BLAKE MOORE. and FACTUM OF THE INTERVENOR, THE CANADIAN INSTITUTE OF CHARTERED BUSINESS VALUATORS

Transcription

1 Court of Appeal File No. C58338 BLAKE MOORE Respondent (Plaintiff) and DR. TAJEDIN GETAHUN, THE SCARBOROUGH HOSPITAL-GENERAL DIVISION, DR. JOHN DOE and JACK DOE Appellant (Defendants) FACTUM OF THE INTERVENOR, THE CANADIAN INSTITUTE OF CHARTERED BUSINESS VALUATORS September 11, 2014 AIRD & BERLIS LLP Barristers and Solicitors Brookfield Place Suite 1800, Box Bay Street Toronto, ON M5J 2T9 Courtney Raphael LSUC No C Tel: Fax: Lawyers for the Intervenor, The Canadian Institute of Chartered Business Valuators

2 TO: LENCZNER SLAGHT ROYCE SMITH GRIFFIN LLP Barristers Suite Adelaide Street West Toronto, ON M5H 3P5 J. Thomas Curry LSUC No V Tel: Jaan Lilies LSUC No Tel: Fax: Lawyers For The Appellant, Dr. Tajedin Getahun AND TO: PAPE BARRISTERS PROFESSIONAL CORPORATION Barristers 1 Queen St. E. Suite 1910 Toronto, Ontario M5C 2W5 Paul J. Pape Tel: Fax: Lawyers for the Respondent, Blake Moore AND TO: BEARD WINTER LLP Lawyers 130 Adelaide Street West Suite 701 Toronto, Ontario M5H 2K4 John A. Olah Tel: Fax: Lawyers for the Intervenor, Canadian Defence Lawyers Association

3 AND TO: McCARTHY TETRAULT LLP 66 Wellington Street West Suite 5300, P.O. Box 48 Toronto, Ontario M5K 1 E6 William D. Black Tel: Fax: Lawyers for the Intervenor, The Holland Access to Justice in Medical Malpractice Group AND TO: PALIARE ROLAND ROSENBERG ROTHSTEIN LLP Barristers 155 Wellington Street West 35th Floor Toronto, Ontario M5V 3H1 Linda Rothstein Tel: Jean-Claude Killey Tel: Tel: Fax: Lawyers for the Intervenor, The Advocates' Society AND TO: OATLEY, VIGMOND Personal Injury Lawyers LLP 151 Ferris Lane Suite 200 Barrie, Ontario L4M 6C1 James L. Vigmond Tel: Fax: Lawyers for the Intervenor, Ontario Trial Lawyers Association

4 AND TO: HENEIN HUTCHINSON LLP 235 King Street East 3rd Floor Toronto, Ontario M5A 1J9 Marie Henein Tel: Fax: Lawyers for the Intervenor, The Criminal Lawyers' Association

5 Court of Appeal File No. C58338 * L Respondent (Plaintiff) and DR. TAJEDIN GETAHUN, THE SCARBOROUGH HOSPITAL -GENERAL DIVISION, DR. JOHN DOE and JACK DOE Appellant (Defendants) FACTUM OF THE INTERVENOR, THE CANADIAN INSTITUTE OF CHARTERED BUSINESS VALUATORS PART I INTRODUCTION 1. From time to time, the technical nature of facts in a legal proceeding may require a trier of fact to rely upon expert opinion evidence in order to make findings on those facts; findings the trier of fact would not be able to formulate on their own. It has been repeatedly recognized by legal practitioners, parties to legal proceedings and the courts that while courts may, on particular occasions, permit the use of expert opinion evidence, there are certain dangers associated with it. In particular, there exists the danger that an expert may not act independently and objectively in providing its opinion evidence and therefore reliance on such biased evidence could lead to a miscarriage of justice. 2. For decades, the courts have dealt with the potential bias of experts by assessing the credibility of the expert through testimony in court (as is done with all other witnesses), which task is aided by the requirement that an expert produce the contents of their file relating to the foundation of their expert opinion as expressed in their report. If the expert is shown to have

