Since the reform of the Code of Civil Procedure of Quebec, which came into force in January 2016, the courts can impose joint expert evidence in some circumstances. In a judgment rendered on February 28, 2019 in the matter of Webasto v. Transport TFI 6, the Court of Appeal specified the conditions required to appoint a joint expert, in the context of class action proceedings.
Pursuant to article 158 C.C.P., at any stage of a legal claim, for case management purposes, the court may, on its own initiative or on request, take measures to simplify or expedite the proceedings, notably as regards expert evidence.
Accordingly, the court can assess the relevance or necessity of expert opinions in view of the issues raised by the dispute. Further to article 158(2) C.C.P., the court may also impose joint expert evidence in certain conditions, « if it is necessary to do so to uphold the principle of proportionality and if, in light of the steps already taken, doing so is conducive to the efficient resolution of the dispute without, however, jeopardizing the parties’ right to assert their contentions ».
The Judgment of the Quebec Court of Appeal
In Webasto, the plaintiff Transport TFI filed a class action against enterprises, alleging that the latter plotted with their competitors in order to artificially control the price of heating systems, thereby unduly restricting competition.
Following certification of the class action, the parties could not agree on the expert evidence to be adduced. While TFI wished to file a joint expert report from an economist in order to establish the value of damages, the defendants objected, being of the view that this was not appropriate given the criteria of article 158(2) C.C.P. The first instance judge chose to impose a joint expert to assess the economic impact of the alleged reproaches, and to determine the appropriate market and to explain the parties’ various theses.
In a judgment released on February 28, 2019, the Quebec Court of Appeal overturned the decision of the Superior Court, and authorized each party to retain its own expert regarding the issues of the relevant market, the economic impact of the alleged faults, and on quantum.
In doing so, the Court of Appeal noted that, while the C.C.P. seeks to simplify litigation and to increase collaboration between the parties, « the central principle of civil procedure is that of adversarial principle ». Accordingly, the reform of the C.C.P. did not set joint expert evidence as the rule, and the opportunity to impose same should be assessed on a case by case basis. According to the Court of Appeal : « In terms of principles, it is incorrect to assert that joint expert evidence is the rule. The appropriate approach starts by reviewing the nature and components of the litigation between the parties, in order to determine the scope of evidence required to reach a solution.
In this regard, before imposing joint expert evidence, a judge must take into account the guidelines set out by the legislator at article 158(2) C.C.P. These criteria include respecting the principle of proportionality, the efficient resolution of the dispute, and the parties’ right to assert their contentions.
In the Webasto case, the Court of Appeal emphasized that imposing a joint expert would compromise the right to a full answer and defence, as determining the relevant market is a core element of a competition law dispute, and is a task that requires a delicate and complex analysis, over which experts may have diverging views. The Court of Appeal also noted that the first instance judge did not explain the impact of the proportionality principle, nor did he take into account that the defendants had already retained the services of an expert. Therefore, the decision to appoint a joint expert was deemed inappropriate.
The judgment of the Quebec Court of Appeal in the Webasto matter confirms that courts should use caution before imposing joint expert evidence, in light of the importance of the adversarial principle.
In the context of class actions, the courts have imposed joint expert evidence with circonspection, in limited circumstances. Hence, the Superior Court has already ordered the appointment of a joint expert to collect objective data (dust samples, noise levels, etc.), regardless of the liability of the defendant, while allowing that this data be analyzed by the respective experts of the parties.However, the Superior Court has refused to designate a joint expert to assess damages in an action where collective recovery was requested, when it was contested that this was appropriate.
In sum, the courts will be reluctant to impose joint expert evidence on the essential issues of a dispute, in order to preserve the parties’ right to assert their contentions. In this regard, distinct expert opinions will be particularly appropriate for files raising highly technical issues, or on topics about which there are opposing schools of thought.