Expert duties reinforced but decision against lawyer to pay cost is overturned on appeal
EDITORIAL NOTE: The Ontario Court of Appeal overturned a decison of Justice Susan Healey that had ordered Toronto lawyer Jeffrey Steisfield to personally pay costs. To review the decision click here https://www.canadianjusticereviewboard.ca/articles-caselaw/case-law/barbour-v.-bailey,-2016-onca-98
In the original decision emphasizing counsel’s duties around experts, a Superior Court judge had ordered a Toronto lawyer to personally pay a portion of his client’s costs for wasting time and resources after finding he knowingly used a biased witness eventually removed from the case.
On June 18, Superior Court Justice Susan Healey wrongly ordered lawyer Jeffrey Streisfield to pay $98,000 out of $490,000 in costs after finding he knew or should have known of an expert witness’ bias in favour of his client.
In a dispute over land, Streisfield used land surveyor Ronald Stewart’s expertise when he clearly wasn’t an objective witness, according to Healey.
Stewart’s bias allegedly came to light after the claimant in the matter, Angelina Bailey, sought to have all e-mail communication between the expert and Streisfield revealed to the court. The court made what it called a rare order “based upon the fact that Mr. Stewart’s initial evidence under cross-examination conveyed an involvement in the proceeding beyond that expected of an expert witness, and necessitated further exploration of his role in the litigation in order that the court be in a position to properly evaluate his evidence,” according to Healey.
The e-mails suggested Stewart “effectively acted as co-counsel and advocate” of the objector, Gerard Barbour, as opposed to an objective expert witness, the court found.
Stewart’s e-mails to Streisfield contained questions to put to Bailey to challenge her position. He also called another expert witness’ report “a load of BS” and said he “thinks that he can get away with this crap.”
“It defies reason” that Streisfield “could fail to recognize that the expert was too personally involved to objectively comment upon the other expert’s methodology and conclusions,” wrote Healey in Bailey v. Barbour.
“These comments being directed at Mr. Streisfield, as well as other like comments, the court can reach no conclusion other than that he was aware, or should have been, that Mr. Stewart had taken on a role beyond that of an expert witness.”
The judge added: “In these circumstances, this is a case where there is no benefit of any doubt that can be given to the lawyer. The evidence is plain and obvious that Mr. Streisfield breached his obligation to the court in using Mr. Stewart, and in doing so he acted in bad faith and was directly responsible for wasting costs. A costs order against him personally is warranted.”
Streisfield wouldn’t comment on the case beyond the submissions he made to the court but says his lawyer is reviewing the ruling for the purpose of appealing it.
“The fact that the judge was highly critical of the expert is not that unusual; what’s unusual is that they’re holding the lawyer accountable,” says Toronto personal injury lawyer Darcy Merkur of Thomson Rogers.
“So that does raise the bar for lawyers when consulting with their experts. It’s the first time there’s been a jab directly at the lawyer saying enough is enough.”
It’s within judge’s power to make cost orders against lawyers personally, notes Sotos LLP lawyer Jean-Marc Leclerc.
“I think the more interesting [aspect of the ruling] is what led the court to reach that decision in this case,” he says, adding it’s uncommon for a court to order the production of e-mail communication between a lawyer and an expert witness.
“If courts are going to routinely order the production of background e-mails going to and from an experts and counsel, that is certainly going to be a much more different regime than the current one,” says Leclerc.
“Right now, all that currently occurs is the exchange of reports and that’s it.”
In a much-discussed decision in Moore v. Getahun, the Superior Court raised the bar for expert witnesses objectivity when it said lawyers should stop reviewing draft reports. In that case, Superior Court Justice Janet Wilson emphasized that an expert’s primary duty is to the court. That decision is now under appeal.
Barbour is consistent with judges’ growing emphasis that experts are friends of the court, says Merkur.
“There’s a movement by the courts to push the experts to remain totally impartial,” he says.
“This decision supports that decision by saying, ‘Look, experts can go too far by clearly working for one side as opposed to trying to help the court.’”
There’s nothing wrong with an expert communicating with a lawyer for the purpose of pointing out a factual error in another expert’s analysis, says Merkur, but that communication has to be based only on the facts without displaying any bias.