The Importance Of Experts Reports

On January 31, 2020, the Ontario Court of Appeal released its decision in MTCC No. 1100 v. A.G. Shanks Plumbing and Heating Limited.  In this case, the MTCC No. 1100 claimed damages arising out of a fire that destroyed a historic mansion, which was part of a condominium development in Toronto.

Counsel for the Condominium stated at the opening of the trial, that he did not intent to call expert evidence on the plumber’s standard of care, because the plumbers conduct was egregious and it was obvious that his conduct obviously fell below the standard. Counsel did however call expert evidence concerning the causation of the fire which was allegedly caused by the flame of the plumber’s torch.

The problem for the Condominium Corporation was that the Court found the plumber’s evidence to be both credible and reliable. Although the plumber did not adduce any expert evidence, the Court was not able to make the connection as to how the fire could have started in light of the plumber’s evidence.

            The Court held that “it was incumbent upon the plaintiffs to lead expert evidence to establish the appropriate standard of care in order for the court to find that it had been breached. They did not do so and because of this their claim must be dismissed.”

To be successful in a claim for negligence, a plaintiff must provide that:

1. The defendant owed a duty of care;
2. The defendants breached the standard of care;
3. They sustained damages;
4. The damage was caused, in fact and in law, by the defendant’s breach;

Because the Condominium Corporation failed to call expert evidence to show the plumber’s conduct fell below the applicable standard of care, the trial judge was open to conclude, as he did, that the Condominium Corporation had failed to prove, on the balance of probabilities, that the plumber breached this standard.

Generally speaking, expert evidence is not always required where the evidence concerns ‘non-technical matters’ or matters of which an ordinary person may be expected to have knowledge.  As expert reports can be expensive to obtain, there may be a temptation to forgo obtaining reports and to rely simply on the facts of a case. As this case proves, not retaining an expert can be costly. Not only did the condominium corporation lose out on the opportunity to recover it damages, it had to pay the defendants legal fees and a further $40,000.00 on losing the appeal.

When reviewing the facts of your case with your lawyer, if the subject has not been broached, ask your lawyer whether an expert is, or will be needed.  Not only will this help shape the landscape of the litigation but will help you budget for a necessary expense that may bring about settlement or an award at trial.  If you are successful, the costs associated with retaining an expert can be reimbursed by the Court, or as part of a negotiated settlement.  Plaintiffs often will require an expert to prove that a standard of care has been breached, while Defendant’s on the other hand, will require expert evidence to rebut the Plaintiff’s expert and to prove that no standard of care was breached.

The litigation team at Elia Associates regularly consult with experts on a wide range of subject matters and are skilled at identifying when experts are needed. If you have any questions, we would be happy to help.

All of the information contained in this article is of a general nature for informational purposes only, and is not intended to represent the definitive opinion of the firm of Elia Associates on any particular matter. Although every effort is made to ensure that the information contained in this newsletter is accurate and up-to-date, the reader should not act upon it without obtaining appropriate professional advice and assistance.

www.elia.org

© Elia Associates Professional Corporation, All Rights Reserved