Art Linton, Author at

by Art Linton 2015/03/06

Print this Page

A controversial decision in Moore v. Getahun 2014 ONSC 237 (“Moore”) left Ontario lawyers and expert witnesses in a state of conflict and uncertainty.  A year later, the Court of Appeal has provided clarity regarding the preparation and use of expert reports before courts and tribunals, Moore v. Getahun 2015 ONCA 55.  Expert witnesses and the lawyers who engage them would be wise to carefully consider this case and stay within the guidance provided in the Court of Appeal’s ruling.

Two things should be apparent from the arguably aggressive decision by the Superior Court and the thorough guidance in the subsequent ruling of the Court of Appeal.  First, courts are frustrated with counsel whom they believe may use the editing process to influence expert reports in favour of their client.  They have now demonstrated that they are prepared to act aggressively to sanction any perceived collusion.  Secondly, the Court of Appeal has been careful to provide clear guidance to both counsel and experts as to their responsibilities regarding expert testimony.  This guidance provides a standard that courts, tribunals, and professional disciplinary bodies, can use to asses the conduct of counsel and the professionals they engage as expert witnesses.

Counsel and expert witnesses should now be fully alert to the possibility of court sanctions and to the danger of subsequent disciplinary action by their professional regulators should their conduct step outside the boundaries set by the Court of Appeal.

In Moore, the Superior Court concluded at para 50 that “…counsel’s prior practice of reviewing draft reports should stop.  Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable.”  Moreover, at para 52, the court stated: “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.”

That decision gave rise to extensive concern among the litigation bar and among experts who testify at trials or before tribunals.  Many felt strongly that appropriate consultation between counsel and expert is essential to ensure that expert witness reports comply with the Rules and the expert’s common law duties.  It has also been argued that effective communication between counsel and experts helps experts understand the legal concepts at issue so they might better assist the court to integrate complex expert evidence.

On appeal, the Holland Access to Justice in Medical Malpractice Group argued that the ruling impaired “normal, reasonable and prudent litigation practices, would substantially increase the cost of litigation, would do a disservice to the Court in terms of hearing fulsome, well-organized, and appropriate evidence, and ultimately result in a chilling and significantly restrictive effect on access to justice.”  The Canadian Defence Lawyers’ association asserted the ruling was  “unprecedented, unsupported in law and seriously flawed”.  The Advocates’ Society presented the court with its Principles Governing Communications with Testifying Experts (Toronto: The Advocates’ Society, June 2014) and a Position Paper on Communication with Testifying Experts (Toronto: The Advocates’ Society, June 2014).

Each of the six interveners permitted at the Court of Appeal challenged the Superior Court judgment as simply wrong.  The Court of Appeal agreed, finding at para 49 that “if accepted, the trial judge’s decision would represent a major change in practice.  It is widely accepted that consultation between counsel and expert witnesses … is necessary to ensure the efficient and orderly presentation of expert evidence and the timely, affordable and just resolution of claims.”

Courts have long emphasized the necessity for experts to testify independently and objectively, and have cautioned expert witnesses against acting, or appearing to act, as advocates for the parties that retain them.  The correct role of an expert is always to fairly and impartially assist courts and tribunals with matters that fall within their areas of expertise.

In setting out the common law duties of expert witnesses, the Court of Appeal cited National Justice Compania Naviera S.A. v. Prudential Assurance Co. Ltd. (“The Ikarian Reefer”), [1993] 2 Lloyd’s Rep. 68, at p. 81 (Eng. Q.B. Comm.):

  1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation [citation omitted].
  1. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise [citation omitted]. An expert witness… should never assume the role of an advocate.

For further guidance, the Court of Appeal at para 57 endorsed the Advocates’ Society submission: “I attach as an Appendix to these reasons The Advocates’ Society’s Principles Governing Communications with Testifying Experts, which provides a thorough and thoughtful statement of the professional standards pertaining to the preparation of expert witnesses.”  These principles are available on line at: http://www.advocates.ca/assets/files/pdf/The_Advocates_Society-Principles_Governing_Communications_with_Testifying_Experts_3_sep18.pdf

If it was ever unclear, there should no longer be any uncertainty that expert testimony must be scrupulously unbiased and of service to the court.  Further, counsel and expert witnesses wishing to avoid sanction would be prudent to measure both their retainer and subsequent conduct against the standards set out in the Advocates’ Society’s Principles Governing Communications with Testifying Experts.

