Project Management and Published by Revay and Associates Limited Construction Claims Services Volume 25 Number 2 June 2006

EXPERT EVIDENCE by Jean-Pierre Dépelteau When all other methods of conflict resolution fail, the last resort is to seek recourse in a judi- Fraser Milner Casgrain cial setting, be it in court or arbitration if the contract allows for it. Jean-Pierre Dépelteau Much of today’s construction litigation involves a great deal of technical evidence which is often 1. INTRODUCTION responsible for the appreciation of factual challenging for the presiding judge. As such, evidence and the drawing of appropriate the retention and reliance upon expert witnesses Society’s rapid advancement in new tech- conclusions. The rule willing that opinion- has been steadily increasing. In the context of nologies such as engineering, medicine and based testimony is prohibited is based on construction litigation, this increased reliance physics has created a world of specialized the principle that this opinion would have the can be partly due to an increase in the knowledge. complexity of claims, delay analysis techniques, effect of usurping the judge’s functions. The productivity analyses and quantum of damages. The construction industry has not escaped courts have nonetheless recognized that The purpose of the expert witness is to provide this effervescence. Rather, it is frequently at there exists an exception to this principle: the origin of significant technological break- opinion evidence on matters beyond the “With respect to matters calling for special common knowledge of the judge. throughs. Consequently, construction law knowledge, an expert in the field may conflicts are subject to a litany of questions, To be effective, the expert must maintain his or draw inferences and state his opinion. An each more scientific and technical than the her objectivity. Advocacy is the role of legal expert's function is precisely this: to pro- next. Under these circumstances, it is not counsel. vide the judge and jury with a ready-made surprising that construction law trials are an inference which the judge and jury, due to The article by Jean-Pierre Dépelteau delves opportunity to see numerous experts testify the technical nature of the facts, are deeper into the role of an expert and expert on subjects as varied as the specialties unable to formulate.” An expert's opinion testimony. found on a construction site, from soil analy- is admissible to provide the Court with sci- sis to the building of a site, including struc- Jean-Pierre Dépelteau is a senior partner, vice- entific information which is likely to be out- ture, mechanics, electricity, environment and chairman and a member of the Montreal Board side the experience and knowledge of a of Directors of Fraser Milner Casgrain LLP. He even project management. judge or jury. If on the proven facts a judge has developed, over 30 years of practice, a This marked augmentation over the past or jury can form their own conclusions unique expertise in construction law. He advis- decades for the need of experts in the justice without help, then the opinion of the es owners, contractors, specialized sub-con- system has simultaneously led to growing expert is unnecessary (Turner (1974), 60 tractors and suppliers on the preparation, nego- tiation and drafting of all types of construction concerns as to the mission and impartiality Crim. App. R. 80, at p. 83, per Lawton 1 contracts, project management issues, risk of experts. As a result, courts have no choice L.J.).” (our underlines) [translated by analysis, rules related to the awarding of con- but to develop rules and directives defining author] and framing the nature and scope of an tracts, public-private partnerships, preparation The expert witness is thus a person who, by expert report, as well as the duties and pre- and review of claims, construction bonds, legal virtue of his training and/or experience in a rogatives of an expert when their services hypothecs, insurance matters, contractual technical or scientific field, is competent to have been engaged by an attorney in the liability, mediation, arbitration and judicial give his opinion on a particular subject in a litigation. Mr. Dépelteau is a member of several context of a conflict. field of precise expertise. associations, namely in relation to the construc- This article summarizes the principal param- tion industry. He has been recognized by We have recourse to expert witness testimo- eters framing an expert’s work, from the Lexpert as one of the best 500 lawyers in ny to enlighten the court on any technical Canada and he will be listed in the upcoming preparation of his expert report to his testi- issues, whether it be medicine, statistics or 2006 The Best Lawyers in Canada. He is invited mony before the courts bunaux. engineering; specific fields where judges on a regular basis to lecture at seminars on con- have only vague understanding. As such, struction law. Mr. Dépelteau was called to the 2. THE EXPERT’S ROLE with the opinion report and/or data provided Barreau du Québec in 1970. In principle, it is forbidden to give an opinion- by one or more experts, the judge will be in Mr. Dépelteau wishes to thank his colleagues, based testimony. In the context of a civil a better position to appreciate the situation: Claude Morency and Josée Aspinall for their case, the judge is master of the facts and the participation in this paper. law, and in this capacity, he is the only one 1 R. v. Abbey, [1982] 2 S.C.R. at 42. The Revay Report

