Experts in Estate Matters – Hull on Estates #94
Listen to Experts in Estate Matters.
This week on Hull on Estates, Craig Vander Zee and Sarah Fitzpatrick discuss expert evidence in estate matters. In this episode they outline circumstances when one should use expert evidence, different types of experts, timing of reports, limitations of experts and the court appointed expert.
Experts in Estate Matters – Hull on Estates Podcast #94
Sarah Fitzpatrick: Hi and welcome to Hull on Estates. You are listening to Episode #94 of our podcast on Tuesday, January 22nd, 2008.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and Wills. Now, here are today’s hosts.
Craig Vander Zee: How are you today Sarah?
Sarah Fitzpatrick: I’m fine, thanks Craig. How are you?
Craig Vander Zee: Good. It’s Craig Vander Zee and Sarah Fitzpatrick is with me today. As you well know, I’ve been podcasting with Paul Trudelle the last couple of times, but it is my pleasure, today, to be podcasting with Sarah.
Sarah Fitzpatrick: It’s nice to be here, Craig.
Craig Vander Zee: Have you had a happy new year so far?
Sarah Fitzpatrick: I’ve had a great new year, it’s been busy.
Craig Vander Zee: Yeah?
Sarah Fitzpatrick: But very nice, how about you?
Craig Vander Zee: Yeah it’s been good. Of course, with hockey and my little guys’ playoffs coming up, it gets a bit busy but it’s fantastic to watch them play.
Sarah Fitzpatrick: Excellent.
Craig Vander Zee: Sarah, today I thought that we would touch upon the topic of expert evidence in the context of an estate proceeding. And there is certainly a bunch of topics that you can deal with. I think for today we won’t touch upon selecting an expert or the expert report itself or perhaps an examination-in-chief or the cross examination of the expert. Maybe today we can focus on issues dealing with perhaps the different kind of experts and the discovery and the timing for the provision of the expert report.
Sarah Fitzpatrick: That’s right, and I think perhaps we could start by talking about the circumstances when you would consider using expert evidence.
Craig Vander Zee: Certainly there are a number of different kinds of experts that could be used in an estate context, and again, you know, we’re dealing with different types of claims. They could be passing of accounts in the context of a trust, it could be in the context of an estate, it could be a dependant support claim, it could be a will challenge or other types of estate and trust related proceedings. It could be a guardianship application and there’s medical experts that are required. So there are a number and wide range of experts that you could have. But perhaps we could comment on a couple of them in the context of focusing on assets. And certainly you might have someone assess whether investments in an estate or trust were handled prudently, assess the performance of an investment portfolio, the management of assets in general, evaluation of a current asset. Or perhaps you’re unravelling a family company that was used as a family bank, again in the context of an estate passing of accounts. And there are certainly others.
Sarah Fitzpatrick: Right. That’s right Craig. Some others as well might be the income potential of an asset, the invested rate of return of specific assets. There can be tax issues as well as forensic accounting issues to consider.
Craig Vander Zee: And again, we’re not leaving out the need in certain types of proceedings such as a will challenge, where capacity is in dispute, of medical experts, or psychiatric experts, to deal with the issues in those cases.
Sarah Fitzpatrick: That’s right.
Craig Vander Zee: Now when you do have an expert, it’s critical that you consider the timing for retaining the expert. And part of the reason for that being a factor in your proceeding is that you have to be mindful as to the disclosure requirements at an Examination for Discovery, if there’s going to be Examinations for Discovery in your particular proceeding. And Rule 31.06 of the Rules of Civil Procedure deals with that very aspect.
Sarah Fitzpatrick: They have been defined, Craig, as the findings, opinions and conclusions. It includes such things as notes, data, research, calculations and documents that can be used by the experts to prepare the report.
Craig Vander Zee: Right and when you’re considering that, sort of going back to what the disclosure could be, it’s the findings, opinions and conclusions of that expert engaged by or on behalf of your client that relate to the issue, okay. And knowing what findings, opinions and conclusions might mean, you would want to know whether it’s going to be an obligation that you provide those to the other side. Because if you have an expert report that you don’t intend to rely on, you don’t want to disclose that to the other side. So the Rules…if you can help it at all, and certainly within the confines of the rules. So the Rules also allow you not to disclose the information, that is, not to disclose findings, opinions and conclusions, where the findings, opinions and conclusions of the expert were formed in preparation of contemplated litigation or pending litigation and…and that’s the key part…and you undertake not to call the witness at trial. So, practically speaking, your client is getting examined, and as counsel, you would be there with them at the examination and you’re being asked these questions regarding the expert. And typically, and certainly it’s my practice, that the client would not be answering questions on the expert evidence, that I would be dealing with those questions. And if there was an expert report that we were relying on and we were bound by the Rules to give the findings, opinions and conclusions, then we would deal with that appropriately. But if we weren’t, that’s when we would also have to undertake not to call that witness at trial.
Sarah Fitzpatrick: That’s right Craig.
Craig Vander Zee: Having considered how the expert’s findings, opinions and conclusions might be dealt with at a discovery, and how you might be able to avoid, within the confines of the Rules, of having to reveal or disclose those findings, opinions and conclusions if you don’t have any intention of calling them as a witness, it’s important to consider the service requirements for an expert report because it’s critical that they be delivered in the time provided by the Rules.
Sarah Fitzpatrick: That’s right. So when thinking about service requirements, it is Rule 53 of the Rules of Civil Procedure that deals with this. And specifically, that Rule provides that you have 90 days before the commencement of trial for the person serving the report to serve that on the other side. And there are other time restrictions as well. The person responding to that expert report then has 60 days before the commencement of trial to serve on the other party their expert report.
