Archive for January, 2014

January 28, 2014

A New World in Dealing with Experts?

Estate litigation may require evidence from various types of experts; medical professionals, business valuators, forensic accountants, real estate appraisers, etc.  Below I have reproduced an article by Stephen Schwartz and Gillian Silverhart of Chaitons LLP commenting on a recent Ontario case that could have a chilling effect on how lawyers interact with experts.

EXPERT REPORTS

Stephen Schwartz
Gillian Silverhart

On January 14, 2014, Madam Justice Wilson of the Superior Court of Justice released her decision in Moore v. Getahun (“Moore”) strongly criticizing the current practice of lawyers reviewing and commenting on draft expert reports prepared for use at trial.

MOORE v. GETAHUN

Moore was a personal injury action. During the examination of an expert retained by the defendants at trial, plaintiff’s counsel reviewed the expert’s file and found notes referring to a telephone conversation between the expert and defence counsel. During the call, counsel reviewed the expert’s report and suggested changes, which were made by the expert.

The plaintiff argued that it was inappropriate for defence counsel to make suggestions to the expert concerning his report. Defence counsel took the position that experts are entitled to prepare draft reports to be shared with counsel for comment.

Madam Justice Wilson agreed with counsel for the plaintiff, admonished counsel’s common practice concerning expert reports and found as follows:

“[50] For reasons that I will more fully outline, the purpose of Rule 53.03 is to ensure the expert witness’ independence and integrity. The expert’s primary duty is to assist the court. In light of this change in the role of the expert witness, I conclude 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.

[51] If after submitting the final expert report, counsel believes that there is need for clarification or amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel.

[52] I do not accept the suggestion in the 2002 Nova Scotia decision, Flinn v. McFarland, 2002 NSSC 272 (CanLII), 2002 NSSC 272, 211 N.S.R. (2d) 201, that discussions with counsel of a draft report go to merely weight. 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….

[520] The purpose of Rule 53.03 of the Rules of Civil Procedure is to ensure the independence and integrity of the expert witness. The expert’s primary duty is to the court. In light of this change in the role of the expert witness under the new rule, I conclude that counsel’s practice of reviewing draft reports should stop. There should be full disclosure in writing of any changes to an expert’s final report as a result of counsel’s corrections, suggestions, or clarifications, to ensure transparency in the process and to ensure that the expert witness is neutral.” [Emphasis added in bold.]

THE EXPERT’S DUTY

An expert is required to be independent and impartial. Their duty lies to the Court, he or she must not advocate for the party on whose behalf they are engaged. An expert’s duty is codified in Rule 4.1.01 of the Rules of Civil Procedure (the “Rules”).

CURRENT PRACTICE

It is common practice for experts to provide counsel with draft copies of their reports for review and comment. Counsel regularly provide the expert with input where appropriate.

In our opinion, this practice was accepted by the Court because an expert’s impartiality remained protected in at least the following ways. Firstly, the entire file of an expert called to testify at trial, including their notes, correspondence with counsel and draft reports, may be the subject of a production order (see Conceicao Farms Inc. v.
Zeneca Corp
; reversed on other grounds). Secondly, an expert can and often is cross-examined by opposing counsel on their draft reports. Thirdly, pursuant to Rule 53.03(2.1) , experts must sign an acknowledgment of their duty to be objective and non-partisan as set out in Rule 4.1.01 of the Rules.

BEST PRACTICES FOLLOWING MOORE v. GETAHUN

The comments of Justice Wilson in Moore, if followed, represent a marked departure from the current practice concerning the preparation of expert reports in Ontario. According to Justice Wilson, it is no longer appropriate for counsel to review and provide comment on draft expert reports. The current practice may result in the Court refusing to accept the report or limiting the evidentiary value or the report.
As a decision of the Superior Court of Justice, it remains open for other trial judges of co-ordinate jurisdiction to disagree with the analysis of Wilson J. and confirm the acceptability of the current practice.

In our view, for the reasons set forth above, consultation between counsel and an expert concerning the expert’s draft report does not compromise the expert’s impartiality or create a perception of bias. Moreover, such consultation is not inconsistent with the expert’s duty to the Court. Interestingly, the Court’s decision in Moore does not appear to expressly prohibit discussions between counsel and an expert prior to the report being drafted.
However, until the comments of Justice Wilson are overruled or rejected, counsel and experts should be mindful of the Court’s direction. They may consider proceeding by expanding discussions and consultation prior to the report being written. Further, any revisions requested to a draft report by counsel might be provided by correspondence and disclosed to opposing counsel. At a minimum, there should be a discussion between the expert and counsel on the level and manner of counsel’s involvement in the preparation of an expert report.

* As at January 23, 2014, counsel for the defendants was awaiting instructions as to whether appeal the decision. However, even if the decision is overturned, the Court of    Appeal may not comment on Justice Wilson’s findings on this issue.