“The role of an expert consists of providing he possesses an expertise and/or great We must then ask if the expert evidence is scientific information and a conclusion experience in a very specialized field, will be useful in the case, if it is really essential in that, due to its technical nature, is beyond restricted exclusively to his field of compe- order to enlighten the court on concepts that the knowledge or experience of a judge.”2 tence. the court could not itself otherwise assimi- [translated by author] late. We would thus refuse expert evidence As such, the witness will be qualified to tes- which risks influencing the decision of a The role of an expert witness does not end tify as an expert witness when his experience court on subjects that, however technical, there. It can be much more vast. More than (titles, diplomas, work history, etc.), entered helping the court in its comprehension and into evidence by his curriculum vitae being could be understood by a judge in light of appreciation of certain facts, an expert’s task 7 transmitted to the court by way of a brief facts entered into evidence. often consists of enlightening the attorney who engaged his services in the manage- examination by the client attorney, chal- Once judged admissible by the court, expert ment of his file. In the framework of a con- lenged by a cross-examination of the attor- evidence is legally introduced into the court struction law litigation, the expert, whether ney of the adverse party, demonstrates his file. However, this doesn’t mean that its con- he is an engineer, architect, geologist or spe- competence. tent will automatically be relied upon. On the cialist in any other discipline, will often be Once an expert is recognized as such, the contrary, the judge must evaluate its credibil- summoned to: client attorney proceeds with his direct ity and probative value in order to determine • Express his opinion and enlighten the court examination. The expert is thus called on to the weight that he wishes to give it, taking on the technical or scientific issues of a restate each of the elements of his report, into account all the surrounding circum- conflict between two parties; following the questioning of his attorney. It is stances. important that the expert demonstrate to the • Act as a consultant for the attorneys, in 5. HOW TO RENDER order for them to assimilate all the techni- court the underpinning of his opinion and, CREDIBLE TESTIMONY cal information and correctly identify the more particularly, the facts and presump- tions upon which his report and testimony different intricacies of the case; Scientific evidence can be more impressive are founded. When the facts are contested than a witness testifying on facts. While an • Identify other experts who could serve as or are not personally known to the expert, expert in principle must enlighten the court witnesses, as the case may be; which is often the case, hypothetical ques- on a particular subject that the judge does tions will be asked of the expert witness.4 • Lay out the principles of a delay analysis, not have specific knowledge, the judge is using the facts generated from the work The expert will then be cross-examined. It is, never bound by this evidence and is not site, in order to allow the judge to establish without a doubt, the most difficult part of an obligated to retain this testimony. He has the causes and as such determine whether expert’s testimony. The goal of the attorney the liberty to exclude the testimony in a jus- a claim is valid; who performs the cross-examination is to tified way. The court appreciates the value, • Determine the key documents of the case convince the judge to dismiss the testimony quality and credibility of the expert testimo- and, as a corollary, identify the missing of the expert. For this reason, the attorney ny, as it does for all others testimony.8 In documents; will do everything in his power to reduce the effect, article 2845 of the Civil Code of • Suggest additional surveys and research credibility of the expertise and/or the expert’s Quebec states that “the probative force of which are necessary; testimony by attacking his opinion and his impartiality. • Express his opinion on the rules of practice 2 Pierre Tessier and Monique Dupuis, « Les qualités et in a given field; 4. ADMISSIBILITY OF TESTIMONY les moyens de preuve » in Preuve et procédure, vol- ume 2, Collection de droit, Cowansville, Les Éditions • Revise pertinent literature for a given ques- For an expert witness to testify in court, his Yvon Blais inc., 2005-2006 at 269, cited in Lainey v. tion or subject; Champagne, REJB 2003-44694 (S.C.). report, like his testimony, must first be con- 3 Michael F. Harrington, “The Expert: Partisan • Provide his opinion on the effects of a sidered legally admissible. The admission of Advocate or Aide to the Court”, Ottawa, The delay in an activity sector, with respect to an expert’s evidence essentially depends on Leading Edge: CBA’S 2002 National Construction work performed in another activity sector