Earlier this week, I blogged on the FDRIO 2023 Annual Conference (located here). I’m back with a Part 2 on the keynote address from Justice Gertrude Speigel.
The latter part of Justice Spiegel’s discussion revolved around expert reports. As it stands now, judges often have to deal with conflicting expert opinions which are sharply in line with the position of the party that retained them.
Justice Spiegel began this discussion by talking about a decision from Justice Mesper in Plese v Herjavec. An issue in this case involved the valuation of several properties and businesses, so both sides retained experts to provide a valuation. When commenting on the valuations, Justice Mesper remarked:
I have always been tempted to ask valuators whether their opinions would have been the same had the other party retained them. I have never given in to that temptation, but merely make the observation. It seems to me that in order to provide the court with truly independent, unbiased and reliable opinions, it would be preferable to require the parties to jointly retain a single expert, or, perhaps, to require the parties to fund an expert who would be retained by the court, at the parties’ expense.
Similarly to Justice Mesper, Justice Spiegel suggested that a better option for expert reports would be for the parties to jointly retain an expert to provide one report on the issue. If the parties were unable to settle before trial, both parties would be allowed to cross-examine the expert at trial.
As Lorne pointed out during the discussion, British Columbia has amended their Supreme Court Family Rules in line with this concept. For expert opinions on financial issues, the parties must jointly retain an expert unless the court orders otherwise or the parties otherwise agree.
I think the idea of joint expert reports is very intriguing. Certainly, there is a clear concern that if a jointly retained expert produces a report adverse to your client’s position, it could effectively ruin your client’s case. It would put lawyers in a difficult position to try to navigate through an unfavourable report. However, there are potential positive outcomes as well. This could reduce the access to justice issues where one of the parties is able to afford an expert and the other is not. It could also push more matters towards settling before trial, thereby reducing the costs to the parties, and potentially lightening the burden on the judicial system.
It will be interesting to see if any other provinces follow British Columbia’s suit.
Thank you for reading!
Darien Murray