Canada: Who's A Good Expert Witness?

Last Updated: January 4 2010
Article by Dianne Saxe

Monarch Construction v. Axidata1 and WCI Waste Conversion Inc. v. ADI International Inc.2 ( are both classic cases of competing experts, and how the courts choose between them. They provide excellent warnings for any expert witness in an environmental case.

The Monarch Construction lawsuit arose from an old computer punch card facility on Commander Boulevard, Toronto, a street already famous for pollution precedents. The case had enough complications for a soap opera: three lawsuits, two third-party claims, four counterclaims, and $4 million in damages, plus a flock of lawyers and consultants. The trial pitted the original card manufacturer (Control Data), against the management group (Axidata) that bought the division in 1986.

Both Control Data and Axidata had stored waste toluene, from cleaning the presses, in an underground concrete storage tank. Unfortunately, the tank was designed (and approved by the landlord and regulators) only for emergency spill containment, not for long-term storage. Over the years, much toluene escaped, polluting the property and its neighbours.

Judge Frank ruled that Control Data had printed 90% of the cards, had probably put 90% of the toluene into the tank, and should pay 90% of the cleanup costs. Axidata, which printed the last 10% of the cards and took a long time to do the cleanup, had to pay the remaining 10%. The landlords were cleared of responsibility.

The decision is a fascinating one for anyone engaged in complex, multi-party cleanups, where facts are unclear, decisions take forever, consultants can't agree and contamination keeps showing up. And it's an encouraging one for plaintiffs. The judge took a refreshingly commonsense approach to the Control Data's obstacles and objections, brushing aside lost documents, faded memories, delays and honest mistakes.

Judge Frank was equally direct in her evaluation of the three experts who testified on hydrogeology: Richard Lewis, from ERM in Boston, for Axidata; and Dennis Lafleur, from Aqua Terre, and Roger Woeller, from WESA, both for Control Data. Judge Frank's reasons for preferring Mr. Lewis' evidence are instructive:

Richard Lewis ... has a M.Sc. in geology and is a Certified Professional Geologist through the American Institute of Professional Geologists, specializing in hydrogeologic evaluations of hazardous waste releases. He provides his services throughout the world. He has expertise specific to hazardous waste investigations and remediation practices and has given expert evidence with respect to these. He has extensive experience in transport modeling including modeling of toluene. His experience with underground storage tanks extends over thirty years. 

[49] ... The first [report] is with respect to the cause of toluene contamination and the course it took traveling through the subsurface. The underlying assumptions in this report accord with the evidence. The analysis is transparent and the assumptions upon which it is based are clearly articulated. While a number of errors in the report were identified and acknowledged by Mr. Lewis, they do not undermine the reliability of the report generally...

[51] ... Control Data submits that the weight to be given his evidence with respect to the reasonableness of the remediation and its costs should be limited by the fact that ERM took over the implementation of the RAP in 2002 ... [and] continues to be involved in its implementation...

[52] I agree .. that Mr. Lewis' evidence regarding the implementation and costs of the final stages of the RAP and the ERAP must be examined carefully, not as the evidence of an independent expert, but rather as someone defending his own position. ...

[53] ... Dennis Lafleur ...has a M.Sc. in civil engineering. He is the president and principal shareholder of Aqua Terre Solutions Inc., which provides a range of environmental services including site assessments and remediations, primarily for petroleum companies. He has written on the matter in issue, that being the remediation of ground water containing hydrocarbons.

[54] Mr. Lafleur's report lacks transparency in that it does not disclose all of the underlying assumptions or evidence relied on nor the method by which he arrived at his conclusions. While his oral evidence was of some assistance in providing the information necessary to test the validity of his conclusions, it was not sufficient. Further, his assumptions did not all accord with the evidence and were arrived at with inadequate background information. Mr. Lafleur had no information with respect to the use of the tank prior to the 1986 sale by Control Data. My impression is that in giving his evidence Mr. Lafleur was more anxious to support the conclusions in his report and establish that he was right than he was to assist the court with truth finding. ...

[55] Roger Woeller was retained by Control Data to review Mr. Lewis' reports. He has a M.Sc. in hydrogeology and is registered as a professional geologist in a number of provinces. Like Mr. Lewis, he has provided services worldwide. ...While Mr. Woeller is obviously highly qualified, based on the evidence before me, he does not have the same degree of directly relevant experience on the matters in issue as Mr. Lewis

[56] The extent to which I could place reliance on Mr. Woeller's evidence was further undermined by what I find to be his taking on the role of advocate. His oral evidence was far more supportive of Control Data's position than was his report. .... Overall, where their evidence conflicts, I prefer the evidence of Mr. Lewis.[emphasis added]

On appeal to the Court of Appeal, Judge Frank's decision was upheld in full.