its pertinence and utility.5 Law Conference, l’Association du Barreau of the project; Canadien, 2002 at 4. Like all other evidence, pertinence is a sine 4 Ronald E. Dimock and Michael D. Crinson, • Identify the weaknesses in the adverse qua non requirement for admissibility. An « Accounting Expert Witness Testimony or parties’ expert’s arguments and even sug- Quantified by the Qualified », Alliance for excellence expert’s report must therefore be pertinent, in investigative and forensic accounting, Toronto, gest cross-examination questions.3 that is to say, it must be linked to the facts Canadian Institute of Chartered Accountants, 2001 that it tries to establish. But the analysis at 18 and 19; Glenn A. Urquhart, “Expert Evidence”, 3. DEVELOPMENT OF TESTIMONY Ottawa, The Leading Edge: CBA’S 2002 National does not end there. The Supreme Court Construction Law Conference, l’Association du In principle, the expert witness cannot testify adds that one must proceed with “a cost Barreau Canadien, 2002 at 15. unless he has issued a written report, which benefit analysis, that is “whether its value is 5 R. v. Mohan, [1994] 2 S.C.R. 9. In this decision, the Supreme Court makes reference to the applicability would have been introduced into the court worth what it costs.” Cost, in this context, is of four criteria, (a) pertinence (b) the necessity to file prior to testimony by the party who not used in its traditional economic sense help the judge with facts (c) the absence of any rules engaged his services. but rather in terms of its impact on the trial of exclusion and (d) the sufficient qualification of the expert. For the purposes of this report, only criteria 6 Before he renders his expert testimony, it is process.” We must ask whether expert evi- (a) and (b) are considered. necessary to qualify the witness. This entails dence will help the judge with the facts or 6 Ibid. at 21. rather whether it is susceptible to create recognizing his expertise in a given field. In 7 R. v. Abbey, supra note 1. See also Hôtel Central effect, an expert who doesn’t possess the confusion. Furthermore, logically pertinent (Victoriaville) v. Compagnie d’assurance Reliance required technical or scientific competence expert testimony cannot be admitted as (November 3, 1997), Arthabaska 415-05-000337- 963, (S.C.) at 8 to 10. will not be permitted to testify. Moreover, it is evidence where its probative value is great- possible that an expert’s examination, where ly inferior to its prejudicial effect. 8 Lainey v. Champagne, supra note 2. Published by Revay and Associates Limited testimony is left to the appraisal of the The role of an expert, even if paid by one “When I said I didn’t want to be… I didn’t court,” whether it be expert testimony or of the parties, is to help the court better want to influence, there, my progress. If I ordinary testimony. understand the technical character of a begin with the idea that it is an oil fire and problem and not defend, at all costs, the I want to prove that it was a voluntary fire, In order to be retained by a judge, testimony thesis of the person who engaged his I will only consider the oil can or I will only must meet certain elementary rules on services. The expert must remain work in function of the oil can. objectivity, professionalism and integrity. detached and retain his objectivity which This is even more true when facing two con- If I want to do the contrary, I will only work will, in the end, render his position defend- tradictory testimonies, as the judge must in function of its removal from there… to able, credible and convincing. weigh the intrinsic value of each testimony not see it.” and decide which is more credible. Here, the court must certify that M. […] […] unfortunately did not demonstrate the The true question thus remains to deter- required detachment or objectivity.”10 (our An expert enlightens the court on his con- mine how to maximize the probative value underlines) [translated by author] tentions, the plausible hypotheses and the of a testimony? How do we insure that conclusions that we should draw. He can- expert testimony is not dismissed by a not pretend to ignore nor silence pertinent judge? Over the years, jurisprudence devel- 5.2 Avoiding selecting between facts to the debate, under the pretext that oped norms to which experts should explic- the presented evidence that could “distort his judgment” or lead itly adhere to in order to render their testi- From all the presented evidence, the expert him to a conclusion that could risk being monies probative. Essentially, these rules must determine the pertinent elements in unfavorable to the party who engaged his are as follows: (a) remain objective (b) don’t order to provide an objective scientific opin- services. Basically, the expert must never select between the presented evidence (c) ion and not be uniquely satisfied with the ele- pledge his allegiance to his client. don’t make judicial analysis (d) don’t gather ments that are transmitted by the party who the opinions of other experts on a given engaged his services: In the case at bar, it is clear that the expert subject. […] chose to be a representative of his “When an expert becomes selective in his client rather than an ancillary to justice. In choice of evidence, where he endeavors to 