6 Page 2 acted in a biased manner, the expert can be disqualified or the evidence and report can be given no weight. Moreover, an expert has an inherent personal incentive not to act in a biased manner given the possibility that a negative decision will result from the court and be made publicly available thereby impacting further opportunities to be retained as an expert witness. 3. Two common instances necessitating the use of expert opinion evidence, as outlined in an expert report, are when a party's business must be valued and/or losses quantified. Such expert opinion evidence is typically provided by a Chartered Business Valuator ( "CBV") accredited by the intervenor, The Canadian Institute of Canadian Business Valuators ("CICBV"). An important requirement of a CBV in this context is the ability to communicate their analysis and conclusions effectively and comprehensively; or put another way, to ensure that the reader of their report will understand its contents. The dialogue and interaction between counsel and a CBV, as more fully discussed below, is acknowledged by CBVs to be an integral part of the process to prepare their reports. 4. In the reasons for decision of the Honourable Madam Justice Janet Wilson dated January 14, 2014 ("Reasons"), the Learned Trial Judge makes certain statements and conclusions regarding the interaction between counsel and expert witnesses in relation to the preparation of their reports for use in legal proceedings. 5. One of the Learned Trial Judge's most significant statements is set out at paragraph 50 of her Reasons, wherein she concludes 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 report are no longer acceptable." Reasons for Decision of the Honourable Madam Justice Janet Wilson, dated January 14, 2014 ("Reasons"), Appellant's Appeal Book and Compendium ("Appellant's Compendium"), Tab 3, para. 50, pp The Learned Trial Judge later made the following further statements on this issue:

7 Page 3 "The practice formerly may have been for counsel to meet with experts to review and shape expert reports and opinions. However, I conclude that the changes in Rule preclude such a meeting to avoid perceptions of bias or actual bias. Such a practice puts counsel in a position of conflict as a potential witness, and undermines the independence of the expert. If counsel seeks clarification or amplification after receipt of an expert's final report, all communication should be in writing, and any communication should be disclosed to the opposing party." Reasons, Appellant's Compendium, Tab 3, at paras. 50, 298 and 299, pp and As a summary, the CICBV respectfully submits that the Learned Trial Judge's statements that interactions between counsel and an expert to review and shape a draft expert report, are improper and should stop, and that there be, in essence, absolute disclosure of communications between counsel and the expert ought to be reversed for the following reasons: (a) prohibiting interactions between counsel and the expert creates a significant risk that the expert will not be able to properly and effectively carry out their primary role, which is to assist the trier of fact in understanding evidence outside their range of expertise so that an appropriate conclusion can be drawn; (b) prohibiting interactions between counsel and the expert is impractical and will result in unintended consequences such as increased and unnecessary costs and delay; and, (c) prohibiting interactions between counsel and the expert and requiring absolute disclosure of all counsel and expert communications will very likely decrease the two primary intended purposes of the Rules and the amendments thereto, being access to justice and the early resolution of proceedings.

8 Page 4 8. The basis for the Learned Trial Judge's statements was that the amendments to the Rules of Civil Procedure (the "Rules"), which brought Rule 4.1 and amended Rule into force, changed "the role of expert witnesses" such that their primary duty is to assist the court. The Learned Trial Judge further stated that discussions between counsel and experts regarding draft reports undermines the purpose of Rule 53.03, which is said to be to ensure the expert's independence and integrity. Rule of the Rules of Civil Procedure Reasons, Appellant's Compendium, Tab 3, at paras. 50, 298 and 299, pp and The CICBV respectfully submits that the Learned Trial Judge's statements were based on an erroneous conclusion that the amendments to the Rules changed the role of the expert. An expert's primary role has always encompassed the principle that an expert's overriding duty is to assist the court, and in doing so, the expert must act with independence and integrity. In that regard, over two decades ago, the CICBV established a Code of Ethics and Standards of Practice, two of which specifically address the preparation of valuation and expert reports. Both the Code of Ethics and Standards of Practice require that CBVs act independently and objectively in preparing their valuation or expert reports. CICBV Practice Standard 110, Brief of Authorities of the Intervenor, The Canadian Institute of Chartered Business Valuators ("CICBV's Brief of Authorities"), Tab 1, paras. 1, 2, 10.1 (h) and (i); Practice Standard 310, CICBV's Brief of Authorities, Tab 1, paras. 2 and 6.1 (g) and (h) CICBV Code of Ethics, CICBV's Brief of Authorities, Tab 2, p 4, points 1 and 4 and p. 10, sections 401 and 402 Hall v Kawartha Karpet & Tile Co., [2007] O.J. No. 4293, 2007 CarswellOnt 7135, CICBV's Brief of Authorities, Tab 3, para. 12 (Sup Ct) 10. Contrary to the Learned Trial Judge's statements, the amendments to the Rules did not change any role of expert witnesses, but rather, were intended to codify the expert's existing

