Library:
Expert Potentially Liable to Own Client
Published in the February 2009 issue of Litigation Notes - View Article
The Ontario Superior Court of Justice has decided that an expert witness does not necessarily benefit from witness immunity where the expert’s report was ordered for the purpose of defending a lawsuit, but also for a purpose unrelated to the litigation
In the March 2007 edition of Litigation Notes, we reported on a decision of the Ontario Court of Appeal in the case of Reynolds v. Kingston, where the court concluded that a full trial was required to settle the unresolved legal issue of whether an expert witness could be liable to the opposing party in litigation for negligence in the conduct of the expert’s investigation. The Ontario Superior Court has now considered a further question of interest to forensic experts – can parties sue their own expert witnesses in negligence, or for breach of contract, based on opinion evidence given in a court proceeding?
In 1996, residents of Ottawa sued the City for flood damages, claiming that the municipal drainage system in their area had not been adequately designed or maintained. The City retained Robert Bishop as an engineering expert to investigate the cause of the flooding and to provide an expert witness report for the City to use in the defence of the claim. Bishop’s report concluded that the drainage system was up to current standards and recommended that no improvements to the system be undertaken. The case was settled without trial in 1997.
In 2002, there was a second flood to the same area, resulting in a second lawsuit against the City. The City retained another engineering firm to review the drainage system. The second firm concluded that the drainage system was seriously undersized, and faulted Bishop for relying on outdated and inappropriate data. The City issued a third-party claim against Bishop claiming over for any damages that it might be found liable to pay the homeowner plaintiffs as a result of the second flood. Bishop brought a summary judgment motion, seeking dismissal of the claim against him on the basis that the opinion that he gave in his expert report was evidence in a legal proceeding, and therefore protected by absolute witness immunity privilege.
Bishop and the City were agreed that Bishop's expert report was prepared at the request of the solicitors for the City in order to respond to the summary judgment motion in the first flood lawsuit. That was an important distinction from the Reynolds v. Kingston case where the defendant expert prepared his report in fulfillment of his responsibilities as a coroner, and then later agreed that the report could be used as the basis of expert testimony in a criminal trial. However, in this case, the City of Ottawa asserted that it was owed a separate and distinct duty of care by Bishop because the two had entered into a contract. It claimed against Bishop for breach of contract as well as negligence. The City also argued that it relied on the expert report for a dual purpose: firstly to defend the summary judgment motion, and secondly to decide whether or not to upgrade the drainage system. The City argued that witness immunity protection should not apply where damages result from reliance on the expert witness opinion for a purpose unrelated to the litigation. Bishop conceded, for the purposes of the motion only, that the City did in fact rely on the report for a dual purpose.
The City further argued that witness immunity did not extend to negligent investigation prior to preparing an expert report for use in litigation. That argument was rejected. The Court first concluded that Bishop was covered by witness immunity in respect of his investigation prior to preparing the report. The Court emphasized that his investigation began after the litigation was commenced and was undertaken for the purpose of assisting in the defence of the litigation.
However, the Court then concluded that no Canadian court has yet decided the issue of whether witness immunity should extend to prevent parties from suing their own expert witnesses. Consequently, the Court had to consider whether it should decide this novel legal question on a motion for summary judgment, or whether the matter needed to proceed to trial. In the Court’s view, the terms of Bishop’s retainer were key. The Court noted that the retainer contract did not contain limitations on the use to which the report could be put, nor limitations on liability. The Court focussed on whether it was an implied term of the retainer agreement that the expert would enjoy witness immunity protection for his investigation, or whether he would be subject to damages if he did not perform his obligations according to the standards of his profession. The existence of an implied term is at least partially a question of fact. The Court therefore concluded that the matter could not be decided on a motion for summary judgment and that a trial was required, where the court would have the benefit of a full evidentiary record.
As things stand, the issues raised both in the Reynolds case and this case regarding the liability of expert witnesses have been held to be unresolved under Canadian law. One thing that professionals acting as expert witnesses can do to reduce their liability exposure is to have their retainer contracts state that the reports should not be relied upon for any purpose other than use in the preceding for which the expert's testimony is required.
Robinson v. Corporation of the City of
Ottawa, 2009 CanLII 1660