Art Linton is a lawyer in the Municipal, Land Use & Development Law Group at Sorbara, Schumacher, and McCann LLP, one of the largest and most respected regional firms in Ontario.

* * This article is intended only to inform and educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

Print this Page

By Art Linton 2014/11/16

Print this Article

The Law Society of Upper Canada marked Remembrance Day 2014 with an Honorary Call to the Bar of Ontario for law students who did not return from the “Great War”

WW1

Each year the Law Society of Upper Canada commemorates Remembrance Day. The ceremony includes reading the names of lawyers and law students who lost their lives serving Canada in the first and second world wars.

The names of the fallen are read every year to pay tribute to their sacrifice and to remind us of the price they paid for the benefits every Canadian now enjoys. Until this year, the names of the law students were followed by the words: Never Called.

On Monday November 10th, in recognition of the 100th anniversary of the First World War, the Law Society of Upper Canada conducted an Honorary Call to the Bar for those Students-at-Law who left their legal studies to serve Canada and lost their lives in the “Great War.” Images from the event can be viewed here. The invitation only event was held in the rotunda of Osgoode hall and was followed by a reception in the Great Library and a formal dinner in Convocation Hall. Lawyer Art Linton, 1st Battalion Black Watch (1966-70) represented SorbaraLaw at this event.

Patrick Shea, who is a lawyer and former Reserve Officer in the Canadian Armed Forces, conceived the Honorary Call. Mr. Shea spent almost two years in research to create detailed biographies. The result is a remarkable book authored by Patrick Shea entitled They Shall Not Grow Old which is available free for viewing online here.

Fallen Soldiers Called to the Bar of Ontario on Nov. 10th 2014

PRIVATE THOMAS WILLIAM EDWARD ALLEN – Millbrook, Ontario, Admitted as a Law Student in 1910, killed in action at the age of 27, June 1917

LIEUTENANT WILLIAM KAY ANDERSON – Lindsay, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 25, January 1918

LIEUTENANT WILLIAM DOUGLAS BELL – St. Thomas, Ontario, Admitted as a Law Student in 1910, killed in action at the age of 24, September 1916

LIEUTENANT ROY WARREN BIGGAR – Hamilton, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 21, March 1918

CAPTAIN GERALD EDWARD BLAKE – Toronto, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 24, July 1916

FIRST LIEUTENANT HAROLD STAPLES BREWSTER – Brantford, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 24, December 1916

CAPTAIN STANLEY HOWSON BROCKLEBANK, MC – Arthur, Ontario, Admitted as a Law Student in 1914, died of wounds at the age of 28, September 1918

PRIVATE WALTER EVERARD ALWAY BROWN – Toronto, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 24, September 1918 (Not called at request of family)

MAJOR JEFFREY HARPER BULL, DSO – Brampton, Ontario, Admitted as a Law Student in 1910, killed in action at the age of 29, August 1918

LIEUTENANT LAWRENCE CODE – Ottawa, Ontario, Admitted as a Law Student in 1913, killed in action at the age of 20, August 1917

LIEUTENANT BRYCE THOMAS DAVIDSON – Mimico, Ontario, Admitted as a Law Student in 1911, killed in action at the age of 25, July 1917

GUNNER GRANT DOUGLAS – Toronto, Ontario, Admitted as a Law Student in 1913, killed in action at the age of 29, August 191

SECOND LIEUTENANT GUY PEIRCE DUNSTAN – Toronto, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 23, July 1916

PRIVATE GEORGE CLEMENS ELLIS – Leamington, Ontario, Admitted as a Law Student in 1910, died of wounds at the age of 25, June 1916

CADET ALMAN MINOR FROOM – Regina, Saskatchewan, Admitted as a Law Student in 1913, killed in action at the age of 25, September 1918

CAPTAIN HAL CHARLES FRYER, MC – Fort William, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 22 September 1917

SECOND LIEUTENANT WILLIAM MILLER GEGGIE – Toronto, Ontario, Admitted as a Law Student in 1913, killed in action at the age of 24, October 1917

LIEUTENANT FRANCIS MALLOCH GIBSON – Hamilton, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 22, August 1915

LIEUTENANT AMBROSE HAROLD GOODMAN – Toronto, Ontario, Admitted as a Law Student in 1917, died of wounds at the age of 21 August 1918

SECOND LIEUTENANT THOMAS SETON GORDON – Owen Sound, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 25, January 1916

CAPTAIN OSWALD WETHERALD GRANT, MC – Toronto, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 23, June 1916

