic surgeon, and others. Many of these witnesses were not considered to be "expert witnesses" by Westerhof's lawyer for the purposes of trial and their evidence did not comply with Rule 53.03 (which sets out specific requirements for the content of an expert report). The trial judge excluded much of this evidence as being expert evidence that was non-compliant with the Rules and dismissed the action.

Westerhof appealed to the Divisional Court. In dismissing the appeal, that Court noted that the "important distinction is not in the role or involvement of the witness, but in the type of evidence sought to be admitted. If it is opinion evidence, compliance with Rule 53.03 is required; if it is factual evidence, it is not." The Divisional Court concluded that "evidence of diagnosis and prognosis were opinions because they involve inferences from observed facts and may turn out to be either right or wrong. Thus, although a treating physician may give evidence of his or her diagnosis to explain the treatment provided, such evidence is not admissible for the truth of its contents. Rather, it is admissible only to understand the basis of the treatment provided."

The decision was then appealed to the Ontario Court of Appeal. The appeal raised the question whether Rule 53.03 applied only to experts described in Rule 4.1.01 and Form 53 - being those "engaged by or on behalf of a party to provide opinion evidence in relation to a proceeding" - or whether it applied more broadly to all witnesses with special expertise who give opinion evidence. As the Court of Appeal stated, "this broader group of witnesses would include, for example, treating physicians who form opinions based on their participation in the underlying events [referred to in these reasons as "participant experts"] rather than because they were engaged by a party to the litigation to form an opinion."

The Court of Appeal granted the appeal and ordered a new trial. Writing for a unanimous panel, Madam Justice Simmons disagreed with the Divisional Court's conclusion that the type of evidence (fact or opinion) is the key factor in determining whether Rule 53.03 applies. Instead, she held that a witness with special skill, knowledge, training, or experience, who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with Rule 53.03 if:

  • the opinion to be given is based on the witness's observation of or participation in the events at issue; and
  • the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and expertise while observing or participating in such events.

Simmons J. A. termed these witnesses "participant experts". The Court of Appeal was particularly influenced by the wording of Rule 4.1.01 which relates to "experts engaged by or on behalf of a party to provide [opinion] evidence in relation to a proceeding" in concluding that the rule was not intended to cover participant experts. A party does not "engage" an expert to provide opinion evidence in relation to a proceeding simply by calling the expert to testify about an opinion the expert has already formed. Similarly, the Court noted that the requirement in Rule 53.03(2.1)3 that an expert's report set out "the instructions provided to the expert in relation to the proceeding" makes it clear that Rule 53.03 only applies to litigation experts. A party does not provide instructions to a participant expert in relation to the proceeding because the expert has already formed their opinions. The Court was mindful of the potential for a participant expert to stray into opinion evidence falling outside of the opinions formed from their observations or participation; those opinions would have to comply with Rule 53.03.

The analysis of the expert evidence in the Westerhof case is equally applicable in contaminated land cases. The nature of the expert evidence in contaminated land litigation is not distinctive, per se. Whether medical, engineering, geotechnical or hydrogeological opinions are offered, the issue is when the opinion was formed. The "participant expert" formed the opinion at the time of the undertaking. The participant expert could testify, therefore, without a report, without a certification in advance attesting to the expert's impartiality or duty to the court, but presumably with some documents demonstrating their opinions were formed during their participation in, for example, remediation.

Consider, however, if litigation had been contemplated when the participant expert was engaged in a contaminated land case. Counsel might consider, if litigation is contemplated and counsel is engaged at this early stage, retaining a separate expert – a peer review or advisory expert - at the time of the retainer of the participant expert to consider whether the opinions formed by the participating expert might be called into question by a future opposing litigation expert. There are obviously practical limiting factors to such an approach. The cost of retaining a peer reviewing expert at the time of the event might be prohibitive, the likelihood of litigation might be small, the relationship between the client and the participant expert might be strained by the involvement of a peer reviewer, and the timing of decisions made by the participant expert might be constrained by the peer reviewer. This could lead to delays and possible effects on migrating contamination

Practically, a participant expert might never have to comply with the Rules. It makes sense to favour a decision to allow those experts to do what they were retained to do - participate in the process. If they ever have to testify, their evidence will be admissible for the truth of the events and for the truth of the opinions that formed the basis for their actions and decisions. There may still be room for nuances when litigation is contemplated early in the process. For now, however, the Court of Appeal has spoken. Apparently, timing is everything.

Footnotes

1 2013 ONSC 2093 (CanLII) at para 21.

2 2015 ONCA 206 (CanLII) at para 58.

3 supra, at para 6.

4 supra, at para 82.

5 supra, at para 83.

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.

Authors
Tamara Farber
Similar Articles
Relevancy Powered by MondaqAI
Rogers Partners LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Rogers Partners LLP
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