Introduction
In its seminal decision of Westerhof v Gee Estate,1 the Court of Appeal for Ontario provided the general framework for the admissibility of expert evidence in Ontario. Specifically, it clarified the role of participant experts at trial and confirmed that compliance with Rule 53.03 of the Rules of Civil Procedure was not required for their evidence to be admissible, as opposed to the evidence of litigation experts. As the Court indicated, participant experts are witnesses, albeit ones with special skill, knowledge, training or expertise, who are not engaged by a party to form their opinions, and who do not form their opinions for the purpose of the litigation. Instead, they testify to opinions formed during their involvement in the event at issue.2
The decision provided much-needed clarity on the admissibility of opinion evidence by non-litigation experts. However, there remain numerous practical considerations to keep in mind regarding the use of both categories of experts at trial, and the weight that may be attributed to each witness' evidence when preparing for same.
Such considerations will arise in cases involving the standard of care and allegations of a breach thereof by professionals, including technicians either installing or repairing equipment. To successfully prove a breach, expert evidence will typically be required, and a key question to consider is whether such evidence can be contradicted by evidence from a participant expert. Moreover, the proper qualification of a litigation expert on the standard of care of a professional technician, who would have been directly involved in the work, will be paramount.
These issues were front and centre for Martin A. Smith and Alex Robineau as they represented, and ultimately successfully defended, their client, Lumipro Inc. ("Lumipro"), at trial in the case Maxrelco (Immeubles) Inc. v. Lumipro Inc.3 Justice Sally Gomery, who presided over the case at trial, was not required to deal explicitly with the admissibility of participant expert evidence and its weight compared to the evidence of a litigation expert, her findings of fact and conclusion shed some important light on the role of expert technicians in professional negligence trials.
Rules for Experts
In 2010, Rule 4.1.01 was added to Ontario's Rules of Civil Procedure. This Rule sets out the duty that experts have to provide opinion evidence that is fair, objective and non-partisan. This Rule establishes that experts can only provide evidence that is related to matters that are within their area of expertise. Additionally, the Rule states that the expert's duty to the Court prevails over any obligation owed to the party who engages the expert.
Moreover, Rule 53.03 sets out the well-known requirements for the service of an expert report as a condition to the calling of the expert at trial and the information to be included in such a report. An expert's opinion at trial will be confined to the four corners of his or her report and any supplementary reports. As one of its key findings in the Westerhoff case, the Court of Appeal for Ontario confirmed that participant experts were not required to complete such reports, in the interest of promoting access to justice and avoiding unnecessary litigation costs.
Summary of the Case
The plaintiff, Maxrelco (Immeubles) Inc. ("Maxrelco") brought a case against Lumipro for a fire that took place on August 17, 2008, at a highway service centre it owned (also known as "Restauparc") in Casselman, Ontario. The fire began in a Dunkin Donuts neon sign attached to the wall outside of the building. The fire destroyed the roof of the Restoparc and, ultimately, the building had to be demolished.
Lumipro serviced the signs and lights at the Restauparc prior to the fire but had not installed the signs. Maxrelco alleged that Lumipro should have warned it about the possibility of a fire igniting in the neon sign while it carried out repairs to the neon assemblies at the premises. Lumipro denied any liability for the August 2008 fire as it was never hired to repair the neon sign that caught fire. As such, Lumipro's technicians never had the opportunity to see the installation deficiencies. It also denied that it observed any obvious deficiencies in the installations that could possibly result in a fire and that any duty to warn of specific dangers had not been triggered.
Prior to trial, both parties had served expert reports from litigation experts who specialized in the origin and cause of fires. Both experts agreed that the installation of the outdoor neon Dunkin Donuts sign had been faulty, as the sign was not properly grounded. They disagreed on whether an ordinary service technician conducting repairs to neon signs could have observed either direct evidence of the deficient installation by looking inside the sign, or general signs of the deficient work triggering a duty to warn.
Maxrelco's expert found that the deficient work ought to have been seen, while Lumipro's expert found that Lumipro's technicians never had an opportunity to observe the deficient work. Simply put, both experts agreed on the origin and cause of the fire but disagreed on whether Lumipro's technicians had breached the applicable standard of care.
Maxrelco attempted to have its expert qualified to give an opinion on both the standard of care and causation. After careful review of their expert's credentials, it became obvious that he had little actual knowledge with respect to the servicing of neon sign installations, and even less regarding the work carried out by service technicians while on site. Lumipro, therefore, objected to the expert being qualified to give opinion evidence on the standard of care, while conceding that he had the required expertise to testify as to the deficiencies in the installation.
Justice Gomery agreed with Lumipro and determined that Maxrelco's expert was not qualified to provide expert opinion on the servicing of neon lighting. In what seemed to be an interest in keeping things fair, Justice Gomery also found that Lumipro's expert was only qualified to give his opinion on origin and cause. However, given that the burden of proof fell on Maxrelco, the finding with respect to its expert proved to be a decisive turning point at trial.
Justice Gomery was therefore left with the evidence of the three Lumipro technicians that had worked at the Restoparc in the years prior to the fire. These technicians were not explicitly qualified as participant experts, as their expertise and experience were not disputed by Maxrelco. Nonetheless, the decision makes it clear that the trial judge accepted their opinion evidence, based namely on their direct involvement on-site and their specific experience in the maintenance of neon signage.
