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Expert Retained by Plaintiff Does Not Owe Duty of Care to Defendant

Published in the January 2007 issue of Litigation Notes - View Article

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In a recent decision out of the Ontario Superior Court of Justice, the Court granted a motion brought by a third party seeking to strike out the third-party claim initiated by the defendant. The plaintiff had retained the third party to conduct an environmental assessment of its property. The third party’s report concluded that there was contamination to the plaintiff’s property by gasoline migrating from the defendant’s property. The plaintiff sued the defendant, who in turn, sued the environmental assessment company for breach of an implied contractual duty, breach of a duty of care, negligent misrepresentation and tort of abuse of process. The motions judge struck out each claim on the basis that there was no cause of action.

The court contrasted this situation with the relationship between an insured and a fire investigator hired by an insurer. The insured is bound by the insurance contract to co-operate with a fire investigation and the investigator would know that the insured could be adversely affected by a careless investigation.

In this case, the Court held that there was no particular vulnerability by virtue of any relationship between the defendant and the third party, nor was there any relationship due to any contractual obligation. There was no “heightened expectation” of the defendant regarding the third party’s conduct.

Even if there was a prima facie duty of care, the court rightly noted that it should be negated for policy reasons. Any recognition of such a proposed duty of care would “distort the legal relationships in that it would set up an incoherent scheme of liability, where, rather than focus on the obligation or the possible liability of the Defendant with respect to damages caused to the Plaintiff, there would be a further issue, a distorting one, where the Defendant would focus any alleged liability on the party who prepared the report for the Plaintiff.” The motions judge also noted that the third party is entitled to witness immunity, and being implicated as a third party would discourage it from testifying in the main action, which would be adverse to the proper functioning of justice.

Vie Holdings Inc. v. Imperial Oil Limited, 2007 CanLII 242