WCI Waste Conversion Inc. v. ADI International Inc. ( also illustrates how expert witnesses who are too eager to please can destroy themselves and their client. This was a breach of contract dispute between partners who developed a composting facility for the Island Waste Management Corp. in Brookfield, Prince Edward Island. WCI was the composting expert; ADI brought financial muscle and access to bonding. After years of litigation, WCI was awarded $4,306,339 plus costs for damages caused by ADI's "greed", bad faith, and repudiation of the construction and operating contracts.

Much of the case turned on expert opinion on the design and how to manage acidic feedstock. ADI offered two experts, Dr. Hallee and Dr. Kelly. Justice Campbell found that ADI had "played a significant role" in "tailoring" their expert reports; as a result, he found them useless:

[224] I have an even greater concern with respect to the overall credibility and independence of that report....David Crandall of ADI was intricately involved in outlining, drafting, revising, and editing Dr. Hallee's "expert" report...

[ 228] An expert report is only of benefit to the court if it is independent and unbiased and is not unduly influenced by someone having a pecuniary interest in the contents of that report. ADI's involvement in drafting and manipulating Hallee's report destroyed any credibility the report may have had...

[243] An expert is to provide an independent and unbiased opinion to the court in respect of a subject matter with which the expert is more familiar than the court. When an expert fails to guard his independence and allows himself to be prostituted to the will of his client, he sacrifices his role as an expert before the court. That is what has happened in this case. ... It is my conclusion that the Kelly report has no credibility and is of no value to this court and I reject it.

The judge found it particularly galling that the experts blindly repeated their client's views, which ADI then purported to rely on as expertise:

[213] Notwithstanding that Dr. Hallee was relying strictly on ADI for information about the aeration system, and notwithstanding that Dr. Hallee told ADI that he was not an expert in aeration systems, and had not read the ECS operating manual, ADI was interested in receiving confirmation from him as some outside expert (so-called) that the aeration system had to be modified. ...

[236] Kelly adopted similar false assumptions... he received that erroneous information from ADI... and did not do any of his own due diligence. Kelly confirmed on cross-examination that he was not an expert on the iteration system or the containers. He only put that information in his reports because ADI asked him to do so...

Experts must strenuously guard their independence:

[242] opposed to being an expert's report upon which the court can rely for assistance, the report is, in large measure, a reflection of ADI's manipulation of information driven by the objective of "tying WCI to responsibility" for the facility's deficiencies, while exonerating ADI. Kelly relinquished his authorship to ADI. In critical subject areas under review at this trial, he did not provide expert analysis but instead adopted "facts" and viewpoints fed to him by ADI without conducting any due diligence or applying independent thought or assessment to the information provided. 

[244] Any time an expert is engaged, the party seeking the expertise must provide background information and documentation together with an explanation of the theories in issue or the question upon which the expert is to opine. It is not uncommon for the expert to request additional information or clarification. However, when the party engaging the expert seeks to control or direct or unduly influence the conclusions reached in the expert's report, that party has diminished the credibility and reliability of the report, and of itself. When an expert succumbs to such influences, he or she compromises their own integrity and the report rendered is of little or no value.

WCI won, largely because Justice Campbell felt he could trust the independence of their experts: 

[131] I found MacPherson's assumptions to be reasonable and realistic and his calculations to be accurate. His testimony was clear and direct and he was unshaken on cross-examination. For example, at one point during cross-examination, ...counsel for ADI suggested to MacPherson, "Yes, and you followed the instructions Mr. Kerrigan gave you." MacPherson immediately replied, "I don't follow anybody's instructions. That's the kiss of death in this business Mr. O'Neil." I note this comment and its sharp contrast to the conduct of the two experts ADI used... 

[246] ... Mr. Gould presented an independent and unbiased assessment of the matters he considered and upon which he was asked to report. ... he does not strain to make statements favorable to WCI, nor ... does he ... shy away from or minimize statements that may reflect negatively on the design criteria or operating performance of WCI. I found his responses on cross-examination to be direct and frank and the explanations provided for in his conclusions were rationally supported by the facts he reviewed. He did not become an advocate for WCI as Hallee and Kelly did for ADI.

An expert who gives up his/her independence to become an advocate loses all credibility, and becomes worse than useless.


1.Monarch Construction Limited v. Axidata Inc., 2009 ONCA 166 (CanLII)

2.WCI v. ADI, 2008 PESCTD 40 (CanLII)

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

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

Dianne Saxe
In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.