September 17, 2024
Applications are an alternative form of proceeding. An application may be commenced rather than an action where there are unlikely to be factual disputes. Evidence in applications usually takes the form of affidavits.
But what about expert evidence?
The Ontario Court of Appeal, in 1000029174 Ontario Inc. v. Miculinic Investment Corp. emphasizes a couple of important points if you rely upon expert evidence in an application. Neither of these is really news, but the errors recur so the reminder is relevant.
Expert evidence should consist of an affidavit from the expert. Many applications make the mistake of simply attaching an expert report to someone else’s affidavit. This makes the expert opinion inadmissible as hearsay.
Second, the affidavit of the expert must contain the same statements regarding an expert’s duty to the court as are required in a report prepared for an action. These statements are designed to encourage experts not to be biased in favour of the party paying them.
It is the job of the Superior Court judge hearing the application to act as a gatekeeper, and ensure that expert evidence complies with these rules, or is not considered. Failure to do so is an appealable error and may result in the application being sent back to Superior Court for rehearing. That results in unnecessary delay and expense.
WHAT WEILERS LLP CAN DO TO HELP YOU
At Weilers LLP, our litigation team:
- Knows the Rules of Civil Procedure and
- stay current on how they are interpreted.
- We are conscious of cost and the need to avoid delay (in most cases).
- We will ensure that the court has the information needed to play the role of gatekeeper the first time.
If expert evidence may be important to your case, or you are otherwise concerned about cost and delay, give us a call and see if Weilers LLP are the right lawyers for you.