SECOND LIEUTENANT ROBERT GORDON HAMILTON – Toronto, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 22, September 1916

LIEUTENANT WILLIAM NEIL HANNA – Sarnia, Ontario, Admitted as a Law Student in 1912, killed in action at the age of 23, November 1918

SERGEANT HENRY STUART HAYES, MM – Trenton, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 26, December 1916

LIEUTENANT BERNARD STANLEY HEATH, MC – Toronto, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 21, November 1917

MAJOR HUGH ETHELRED MCCARTHY INCE – Toronto, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 23, November 1916

PRIVATE WILLIAM ADAM IRVING – Sudbury, Ontario, Admitted as a Law Student in 1910, killed in action at the age of 21, April 1915

LIEUTENANT ERNEST REECE KAPPELE – Toronto, Ontario, Admitted as a Law Student in 1912, killed in action at the age of 24, April 1917

PRIVATE HENRY KELLEHER – Macroon, County of Cork, Ireland, Admitted as a Law Student in 1913, killed in action at the age of 24, April 1915

PRIVATE THOMAS EWART KELLY – Toronto, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 25, April 1915

LIEUTENANT LLOYD BUTLER KYLES – Toronto, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 22, October 1918

CAPTAIN EDWARD JOSEPH KYLIE – Lindsay, Ontario, Admitted as a Law Student in 1915, died in military service of typhoid fever at the age of 35, May 1916

LIEUTENANT GEOFFREY LYNCH-STAUNTON – Hamilton, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 20, march 1917

LIEUTENANT GEORGE LAWRENCE BISSETT MACKENZIE – Toronto, Ontario, Admitted as a Law Student in 1913, killed in action at the age of 24, June 1916

SECOND LIEUTENANT RODERICK WARD MACLENNAN – Toronto, Ontario, Admitted as a Law Student in 1914, killed in a flying accident at age of 24, December 1917

LIEUTENANT GEORGE GEOFFREY MAY – Ottawa, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 23, April 1917

Fallen Soldiers Called to the Bar of Ontario on Nov. 10th 2014

LIEUTENANT JAMES IGNATIUS JOACHIM McCORKELL – Udney, Ontario, Admitted as a Law Student in 1917, killed in action at the age of 23 August 1918

SECOND LIEUTENANT RONALD GWYNNYD MONTAGUE McRAE – Weston, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 23 January 1918

CAPTAIN GRANT DAVIDSON MOWAT – Peterborough, Ontario, Admitted as a Law Student in 1916, killed in action at the age of 23, August 1917

LIEUTENANT HAROLD GLADSTONE MURRAY – Fort Frances, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 22, December 1916

CAPTAIN HUBERT PATTERSON OSBORNE – Fredericton, New Brunswick, Admitted as a Law Student in 1914, killed in action at the age of 22, July 1917

CAPTAIN FRANKLIN WALTER OTT, MC – Toronto, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 25, September 1918

LIEUTENANT HENRY ERROL BEAUCHAMP PLATT – Toronto, Ontario, Admitted as a Law Student in 1913, killed in action at the age of 24, May 1916

CAPTAIN MAURICE CAMERON ROBERTS, MC – Hamilton, Ontario, Admitted as a Law Student in 1913, killed in action at age of 21, November 1918

PRIVATE WILLIAM MILLROSE ROYS – Cornwall, Ontario, Admitted as a Law Student in 1917 at the age of 21, killed in action at the age of 22, August 1918

LIEUTENANT STANLEY ARTHUR RUTLEDGE – Fort William, Ontario, Admitted as a Law Student in 1913, killed in action at the age of 26, November 1917

PRIVATE STANLEY SMITH – Toronto, Ontario, Admitted as a Law Student in 1914, died of wounds at the age of 20, May 1918

LIEUTENANT THOMAS HERBERT SNEATH – Toronto, Ontario, Admitted as a Law Student in 1913 at the age of 18, died of wounds at the age of 21, September 1916

LIEUTENANT JOHN HERBERT ADAMS STONEMAN – Toronto, Ontario, Admitted as a Law Student in 1913, killed in action at the age of 25, September 1918

CADET DAVID ALEXANDER SWAYZE – Dunnville, Ontario, Admitted as a Law Student in 1912, killed in a flying accident at age 22, October 1917

CAPTAIN WILLIAM KEITH McGLASHEN SWAYZE – Lindsay, Ontario, Admitted as a Law Student in 1917, died AT AGE 21, February 1920