Justice Gomery decided that all three were credible witnesses. In the first part of her decision, she relied heavily on their evidence to determine that no one from Lumipro had worked on the subject Dunkin Donuts neon sign. The technicians relied on service notes taken at the time to determine what kind of work they did at the Restauparc. By reviewing their notes and invoices for parts, they were able to determine which sign they had worked on. Under intense cross-examination, the technicians remained adamant that they had never worked on the outdoor neon Dunkin Donuts sign. Justice Gomery agreed, finding that the technicians never had an opportunity to observe faulty assembly in at least one of the exterior neon channel letters.
Admittedly, this portion of the decision was based mainly on the factual evidence provided by the technicians with respect to their work habits on-site to establish that they had not worked on the sign. However, Justice Gomery also relied on their opinion that signs similar to the Dunkin Donuts sign did not have any obvious deficiencies. In doing so, she confirmed that there was insufficient evidence to establish that the installations in comparable signs were substandard.
Similarly, Justice Gomery relied on the opinion evidence of Lumipro's technicians in her duty to warn analysis. Maxrelco had argued that, even if Lumipro had not worked on the specific sign, its knowledge of the age of the signs and the possibility (although remote) of fires caused by neon lighting triggered a general duty to warn on behalf of Lumipro.
Justice Gomery rejected this argument, finding that Maxrelco failed to adduce sufficient evidence to establish that Lumipro ought to have anticipated the specific risk of an electrical fire caused by a sign that was not properly bonded and grounded. In making this finding, Justice Gomery specifically accepted the technicians' evidence that: "Lumipro had no reason to think that the exterior channel letter signs were installed improperly, let alone that the installation was so sloppy that basic safeguards [...] were not in place."
In the final section of her decision dealing with a breach of the standard of care, Justice Gomery confirmed the importance of presenting expert evidence on this issue. She highlighted Maxrelco's failure to have an expert testify on industry standards and what a competent technician should have done in the circumstances, such as warn an owner of an increased risk of fire due to external signs of wear and tear. In the absence of such evidence, Justice Gomery found that it was impossible to conclude that Lumipro's technicians had breached the standard of care in this case.
LessonsLearned About Experts in Trial
There are two important takeaways from this case regarding the selection of experts to testify at trial.
The first is to ensure that any expert who claims to be qualified to give opinion evidence on a professional's standard of care does, in fact, have sufficient experience to withstand cross-examination on qualifications at trial. In the case at bar, and in a typical approach in property damage cases, both litigation experts had been retained to complete reports at the investigation stage regarding the origin and cause of the fire. The experts then completed supplementary reports, based namely on their initial observations and the transcript evidence of the witnesses and, to opine on the standard of care.
While this may seem interesting as a cost-saving measure, the reality is that most causation experts will not be qualified to give opinion evidence on the standard of care of the expert professional. Factors to consider will be relevant experience in the actual field, past qualifications on the specific work carried out (and not on the cause of damage resulting from similar equipment), and education.
In this case at bar, Maxrelco's expert had only investigated a few neon fires, and he had no knowledge of a service technician's work while repairing such equipment. Maxrelco, therefore, had no evidence to prove what a competent technician who was working on the signs at the same time as Lumipro's technicians should have observed while repairing the signs, and what, if anything, he or she should have said to the owner.
In some cases, trial judges will make findings of fact on a breach of the standard of care without expert evidence, especially where deficiencies are obvious and do not require particular expertise. However, in most cases, such as the case at bar, trial judges will not be inclined to make findings without the benefit of cogent expert evidence establishing a breach of the standard of care.
The second key takeaway is the importance of an expert professional's evidence for the defence side, and how it should not be overlooked. As stated above, Justice Gomery did not deal specifically with the technicians' qualification as participant experts, as it was not required. However, in our view, she accepted that they were qualified to give opinion evidence on the work that they had done and namely on the fact that they had no reason to think that there could be deficiencies with the bonding and grounding of the signs.
Moreover, during our preparation and the trial itself, it was obvious that the technicians were the most qualified witnesses to speak to the servicing of neon signs, given their years of experience in the field and the unique and specialized nature of the work.
One issue that was addressed by Justice Gomery was the technicians' impartiality, as they were still working for Lumipro at the time of trial. Justice Gomery found no evidence that they were tailoring their evidence to satisfy their employer. This is consistent with another case from the Superior Court of Ontario, where Justice Raikes found that a participant expert's evidence should not be excluded solely because he was employed by a party when he formed his opinion.4
Practical Considerations
When selecting witnesses to testify at trial, it is important not to overlook the technical knowledge and observations made by employees of a client, as long as they dealt with the facts at issue in the litigation. If the witness can provide useful opinion evidence, preparation should be made to have the witness qualified as a participant expert and to answer any concerns that may be put forward by opposing counsel, including on the issue of impartiality.
With this said, the evidence of participant experts should not be seen as a replacement for the opinions of litigation experts. In certain circumstances, and especially if a plaintiff has not produced any evidence on the standard of care, it may be worth relying exclusively on the client's evidence. However, in most cases, expert evidence from litigation experts will be used to strengthen the evidence of participant experts and to provide opinions on different areas of expertise. The case at bar is a strong example, where causation evidence was provided by a litigation expert while the evidence of the technicians was used to dispute the allegations of a breach of the standard of care.
Conclusion
The issue of opinion evidence has long been discussed in the history of the common law and remains a key factor when preparing a case for trial. The case of Maxrelco (Immeubles) Inc. v. Lumipro Inc. illustrates the importance of carefully scrutinizing the availability of such evidence for a client, and ensuring that any opinion evidence to be relied upon will be admissible at the trial of matter.
- 2015 ONCA 206, [2015] OJ No. 1472, Simmons JA [Westerhof].
- Supra note 1 at para 6.
- 2018 ONSC 3638.
- XPG, A Partnership v. Royal Bank of Canada, 2016 ONSC 3508.
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