January 23, 2014

Supreme Court of Canada Sets the Test for Summary Judgment

The Supreme Court of Canada today released a decision that resets the bar for how courts will deal with summary judgment motions in Ontario and, by effect, the other common law jurisdictions of Canada. In Hryniak v. Mauldin, The Supreme Court conducted a review of the history of the Ontario rules for summary judgment, the various changes and the interpretation of those changes by lower courts. While there will be much comment on the effect of the decisions, it certainly appears at first blush that the Court is intent on opening up the availability of summary judgment. Highlights of the decision include the following:

  • Undue process and protracted trials, with unnecessary expense and delay, can prevent the fair and just resolution of disputes;
  • A shift in culture is required.  The proportionality principle can act as a touchstone for access to civil justice;
  • Summary judgment motions provide an opportunity to simplify pre-trial procedures and move the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case;
  • Summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims;
  • The new powers in Rules 20.04(2.1) and (2.2) expand the number of cases in which there will be no genuine issue requiring a trial by permitting motion judges to weigh evidence, evaluate credibility and draw reasonable inferences;
  • Summary judgment motions must be granted whenever there is no genuine issue requiring a trial;
  • There will be no genuine issue requiring a trial where the judge is able to reach a fair and just determination on the merits on a motion for summary judgment.  This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result;
  • There will be no genuine issue requiring a trial if the summary judgment process provides a judge with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure;
  • If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2);
  • Absent an error of law, the exercise of powers under the new summary judgment rule attracts deference.  The exercise of the fact‑finding powers under Rule 20.04(2.1) and a determination whether there is a genuine issue requiring a trial, are questions of mixed fact and law which should not be overturned, absent palpable and overriding error.
January 13, 2014

Excellent Judicial Analysis of Tests on Passing of Accounts in Ontario

A recent Ontario Superior Court of Justice decision provides a very good analysis of the tests to be applied in passing the accounts of both an attorney under power of attorney and an estate trustee – Re Aber Estate

January 8, 2014

What May Surprise You About Dementia Rates

Dementia in its various forms is, quite properly, a syndrome that is receiving more and more attention, in the media, in medical writing and research and in the law. I was a bit surprised then to learn from an article in the New England Journal of Medicine that dementia rates, by percentage of population, have actually declined since 1982, according to a number of studies reviewed. Of course, in real numbers cases are on the rise given an aging and longer-living population. However, it is good to know that advances in prevention and treatment are being made, even if slowly. It was interesting to note some of the factors highlighted in preventing or forestalling dementia, being “improving educational opportunities in both early and later life, reducing vascular risk factors, and promoting greater physical activity”.

January 4, 2014

Beware the “Pour-over Clause”

The formal requirements for a valid will can pose problems when testators seek to incorporate by reference other documents into a will. This is especially problematic where the document intended to be incorporated is changed after the date of the will. This was the issue in a recent British Columbia case.

In Kellogg Estate v. Kellogg, the Court was dealing with what is referred to as a “pour-over” clause. The purpose of the clause was to make a gift under a will to an existing trust. A husband and wife established a family trust for estate planning purposes with their three children as the primary beneficiaries. The trust included a provision that upon the death of the survivor of the husband and wife, the primary beneficiaries were to receive equal shares in the balance; one half distributed on the surviving parent’s death and one half five years later.

The husband and wife both executed wills dated the same date as the trust. Their wills included a bequest of the residue of their respective estates to the trust, to be administered in accordance with the trust, “including any amendments thereto made before my death”. The Wills also included a clause stating that if a bequest to the trust was invalid, the residue of the respective estates were to be managed and distributed under the terms of the trust as it existed immediately prior to its determination of invalidity and incorporated the trust by reference into the will.

Subsequent to the execution of the wills, the parents amended the trust, the primary change being the removal of one child as a beneficiary.

The issue for the Court was whether, firstly, incorporation of the trust into the wills of the parents generally was valid and, secondly, whether the subsequent amendment to the trust was likewise incorporated into the wills.

The Court conducted a review of the relevant law of incorporation into a will. It concluded that incorporation of a document into a will is valid if (1) the document is in existence at the time the will is made and (2) the document is beyond doubt the document referred to. The Court found that the original trust met this test and could properly be incorporated into the parents’ wills.

As for the amendment though, because it post-dated the wills, it did not meet the test for incorporation. As a result, it could only have testamentary effect if it met the requirements of the B.C. Wills Act, in particular the requirement for two witnesses (s. 4 of the Succession Law Reform Act in Ontario). The trust amendment was not witnessed.

But what of that part of the incorporation provision in the wills stating, “including any amendments thereto made before my death”. This provision was not effective to include the amendment as a testator may not reserve the ability to make gifts upon death after the date of the will without complying with the requirements of the Wills Act.

The effect of the decision is that the residue of the estates was a valid bequest to the trust as it existed before the amendment; i.e. with all three children as beneficiaries.

This decision underlies the need to always keep in mind the formality requirements for documents intended to have testamentary effect.