Presented to: Canadian Geotechnical Society Annual Conference — September 29, 2014

Introduction:

It’s not always easy being an engineer.[1] This paper provides some guidance to engineers as they face contradictory ethical and legal obligations with respect to their duty to the public, to their client, and to the courts.

I. What Is Your Duty to the Public?

As an engineer, your duty to public safety is of utmost importance. This is reflected in the rules that govern your profession. For instance, the Code of Ethics prescribed by the Regulations of the Ontario Professional Engineers Act (the “Ontario Code of Ethics”) provides that a practitioner shall regard his or her duty to public welfare as paramount.[2]Similarly, in British Columbia engineers have an obligation to “hold paramount the safety, health and welfare of the public, the protection of the environment and promote health and safety within the workplace”.[3]The Canadian engineering tradition of the iron ring is demonstrative of the importance the profession gives to public safety and welfare.

Indeed, your duty to public welfare supersedes any obligation to your clients or employers.[4]This can have important practical implications where you face potential disasters that are later seen as preventable. For instance, you may find yourself in a dilemma between your obligation to public safety and your duty of loyalty to the client. Such a dilemma can be particularly problematic when serious economic consequences are involved. The most infamous example of this was the loss of the space shuttle “Challenger” in 1986, after management overruled clear warnings provided by engineers on the dangers of launching the shuttle at a low temperature. You may also expose yourself to legal liability in the event you disclose confidential information without appropriate authorization, even if the purpose of disclosure is to protect the public.

If you find yourself in such a conflict, you should advise your employer or the client (preferably in writing) of your concern.[5] If they overrule your recommendation and continue to pursue a course that is harmful to the public, you should report the unsafe condition to your professional association or to the appropriate public authority.[6] If the client persists in the dangerous activity, you may be forced to cease acting on the project.[7]

II. What Is Your Duty to the Client?

Your duty to the Client  requires that you act with fidelity, integrity and competence. There are two common areas where engineers experience problems with respect to this duty.[8]

First, you should only accept work for which you are specifically qualified. This requires technical knowledge, experience and the necessary training to properly perform the task. Additionally, it requires that you seek out services of those with specialized knowledge to address issues outside your competence.

For example, engineers who place their seal on a plan in a field of engineering where they lack the required competence will be sanctioned by the disciplinary committee of their jurisdiction.[9]  

If you are asked to be an expert witness, you must ensure you have some knowledge in the specific area of the case that would not be already available to the judge or to a lay jury. An engineer is not entitled to give opinion evidence because of a generalized expertise in the area of engineering or rocks. As will be discussed below, this is consistent with your duty to serve the client competently, but is also required by the duty owed to the courts.

Second, you have a duty to avoid circumstances where there is an conflict of interest with the client. In the event of such a conflict, most codes of ethics require engineers to disclose the information to the client.[10] This includes accepting financial or other compensation from more than one party for the same services or accepting compensation from suppliers for promoting their products.[11]

What Happens If an Engineer Does Not Meet the Duty Owed to the Client?

Well, you’ll probably get sued.

The exact consequences that may arise from a breach of duty will depend on the nature of that duty. For example, an expert in a trial regarding flooding prepared a report for the City of Ottawa. Homeowners had claimed that the City failed to ensure that the City drainage system was adequate. The City used the expert report, which stated that the drainage was adequate, to defend the action against those homeowners.

In addition, the City relied on the expert’s report in planning not to upgrade their drainage system in the future. Lo and behold, there was another incidence of flooding, and the City was sued again. In response to this suit, the City tried to sue its own expert witness from the initial trial, claiming that they had reasonably relied on the expert report and that the report was negligent. The court stated that the law was unsettled, but decided the case on procedural grounds.[12]

This is a case of good news and bad news.

First, the good news. For the past 400 years, in England, where most Canadian common law comes from, expert witnesses have been immune from litigation arising from their testimony in trial.

The bad news? That rule was abolished in May of 2011 by the U.K. Supreme Court in Jones(Appellant) v Kaney (Respondent).[13]

Jones v Kaney

In Jones, the UKSC reviewed the purposes of expert witness immunity including:

  1. To protect witnesses who have given evidence in good faith from being harassed and vexed by unjustified claims;
  2. To encourage honest and well meaning persons to assist justice; in the interests of establishing the truth and to secure that justice may be done; and
  3. To secure that the witness will speak freely and fearlessly.[14]

The underlying theme here is that expert immunity prevents the chilling effect that potential liability may have on witnesses who testify before the courts. But if the rule is not broken, why abolish it?

