Experts: You are Not a Hired Gun

If a lawsuit involves issues that require specialized knowledge, an expert is hired to assess the issue, prepare a report and, possibly, provide testimony at trial.

Providing expert services is a growing career path for engineers. There are a number of forensic engineering companies across Ontario, and many opportunities for seasoned engineers to be retained as experts. If this is a chosen career path, engineers may feel the need to please their clients, lawyers, in order to attract business. This raises the concern that the expert will be bias to the client’s preferred position. This article serves as a reminder of an expert’s duty to remain fair, objective and non-partisan.

Recently, our legal system attempted to address the concern of expert bias. In November 2007, the Honourable Osborne released a Civil Justice Reform Project: Summary of Findings & Recommendations. The report noted the “common complaint was that too many experts are no more than hired guns who tailor their reports and evidence to suit the client’s needs” and made several recommendations to remedy the issue. The recommendations were adopted in the 2010 amendment of the statute which outlines the procedures and standards of civil lawsuits, the Rules of Civil Procedure (the “Rules”) in Rules 4.1 and 53.03.

Rule 4.1.01 (1) states that “it is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules, (a) to provide opinion evidence that is fair, objective and non-partisan”. Further, Rule 4.1.01(2) states that “the duty in [Rule 4.1.01(1)] prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged”.

Rule 53.03 outlines the process and standards for expert reports. 53.03(2.1) lists the content required in written reports and includes a key requirement, that an expert must sign an acknowledgement that the expert’s duties have been satisfied as stated in Rule 4.1.

In 2014, Moore v. Getahun, 2014 ONCS 237, the Superior Court of Justice, ruled that “the practice of discussing draft reports with counsel is improper and undermines both the purpose of Rule 53.03 as well as the expert’s credibility and neutrality”. This point was widely criticized by the legal community and several legal advocacy groups intervened in Moore’s appeal.

The Court of Appeal, 2015 ONCA 55, stated that lawyer and expert consultation was “necessary to ensure the efficient and orderly presentation of expert evidence and the timely, affordable and just resolution of claims”. The Court noted several safeguards that ensure partiality, such as the ethical and professional standards of the legal profession which prevent lawyers from interfering with experts, and the ethical standards of professional bodies which place an obligation upon their members to be independent and impartial when providing expert evidence. The Court also referenced the Professional Engineers Ontario’s guideline entitled “The Professional Engineer as an Expert Witness” dated September 2011. The guideline is a great resource and can be accessed at www.peo.on.ca.

In White v Abbot, 2015 SCC 23, the Supreme Court of Canada, concluded that an expert’s independence and impartiality is a factor in determining if the expert’s evidence is admissible. The threshold question was stated as: “whether the expert’s opinion would not change regardless of which party retained him or her”. This is a great question for an engineer to ask themselves when providing expert services to ensure they are being fair, objective and non-partisan.

The article can also be found here: http://www.corestone.ca/engineering-experts-not-hired-gun/