Fallen Soldiers Called to the Bar of Ontario on Nov. 10th 2014

LIEUTENANT ROYLAND ALLIN WALTER, MC – Goderich, Ontario, Admitted as a Law Student in 1917, killed in action at the age of 28, September 1918

LIEUTENANT CHARLES HERBERT WHITE – Port Hope, Ontario, Admitted as a Law Student in 1915, died of wounds at the age of 21, August 1917

LIEUTENANT MAURICE FISKEN WILKES – Brantford, Ontario, Admitted as a Law Student in 1913, killed in action at the age of 24, September 1916

LIEUTENANT REGINALD PRINSEP WILKINS – Wetaskiwin, Alberta, Admitted as a Law Student in 1915, killed in action at the age of 26, September 1918

LIEUTENANT WILLIAM HARTELY WILLARD – Toronto, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 21, September 1916

LIEUTENANT ARTHUR PATRICK WILSON, MC – Tilbury, Ontario, Admitted as a Law Student in 1917, killed in action at the age of 22, September 1918

LIEUTENANT MATTHEW MAURICE WILSON – Chatham, Ontario, Admitted as a Law Student in 1914, killed in action at the age of 21, October 1918

LIEUTENANT SAMUEL LESLIE YOUNG – Brant, Ontario, Admitted as a Law Student in 1915, killed in action at the age of 21, November 1916

They shall not grow old, as we that are left grow old: Age shall not weary them, nor the years condemn. At the going down of the sun, and in the morning, we will remember them.

Print this Article

Municipal, Land Use and Development – Art Linton

The Supreme Court of Canada recently clarified the law of injurious affection where no land is taken in its decision in Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13. Unfortunately, the compound test set out by the Court has left many public sector professionals feeling uncomfortable about their ability to efficiently detect and assess potential claims without extensive legal assistance. Lawyers representing property owners in such cases often apply a simplified first pass test looking for construction that permanentlysubstantially, and disproportionately affects property values or causes personal or business damage. There is no reason that expropriating authorities can’t apply the same test to identify and mitigate the risk of unanticipated litigation expense.

The Expropriations Act (Ontario) requires an expropriating authority to compensate a landowner for reduction in market value as well as personal and business damages even where none of the owner’s land is taken. Before having an entitlement to compensation, claimants are required to prove any damage was caused by action taken under statutory authority, the damage would have given rise to liability in common law if not for the statutory authority, and the damage was caused by the construction, not the subsequent use of a public project. In most cases, it will be known whether the work was performed under statutory authority, and it will be reasonably clear whether a potential claim will arise from construction and not the use of a public work.

The legal test is complicated in practice because the Court requires that damage must be substantial and unreasonable. These terms are intentionally broad to permit consideration of the particular circumstances of each public project. The determination of what is substantial and unreasonable is subject to the moving target of Ontario Municipal Board and court decisions on various fact sets that come before them over time. Further, the legal test considers whether any damage to a property is, or is not, the kind of damage a property owner should be prepared to accept without compensation. An experienced expropriation lawyer is the best choice to conduct this legal analysis.

Public officials should diligently apply the simplified first pass test early in each project to identify potential claims and refer them for legal analysis. An experienced expropriation lawyer can then apply the full legal test set out by the Supreme Court to advise whether a potential claim is likely to materially affect the cost of a project. If serious potential claims are identified before construction begins, more time and options are available to mitigate liability and manage cost.

One illustration is a single business located on a short dead end side street off a main traffic artery. Vehicles travelling in either direction on the main road are able to reach the business using a left or right hand turn. Access to that business would clearly be affected by any permanent obstacle, such as a concrete safety barrier or a raised LRT service in the median of the main road. All customers who previously accessed that business by making a left hand turn off the main road would be prevented from doing so. An application of the simplified test would show likely permanent, substantial, and disproportionate affect from the construction, visited upon this single business. Early recognition of this problem might allow solutions like a left hand turn lane with permitted U-turns at the next intersection or opening a new access at the other end of the short dead end street.

The simplified first pass test is no replacement for a thorough strategic review of every project prior to construction. However, early detection of potential claims provides time to offer remedies that may not be available once a plan is approved and to make other reasonable efforts to reduce the impact of the project on affected property owners.

Art Linton is a lawyer with Sorbara, Schumacher, McCann LLP, one of the largest and most respected regional law firms in Ontario. 

* * This article is intended only to inform and educate. It is not legal advice.  Be sure to contact a lawyer to obtain legal advice on any specific matter.

Print This Article


WEBSITE © SORBARALAW