5.1 Remain objective deliberately omitting to speak about what block a litigious point for kindness to the might prove damaging to Mr. Fortin’s the- Remember that, the expert witness, even if party who engaged his services, meaning sis, the expert […] unfortunately lost all his services are engaged by a party to the lit- the person who is paying him, while the credibility. He almost demonstrated willful igation, has, above all, the mission of enlight- scientific truth indicates that he must be blindness.”12 (our underlines) [translated ening the judge. He must thus be impartial, prudent in the expression of his opinion or by author] objective and uninfluenced by the attorney when an expert cannot via evidence main- who engaged his services, otherwise his tain certain affirmations, he demonstrates 5.3 Avoiding judicial analysis credibility will evidently be affected: partiality and lack of strictness that affects the whole of his testimony. His expertise is It is the exclusive domain of the judge to “It clearly appears from M.’s testimony […] thus further weakened and will be set apply the law to the facts of the case before that he has a fundamental misunderstand- aside.”11 [translated by author] him. In this sense, the expert can in no way ing of his role as an expert. Contrary to usurp the judge’s function as master of law: what he seems to be believe, the role of an In the same way, an expert cannot give his expert is not to defend the thesis of the opinion without stating the underlying facts “[…] expert testimony is situated at the person who engaged his services, to of his opinion. Neither can he choose to not border of science and law. However, in no “work for the victim.” take into consideration certain facts that case can an expert usurp the function of might reduce the credibility of his testimony: The expert must prove his objectivity and disinterest. “While M […] was informed by the firemen 9 Rénald Fortin v. Compagnie d’assurance and the police of the discovery of an oil Wellington & al., B.E. 2000B.E.-416 (S.C.) at 9. The expert must be impartial. […]”9 (our can at the place where he himself could Motion for leave to appeal dismissed (C.A., 2000- underlines) [translated by author] 07-13), 500-09-009473-000. Motion for leave to note a starting point and intense car- appeal to the Supreme Court dismissed (S.C. Can. This case concerned a claim for an insur- bonization, his report makes no mention of 2001-05-03), 28149. Demand for reexamination of ance indemnity following a fire. The insur- it. In fact, even if he knew, before the writ- the motion for leave to appeal to the Supreme ing of his report, that a voluntary fire was Court dismissed (S.C. Can., 2001-09-27), 28149, ance company refused to pay following its restated in the decision: Sarrazin v. Société engineer’s report, an expert in the research suspected, M. […] did not even think it nationale d’assurance inc., EYB 2006-101535 of the source of fires, who concluded that the important to verify the pertinent informa- (S.C.) at 7. See also McNamara Construction fire was the result of an intentional act given tion nor took the care to consult the fire- Company v. Newfoundland Transshipment Ltd. and that, particularly, an oil can was present in men’s intervention report, which clearly al. (May 17, 2000), Newfoundland, 1998 S.T.J. no 0942, (S.C.) at 2 to 4. the basement. indicates the presence of an oil can at the 10 source of the fire. Ibid. at 8. Given the same facts, the expert engaged by 11 Boiler Inspection and Insurance Company of the insured came instead to the conclusion Why did he judge it unnecessary to do so? Canada v. Manac inc., REJB 2003-50734 (S.C.) at that the fire was accidental, having been He explains: par. 198. caused by the overheating of the bi-energy 12 Rénald Fortin v. Compagnie d’assurance “Well, listen a minute, here. One thing must furnace located in the basement of the Wellington & al., supra note 9 at 8 and 9. See also be understood. In the present case, I was National Justice Compania Naviera S.A. v. house. working for the victim who was also, Prudential Assurance Co. Ltd., [1993] 2 Lloyd’s Reports 68, (Queen’s Bench Division) at 82; The court dismissed the report and testimo- there… […] Who was equally indirectly Michael Black, “Disqualifying the Expert: An ny of the insured’s expert in these words: implicated, there, in terms of a criminal fire. English Perspective”, October 1996, The And, the lawyer was equally in the same Construction Lawyer at 57; David I. Bristow, “This leads the court to consider the report position.” “Expert’s Reports – Your duty of disclosure”, and testimony of the expert […] in respect Ottawa, National Construction Law Conference, to their credibility and conclusions. Later on: Canadian Bar Association, 2004 at 5. The Revay Report

