The Alberta Court of Queen’s Bench, in CNOOC Petroleum North America ULC v. 801 Seventh Inc., struck out material portions of two expert reports filed by the plaintiff on a pre-trial basis. This complex trial is scheduled for October and the background to the litigation can be found at 2020 ABQB 198, 2020 ABQB 224, 2021 ABQB 81 and 2021 ABQB 861.

The scope, nature and purpose of expert reports has been set out by the Supreme Court of Canada in various cases including R. v Mohan [1994] 2 S.C.R.9 and in White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23. Simply put, at the first stage of assessing the admissibility of an expert report, the court must determine whether the expert evidence meets the threshold for admissibility namely, whether the evidence is relevant, necessary to assist the trier of fact, not subject to an exclusionary rule and is proffered by a proper qualified expert. If the court is satisfied that the evidence meets those preconditions, the trial judge at the second stage must assess whether the evidence is sufficiently beneficial to the trial process to warrant its admission. The second step largely amounts to a cost benefit analysis which involves weighing the helpfulness of the evidence against the risks associated with its admission.

The issue in the pre-trial application was how the admissibility framework operates in a pre-trial setting. While the court acknowledged the paucity of jurisprudence on the topic, it ultimately held that a pre-trial application to exclude expert evidence should restrict its consideration to the first stage of the test for admissibility namely, identifying whether the report meets the threshold for admissibility. In rejecting consideration of the second stage of the test at such a pre-trial application, the court acknowledged that a trial judge is in the best position to determine those issues.

The first expert report considered by the court was tendered by an Ontario lawyer with an extensive practice in commercial leasing. The first part of his report commented on “the evolution of environmental, health and safety provisions and leases for commercial office space in Canada and whether the provisions of the lease reflect that evolution”. The lawyer provided his opinion as to the strength of the health and safety provisions in the lease and what was purportedly in the minds of “sophisticated and well advised tenants” in lease negotiations throughout the decades respecting such clauses. The report also ventured into other areas, including the risk allocation inherent in lease provisions and what might qualify as a “first class” office building. In the second section, the report commented on “the context in which quiet enjoyment clauses have evolved and the industry-expected hallmarks of quiet enjoyment in the early to mid-2010s”. The report traced the purported evolution of the concept of quiet enjoyment and the interpretation of quiet enjoyment clauses in Canadian jurisprudence and commented on that evolution.

In striking the entirety of that report, the court noted that questions of law are within the purview of the court and that expert evidence which includes legal conclusions on the issues to be determined at trial is generally inadmissible. The court also noted that it is expected that the development of domestic law can be explained by counsel, not by experts. Moreover, the court held that the interpretation of contractual provisions is not subject to expert evidence. Also, the court rejected the argument that the report was somehow evidence of the “surrounding circumstances” of the contract. Finally, the court held that the second section of the report was essentially legal argument disguised as expert opinion, replete with personal opinion and speculation as to the thoughts and minds of the parties based on his review of the contract. Ultimately, the court held that the report was neither relevant nor necessary and that it should not be admitted in whole or in part.

A second expert report was proffered by an occupational hygienist who was asked to explain how the regulatory framework operated in the circumstances. That report provided a broad overview of the regulatory framework and included views of its legislative objectives. Later in the report, the expert proffered an opinion regarding various testing methods used by consultants despite the expert not conducting any testing himself and having viewed the building only once. Ultimately, the court struck portions of that report on the basis that certain portions contained, among other things, arguments as to why certain contractual interpretations should prevail, personal observations as to the intentions of the drafters of legislation, opinion which ascribed a shared view to a group and paragraphs in which the expert advocated in favor of a particular interpretation.

Parties should, when proffering expert reports, ensure that the reports satisfy the threshold for admissibility and do not contain, among other things, subjective speculation, opinions on the ultimate issue, personal observations regarding the intention of the drafters of legislation and other irrelevant and unnecessary material. In addition, parties and their counsel should be mindful of the fact that otherwise inadmissible evidence cannot be cured by attempting to categorize it as part of the “surrounding circumstances” or “factual matrix” of a contract.