The Court made a distinction between witnesses of fact (ordinary witnesses) and experts on the basis that experts owe a duty to their client, stating:

A significant distinction between an expert witness and a witness of fact is that the former will have chosen to provide his services and will have voluntarily undertaken to provide a duty to his client for a reward under contract whereas the latter will have no such motive for giving evidence.[15]

Lord Phillips reasoned that there was no empirical evidence to support or disprove the thesis that immunity is necessary to ensure that expert witnesses give full and frank evidence to the Court. Instead, the Court reasoned that the “witness of integrity” will do so and questioned whether a fear of being sued would actually encourage a witness to breach his or her duty to the Court.[16]

The Court wrote,

It is paradoxical to postulate that in order to persuade an expert to perform the duty that he has undertaken to his client it is necessary to give him immunity from liability for breach of that duty.[17] 

The Court also doubted whether there is a realistic basis for the argument that a diligent expert witness will be harassed by vexatious claims for breach of duty. The Court wrote, “the rational expert witness who has performed his duty is unlikely to fear being sued by the rational client.”[18]

For these reasons, the UKSC abolished immunity for expert witnesses.[19]

What About Expert Immunity in Canada?

Although in Canada the law still remains unsettled, at $60,000.00 on average for a three-day trial in Superior Court, with no certain outcome and the real prospect of going all the way to the Supreme Court, you do not want to be the test case.

And regardless of whether liability in negligence attaches to an engineer’s report or testimony, he or she will be liable for breaching client retainer agreements.

Can You Limit Your Duty to the Client?

Yes. Engineering expert witnesses can be retained for many reasons: to assist with an internal investigation, to provide testimony in court, etc. Regardless of the purpose of the retainer, clients will place great reliance on your opinion. This reliance can be curtailed through the use of limitation of liability clauses or disclaimers. A disclaimer is meant to delineate the scope of rights and obligations stemming from an opinion, such as one rendered in a report. The nature of the disclaimer will vary depending on the purpose of the report.

For example, in the context of conducting inspections, a commonly used disclaimer will limit the scope of the report to the site conditions on the day of the inspection, and make no guarantees as to the future condition of what is inspected.

For litigation reports the most common disclaimer is to limit the use of the report to counsel and or the party who has retained the expert for court use only, and not to be relied upon for a future project by the other party in the litigation or by the public at large.

Disclaimer clauses are essentially an engineer’s shield to defend themselves against the client’s sword. Such a clause would have protected the engineer described in the case above against the City of Ottawa. See example clauses in Annex A and Annex B.

III. What is your Duty to Courts?

As an expert witness, you are retained, informed and compensated by one party in the litigation. However, your duty is strictly to the court. For example, Rule 4.1 of the OntarioRules of Civil Procedurestates:

DUTY OF EXPERT

4.1.01  (1)  It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules,

  1. to provide opinion evidence that is fair, objective and non-partisan;
  2. to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and
  3. to provide such additional assistance as the court may reasonably require to determine a matter in issue.

Duty Prevails

(2)  The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.[20]

The lawyer retaining you has asked you to give your honest opinion at trial on the facts as you see them. If, in meeting with the lawyer before trial, it becomes apparent that your opinion is not helpful, you will not be called on by that lawyer. But your opinion must be honest and your credibility must be above reproach because it most certainly will be under scrutiny.

Furthermore, it is not enough for you to not be biased. You must not appear to be biasedeither. All of the communications between you and the lawyer who retains you will be provided to the opposition so that they may cross examine you as to whether you considered any facts in forming your opinion that were irrelevant, or failed to consider any facts that were relevant.

Is the Expert Witness-Lawyer Relationship Subject to Privilege?

Expert witnesses do not qualify for solicitor-client privilege for the simple reason that the expert witness is not the client, despite the fact that the expert is supporting the client’s case. However, communication between a lawyer and a third party that occurs in the context of litigation is privileged, subject to any specific disclosure requirements. Lawyers refer to this as “litigation privilege”. Expert reports are protected by litigation privilege until the lawyer decides to call the expert witness at trial, at which point disclosure obligations will arise.

For example, if an expert witness is retained to give a report, the lawyer’s discussions with the expert are privileged. Once the lawyer decides to call the expert at trial, he or she will have to disclose the report in order to comply with civil discovery obligations. This may include all communications that the lawyer has had with the expert witness.