Craig Vander Zee: Essentially it breaks down into really three critical time periods, as you’ve mentioned, Sarah. And really the first one is 90 days before the commencement of a trial, if you’re serving your report. And then there’s the responding report, as you mentioned, 60 days, at least, before.
Sarah Fitzpatrick: That’s right.
Craig Vander Zee: And then 30 days if you’re doing a reply report. And where it’s critical is that if you miss these time periods as a matter of right, you may find yourself not being in a position of controlling whether the expert report gets in. And by that, I mean if you miss these time periods, the Rules indicate that, subject to another Rule, that is, that grants leave to allow the report to be filed, you may not file that report. So you move from a situation where you have a right and can file the report, assuming that it’s a proper report. You go from a situation where you had a right to enter it, to a situation where you’re not allowed to enter it, unless the Court gives you leave or the other side consents. And if the other side were to consent then that would…then certainly the report would be able to go in. But if you find yourself in a situation where you’ve not complied with the Rules with respect to the service of the report, there is still hope. Rule 53.08 allows for the service of the report in situations where the Court grants leave. And the leave shall be granted on such terms as are just with an adjournment unless, and here’s the key, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial. So in most cases, those last two hurdles can be jumped. But in certain circumstances, perhaps if it was on the eve of trial or during trial that you wanted to have an expert report, you may find a situation where the judge is not prepared to do that. The one caveat with all of that is that the phrase “on terms that are just” usually means cost consequences. And so…but if you file an expert report outside of the time periods allowed, you may find that if the other party isn’t going to consent to it being admitted and filed with the Court…sorry, to allowing the expert report to be received and then having the expert called to trial, you may find yourself facing a cost award that would have to be explained to the client. And so that would obviously…is a situation you want to avoid in every circumstance, if possible.
Sarah Fitzpatrick: The practical matter you should also bear in mind when serving the expert report there are a few key considerations to include. You need to include the CV of the expert. The report should be signed by the expert and needs to include the experts name and address and well as his or her base of qualifications.
Craig Vander Zee: So now that we know when to serve the report and we know how it’s going to be dealt with in examination for discovery at least in terms of the scope, we should be mindful as to the number of experts at a trial.
Sarah Fitzpatrick: Right and they are actually limited to 3 on each side. If the party intends to call more than 3 it’s important to give notice of one’s intention to call more than those 3 that are allowed.
Craig Vander Zee: Well that’s right and in section 12 of the Ontario Evidence Act covers that off, Sarah. And having said that though, there is some debate whether the limitation of 3 witnesses is in respect of 3 experts on the same issue, or 3 experts in total on each side. But as you said, to ensure that you, at least, can address the issue, you put the other side on notice. And if you’re certainly within the time periods, that is, if you’re delivering 3 reports and they are 6 months in advance of the trial, there is a better chance of being able to deal with the issue and trying to work it out, or at least have the issue dealt with before trial, so that you know what your situation is going into the trial, rather than leaving it to a time period when it’s perhaps not as practical to deal with the issues or may have cost consequences.
Sarah Fitzpatrick: Good point, Craig. One last thing that we would like to touch on today is the issue of the Court appointed expert.
Craig Vander Zee: Well, here’s a situation where the Court actually does the appointing of the expert, as the name to the Rule would indicate. It’s really 52.03 of the Rules of Civil Procedure. And what this Rule allows is on motion, or on the judge’s…motion by a party, or on the judge’s own initiative, the Court appoints an expert report in the situation. And it could be that each side has an expert on a matter, both seem to be equally qualified, perhaps even equal in terms of their experience and credibility, but have completely different findings. And maybe the Court wants another expert to come in and deal with it. It could very well be that the expert reports in a particular case are unsatisfactory. Maybe they don’t address all the issues and the judge feels rather than having the parties go out and agree to get further expert reports, that it’s just easier for the Court to take charge of the issue. And what the Court would typically do is make an order that would deal with the content of that report in a sense of what the issue is going to be. But it would also include how the expert is going to get paid, you know, with respect to the preparation of the report, the daily attendance in Court for that expert, who should bear the cost of the report itself and would also touch upon typically directions regarding the delivery of the report to the parties, and the potential cross-examination of that expert by those parties. And so the order wouldn’t be in a vacuum, it would be in a situation that would have directions with it so that there is a clear understanding as to what that expert is supposed to do, what he or she is to be paid and the availability of that expert for cross- examination by the parties so they have ample opportunity before going into trial of testing the evidence of that expert.
And I think with that, we’ve ended our discussion today, Sarah. I think next time we’ll touch upon, as I mentioned at the beginning of the podcast today, what you might consider in selecting an expert, the report itself, and if we have time during that podcast, items that you might consider when cross-examining or doing an examination-in-chief of the expert. I can say that it has been a real pleasure podcasting with you today. I wouldn’t know it, that this was your very first podcast. And I look forward to our next.
Sarah Fitzpatrick: Well thanks Craig, I look forward to our next one as well.
This has been Hull on Estates with the lawyers of Hull & Hull. The podcast you have been listening to has been provided as an information service. It is a summary of current legal issues in estates and estate planning. It is not legal advice and you are reminded to always talk with a legal professional regarding your specific circumstances.
To listen to other podcasts, or to leave a question or comment, please visit our website at www.hullandhull.com.
Our theme music is Upper Structure by DJ AKid and is courtesy of the Podsafe Music Network.