November 9, 2021
Evolving case law and amendments to the Rules of Civil Procedure encourage parties to retain experts in civil litigation. For example, in a negligence action, it is often impossible to prove what the standard of care is, not to mention whether the standard was met, without an expert. Even in property of contract disputes, experts are routinely used to opine on the question of breach, or damages.
A successful party typically expects to be reimbursed for the costs of these experts, which can be substantial. This is true in most cases even if the expert ends up not testifying – their report may have an impact that makes their evidence unnecessary. Offers to settle may also impact the awarding of expert costs.
Unlike counsel fees (which are reduced on assessment of costs under concepts of partial or substantial indemnity), when expert costs are awarded, they are normally payable in full without reduction. Normally, but not always.
A recent Ontario Court of Appeal decision on the costs of an appeal points out that in all cases where the cost of the expert is claimed from the opposing party, those costs must be reasonable and not excessive. As the court puts it: “the fact that a party may have paid its expert an exorbitant fee for their services does not mean that the other party must pay that amount. The other party must only pay what the court views as reasonable for the services provided”.
Factors affecting reasonableness may include:
- the complexity of the matter
- the size of the claim
- whether the case has precedential value
- the number of experts involved
- the necessity of their evidence
- the proportionality of expert fees to counsel fees
In the case under appeal, the expert costs were awarded in full, but the focus on this cost in the award is a useful and timely reminder not to take costs for granted.
When instructing your lawyer to retain an expert on your behalf, you should consider the cost of that expert, not only because you must pay it out of pocket, but also because you may not recover that cost, and if you do, you may not recover it fully, even where you are successful. Although the use of an expert may be necessary, caution should be taken in selecting the correct expert at a reasonable cost.