This means that if a report is unhelpful to the case, and the lawyer does not wish to use it at trial, it does not have to be disclosed. However, if the lawyer wants to call the expert witness at trial, they may have to disclose any correspondence with the expert witness, including emails, meeting minutes, notes from telephone meetings, etc.

The purpose behind this is based on the court’s belief that an opposing party should be able to explore with an expert whether he or she changed their views from the draft and determine what information those changes were based on.

So When Should You Accept a Commission as an Expert Witness?

(A)       Sufficient Competence

Engineers have statutory obligations to be competent expert witnesses in court. For example, the Regulations to the Ontario Professional Engineers Act require an engineering expert witness not to “express opinions on professional engineering matters that are not founded on adequate knowledge and honest conviction”.[21]

Courts are not shy about exposing expert witnesses who fails to meet this standard.

In Labbee v Peters, the court heard testimony from an expert accident reconstruction witness who made so many errors in his report and testimony that the judge dismissed his opinion evidence in its entirety. The court stated:

One person in the Grande Prairie court room did not know how a grain truck unloads grain. Unfortunately for the defence case, that person was its expert accident reconstruction witness.

...the presence of so many errors in an opinion that a witness knows will be relied on makes me uncomfortable about Mr. Keith's approach...Mr. Keith's testimony about the operation of the grain box on the truck is so egregious an error that, combined with his other errors and changes I reject his opinions entirely.[22]

Similarly, in GVWD the court held:

The GVWD did not call any expert who was qualified to refute these opinions. Neither Mr. Gummow nor Mr. Wise, the two experts GVWD relied on, were chemists and neither had the expertise to opine on the impact of trapped vapours and gasses and what impact the seal coat would have on trapped vapours and gasses.[23]

Before being retained as an expert witness, you should first review the issues to ensure you have sufficient competence in the subject matter.

(B)       Conflicts

Before agreeing to serve as an expert witness, you should also examine your professional and personal affairs to ensure there is not conflict of interest with the parties to the action. This is consistent  with the engineer’s duty of impartiality to the court and is required by the Regulations in the Act. Section 77.4 requires engineers to:

...disclose immediately to the practitioner’s client any interest, direct or indirect, that might be construed as prejudicial in any way to the professional judgment of the practitioner in rendering service to the client.[24]

In the event of  a conflict, you may still be permitted to serve as an expert witness provided both parties and their legal counsel consent to proceed regardless of the conflict. Failure to disclose this information may result in disciplinary action by the professional association in your province.

For example, the Association of Professional Engineers in BC censored a member who prepared a mining report which stated that he had no direct or indirect interest in the claim, but failed to disclose that he held a blank bill of sale to the claim as trustee for the owner. The disciplinary committee stated that the engineer should have disclosed all details of his involvement concerning matters in the report, whether direct or indirect, to avoid even the appearance of a conflict of interest.[25]

There are circumstances where you cannot serve as an expert witness even with the client’s consent for fear of breaching your duty of neutrality and impartiality to the court. This will likely occur where the opposing party in the action is a current client of yours. In this case, you must judge whether your opinion will be influenced by the future relationship with the client.

(C)       Confidentiality

As an expert witness, you may find yourself in a conflict between your statutory obligations and your obligations to disclose information as an expert witness.

In their day-to-day practice, engineers are often contractually obliged not to share information obtained in the course of their work. In addition to this contractual obligation, the Regulations to the Act provide that:

A practitioner shall act in professional engineering mattes for each employer as a faithful agent or trustee and shall regard as confidential information obtained by the practitioner as to the business affairs, technical methods or processes of an employer and avoid or disclose a conflict of interest that might influence the practitioner’s actions or judgment.[26]

Conversely, as an expert witness you must disclose all material information in your report. You cannot exclude information from the report on the basis that the client wants to keep it confidential. While testifying in court, you will likely be asked to reveal the source of your information and will not be able to protect information even if promises of confidentiality were given.

How Can You Meet Your Duty of Independence to the Court?

(A)             Demeanour while Testifying:

Expert witnesses cannot be seen to advocate for the party retaining them.[27] In fact, courts have routinely diminished the weight they give to expert witness testimony in instances where the witness appears to zealously advocate for one side, where they employ an argumentative tone with opposing counsel or if they refuse to concede any points that are harmful to their party’s case.