the judge as master of law. This is why he of other persons, be them, themselves, […] must always hold himself short of this bor- experts, but it is the expression of an Even perusal of Mr. […]’s report makes it der, while sometimes thin, always remains expert’s judgment who applied his partic- obvious that the bulk of the report is a thin- impassable.” ular knowledge, taking into account doc- ly disguised argument made by a partisan trine and jurisprudence, in consideration of […] advocate using slanted facts. the value of the object of the report. Acts Is the expert at the border of science and of faith are not part of an expert’s role in […] law? He seems to me to have instead all the appreciation he must make of the Viewed in its totality, the report is more his roots in the realm of fact which is more value.”18 [translated by author] appropriate as argument than it is as evi- and more apparent to the jurist. Together 6. CONCLUSION dence. It is argument prepared by engi- they explore, but only the judge crosses to neers under legal direction, rather than by 13 In closing, the words of judge Hollinrake of the other side of the border.” (our under- lawyers with the benefit of engineering the British Columbian Court of Appeal in the lines) [translated by author] advice. That does not make it any the less 19 case of Cogar Estate v. Central Mountains , effective as argument. Quite the contrary. Also, it is imperative to appropriately trace which reject an expert’s report that includes the dividing line between the role of the However, this is not the stage for hearing nearly all the aforementioned criticized ele- argument.” expert and the role of the judge. It is incum- ments bear repeating: bent on the expert to provide to the court From the above, it is irrefutable that an scientific criteria necessary to corroborate “The […] report is entitled “Report on expert, called to prepare a report and to tes- the accuracy of his conclusions in order to Findings, Analysis and Evaluations.” The tify within the framework of a trial, must give the court the chance to form its own trial judge rejected the report as evidence demonstrate professionalism and prudence opinion by the application of these criteria to on the grounds that it: in the fulfillment of his mandate. The objec- the facts introduced into evidence by the (1) repeatedly offended the ultimate issue tives and scope of the report should be attorneys. The expert evidence must help rule; clearly defined from the start in order to the judge in his appreciation of the facts, by avoid a regrettable outcome, as much for the giving him particular knowledge that an ordi- (2) was replete with findings of fact that expert as for the attorney who engaged his nary person could not provide him. In no usurped the court’s function; services. case does expert evidence have as a goal (3) many of the findings of fact made by the imposing of the expert’s opinion on the Mr. […] were not of a scientific or technical judge of first instance.14 It consists of an 13 Charles D. Gonthier, « Le témoignage d’experts : à nature and did not require expert opinion “enlightened judgment act, and not an act of la frontière de la science et du droit », (1993) 53 R. for their proof; du B. 187 at 193 and 196. faith required by the judge of first instance.”15 14 National Justice Compania Naviera S.A. v. Prudential (4) the report was a “thinly disguised argu- Assurance Co. Ltd., [1993] 2 Lloyd’s Reports 68, ment made by a partisan advocate using (Queen’s Bench Division) at 81; Jim Delany, “Expert 5.4 Avoiding gathering the opinions of slanted facts;” and Witnesses and Lawyers: Managing the other experts on a given subject Relationship”, (2005) 22 The International (5) it was not possible to sever out the Construction Law Review at 405; Black, supra note In order to forge his opinion, an expert can, argument from the body of the report. 12 at 57; McNamara Construction Company v. and even must, take into consideration the Newfoundland Transshipment Ltd. and al., Supreme I have read the report of Mr. […] from cover Court of Newfoundland, 1998 S.T.J. n˚ 0942, May 17, opinion of his colleagues by reviewing the to cover and I agree with everything the 2000, Juge Orsborn at 3. pertinent literature on a given subject.16 trial judge said about it and the reasons he 15 Directeur de la protection de la jeunesse and T. (O) However, an expert cannot simply be con- gave for holding it to be inadmissible. and G (L) and T( D), EYB 2003-46074 (C.Q.) at 14. tent with gathering the opinions of other 16 Recommended practices for design professionals experts, no matter how pertinent. In effect, […] engaged as experts and the resolution of construc- certain judges have even decided that it con- tion industry disputes, Silver Spring MD, ASFE, 1988 sisted of a question of admissibility, and not I think this report is so badly flawed and so at 3; Urquhart, supra note 4 at 15; Harrington, supra note 3 at 6. only a question of probative value17, and by contrary to the position of an expert wit- consequence purely and simply eliminated ness in this jurisdiction that his or her role 17 CUM v. Trizec Equities, EYB 1986-72982 (C.P.). the expertise of evidence presented by the before the court is to assist the court and 18 Domtar v. Ville de Windsor, (August 8, 1984), Saint- party: not play the role of an advocate, that it was François 450-02-001423-816 (P.C.), restated in the open to the trial judge to view it as not decision: CUM v. Trizec Equities, ibid. at 7. “The opinion of an expert, as it is recorded being a statement or notice as required by 19 Cogar Estate v. Central Mountains, 72 B.C.L.R. (2d) at in a report, is not the assembly of opinions s. 11 of the Evidence Act. 292.

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