In addition, when negotiating the retainer to be an expert witness, the engineer should avoid fee structures where payment is contingent on a successful outcome in court. This will make the engineer appear to be less than independent.[28]

(B)              Expert Reports

As an expert witness, your report is the primary means of conveying evidence to the court. As a result, it is essential that these reports exhibit the same level of independence and impartiality as the expert witness’ themselves. For example, Rule 53 of the Rules is unequivocal about the need for an expert witness report to be independent and impartial. Sub-rule 53.03(2.1) requires that the report include:

  • The expert’s name, address, and area of expertise.
  • The expert’s qualifications, employment, and educational experiences in his or her area of expertise.
  • The instructions provided to the expert in relation to the proceeding.
  • The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.
  • The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.
  • The expert’s reasons for his or her opinion, including:
    • A description of the factual assumptions on which the opinion is based;
    • A description of any research conducted by the expert that led him or her to form the opinion; and
    • A list of every document, if any, relied on by the expert in forming the opinion.
  • An Acknowledgment of Expert’s Duty signed by the expert.[29]

Courts have been critical of expert reports that simply mirror the position of the party that retains them. If an expert report is challenged for impartiality, the court can demand production of all communication between counsel and the expert to ensure that counsel has not exerted undue influence.   

In Flinn v MacFarland, an engineer was retained to provide an accident reconstruction report. The expert returned a preliminary report to the lawyer who provided comments on it. Upon receiving the comments, the expert revised his report.[30]  The lawyer attempted to withhold the correspondence from the court by claiming privilege[31] on the basis that the correspondence discussed “tactics and strategy.” The court took a dim view of “the propriety of discussing with such an independent Expert questions of ‘tactics and strategy’”.[32](emphasis added)

The court in Flinn was also concerned that the lawyer had influenced the engineer’s final opinion. This issue arose again in Greater Vancouver Water District v. North American Pipe & Steel Ltd where the court stated:

In performing and reporting his statistical analysis, Mr. Aben was selective in the test results he used, and ignored the test results that were favourable to NAP. Mr. Aben testified that he was told by the GVWD to ignore the favourable results on the “diameter pipes and to only use the failures of the 84” diameter pipes in his statistical analysis regarding the extent of the adhesion failure.[33]

You will want to avoid these sorts of embarrassing revelations by writing a neutral report and not having any communications with the lawyer retaining you that would reveal any sort of bias.

(C)             Peer Review & Drafts

If you makes changes to a draft report after consultation with a colleague, you should keep both drafts available so that the changes that resulted from the consultation can be disclosed. Additionally, the fact that this kind of peer consultation occurred should be reported as well.

While changes made to subsequent draft reports as a result of consultation must be disclosed, research conducted prior to the production of a first draft does not need to be disclosed.  You are permitted to discuss the facts generally with your peers while considering the issues at hand without needing to disclose the nature of these communications. However, the fact that these consultations occurred should be recorded in a general manner.

(D)             Testing

When confirmatory testing must be done, you should oversee the process, including the selection of the laboratory to be used and the personnel involved. You should have firsthand knowledge of the procedures used by the laboratory to maintain personal credibility of their opinions, which (hopefully) will be based on the test results. Your credibility will be severely diminished in court if you are unable to answer questions about the procedures that were utilized.

If a client requests that you refrain from using a particular methodology or omit part of the testing, subsection 72(2)(f) of the Ontario Regulations to the Act require that you inform the client of any consequences that may occur as a result of the deviation. If you are testifying in Ontario, you may be required to disclose this communication based on a recent Ontario Superior Court of Justice decision.

When Can an Expert Witness Communicate with Counsel?

In a January, 2014 decision, Justice Wilson of the Ontario Superior Court ruled that counsel cannot consult privately with their expert witness once they have received the first draft of their reports. In Moore v Getahun, Justice Wilson stated:

... the purpose of Rule 53.03 is to ensure the expert witness’ independence and integrity. The expert’s primary duty is to assist the court. In light of this change in the role of the expert witness, I conclude that counsel’s prior practice of reviewing draft reports should stop. Discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable.

If after submitting the final expert report, counsel believes that there is need for clarification or amplification, any input whatsoever from counsel should be in writing and should be disclosed to opposing counsel.

I do not accept the suggestion in the 2002 Nova Scotia decision, Flinn v. McFarland, 2002 NSSC 272 (CanLII), 2002 NSSC 272, 211 N.S.R. (2d) 201, that discussions with counsel of a draft report go to merely weight. The practice of discussing draft reports with counsel is improper and undermines both the purpose of Rule 53.03 as well as the expert’s credibility and neutrality.[34] [Emphasis added.]

This decision has caused much concern in the legal community as many see the ongoing communication between lawyers and their experts as essential to proper representation of their client. For instance, the Advocates Society, a prominent Ontario based legal advocacy organization has rejected Justice Wilson’s decision and affirmed the necessity of ongoing consultation between legal counsel and their experts.[35]

Additionally, The Holland Group, an organization of prominent medical malpractice lawyers, have announced that they will continue to review and discuss draft reports with experts pending an appeal of the decision to the Ontario Court of Appeal.[36]

If you are retained as expert witnesses, you should discuss the current state of the law with your clients and their legal counsel.

The Law in Flux

In addition to the law around communication with expert witnesses, there is a fair amount of contradictory jurisprudence relating to the independence and bias of expert witnesses.  The Supreme Court of Canada recently agreed to hear an appeal on the issue of witness independence.[37] Specifically, the Court will determine whether the independence of an expert witness should be considered at the admissibility stage or whether the issue of independence goes strictly to how much weight a testimony is given. One can expect the impact of this decision to be quite significant in the law of expert witnesses.

Annex A – Example of Disclaimer Provisions in the Contract

The following contractual provisions were upheld by the British Columbia Supreme Court inSalgado v. Toth, 2009 BCSC 1515:

  1. The condition of certain systems, components and equipment will be randomly sampled by the inspector. Examples of such systems, components and equipment are window/door operation and hardware, electrical receptacles, switches and lights, cabinet/countertop mounts and functions, insulation depth, mortar, masonry, paint and caulking integrity and roof covering materials. Furniture, rugs, appliances, stored items,etc. will not be moved for the inspection.
  2. The INSPECTOR will give a professional opinion on whether those items inspected are performing their intended function at the time of the inspection or are in need of immediate repair. The inspection and report are based upon observations of conditions that exist at the time the inspection was performed.
  3. Cost estimates, if provided, are “ballpark” estimates only and are not intended to be relied upon by any person for accuracy. The CLIENT should obtain written bids from qualified licensed contractors in order to determine the possible cost of repairs.
  4. The Client is encouraged to participate in the visual inspection process and accepts responsibility for the consequences of electing not to do so, i.e. incomplete information being available to the Inspector. 

Annex B – Example Statement of Qualifications and Limitations

The attached Report (the “Report”) has been prepared by X (the “Consultant”) for the benefit of the Y (the “Client”) in accordance with the agreement between Consultant and Client, including the scope of work detailed therein (the “Agreement”).

The information, data, recommendations and conclusions contained in the Report:

  • are subject to the scope, schedule, and other constraints and limitations in the Agreement and the qualifications contained in the Report (the “Limitations”)
  • represent Consultant’s professional judgement in light of the Limitations and industry standards for the preparation of similar reports
  • may be based on information provided to Consultant which has not been independently verified
  • have not been updated since the date of issuance of the Report and their accuracy is limited to the time period and circumstances in which they were collected, processed, made or issued.
  • must be read as a whole and sections thereof should not be read out of such context
  • were prepared for the specific purposes described in the Report and the Agreement
  • in the case of subsurface, environmental or geotechnical conditions, may be based on limited testing and on the assumption that such conditions are uniform and not variable either geographically or over time

Unless expressly stated to the contrary in the Report or the Agreement, Consultant:

  • shall not be responsible for any events or circumstances that may have occurred since the date on which the Report was prepared or for any inaccuracies contained in information that was provided to Consultant
  • agrees that the Report represents its professional judgement as described above for the specific purpose described in the Report and the Agreement, but Consultant makes no
  • other representations with respect to the Report or any part thereof
  • the case of subsurface, environmental or geotechnical conditions, is not responsible for variability in such conditions geographically or over time

The Report is to be treated as confidential and may not be used or relied upon by third parties, except:

  • as agreed by Consultant and Client
  • as required by-law
  • for use by governmental reviewing agencies

Any use of this Report is subject to this Statement of Qualifications and Limitations. Any damages arising from improper use of the Report or parts thereof shall be borne by the party making such use. 

This Statement of Qualifications and Limitations is attached to and forms part of the Report.

Delna Contractor