9 Page 5 duties and require an expert to certify that they are aware of and understand this duty, as a way to make the expert "pause and consider" their reports and their duties. Ontario, Honourable Coulter A. Osborne, "Civil Justice Reform Project" (November 2007), ["Osborne Report'], CICBV's Brief of Authorities, Tab 4, p Moreover, the statements of the Learned Trial Judge are unclear as to what interactions between counsel and an expert would constitute an interaction to "shape a draft expert report". Arguably, all interaction and dialogue between counsel and the expert would go to shaping the expert's report. Having said that, it appears that in making her statements, the Learned Trial Judge failed to consider the other roles played by expert witnesses throughout the course of a legal proceeding that necessarily require interaction and dialogue between the expert and legal counsel. 12. At the end of the day, experts want to provide assistance to the court and to provide such assistance in the most appropriate, effective and practical manner. In addressing her concerns, the Learned Trial Judge's statements that interactions between counsel and experts are improper, while made for a laudable purpose, have unintended and far-reaching consequences that go further than required in order to address her concerns. PART II - THE FACTS 13. The CICBV takes no position with respect to the facts on this appeal. PART III - ISSUES AND LAW ISSUE: Whether interactions between counsel and an expert to review and shape a draft expert report are improper and ought to stop. The Role of an Expert and the Decisions of Courts to Maintain Expert Impartiality 14. The primary role of an expert is to assist the trier of fact in understanding evidence outside his or her range of experience so that the trier of fact is able to draw a conclusion in

10 Page 6 relation to that evidence. While the foregoing is an expert's primary role, as will be further discussed below, expert witnesses play other significant and important roles in the litigation process. R v D(D), 2000 SCC 43, CICBV's Brief of Authorities, Tab 5, para. 50, [2000] 2 SCR It is commonly recognized that, in order to be of assistance to the trier of fact, experts must remain objective. The issue of ensuring the independence and integrity of expert witnesses has been one that the courts have struggled with for decades and which has been discussed in many cases at all levels of courts and tribunals across Canada. Eastern Power Ltd. V. Ontario Electricity Financial Corp., 2008 CarswellOnt 5635 (Sup Ct), CICBV's Brief of Authorities, Tab 6, para. 292 Bank of Montreal v. Citak, 104 A.C.W.S. (3d) 110, 2001 CarswellOnt 944, CICBV's Brief of Authorities, Tab 7, para. 5 (Sup Ct) 16. In an attempt to discourage counsel from becoming too involved in the production of expert reports, judges have only suggested that communications between counsel and experts be disclosed, not stop altogether. 17. To deter the use of experts as advocates instead of independent and unbiased experts, it is within a sitting judge's power to disqualify an expert or give little or no weight to the expert evidence if there is a concern regarding the expert's independence and objectivity. Crossexamination of the expert by counsel for an opposing party is the process by which the expert's lack of independence and objectivity can be exposed. To assist in this effort, courts have required disclosure of parts of the expert's file. R. v. Inco Ltd., 2006 CanLll (ON SC), CICBV's Brief of Authorities, Tab 8, paras. 42 and 45

11 Page In determining the appropriate extent of disclosure of an expert's file, courts have tried to balance the protections afforded by litigation privilege with the ability of the court and opposing parties to assess the likelihood of an expert's bias. The resulting balance struck by the courts is to order production of the foundational information of an expert's opinion. In a recent decision, Ebrahim v. Continental Precious Minerals Inc., Justice D.M. Brown addressed the disclosure requirements of an expert witness, relying upon the statements from an authoritative evidence law textbook authored by Sopinka, Lederman, and Bryant, as follows: "After reviewing the cases on both sides of the debate, the learned authors offered the following views: Generally, the implied waiver (by the expert taking the stand or having his or her report tendered into evidence) should be narrowly construed and the privilege should be maintained whenever it is fair to do so. The waiver of litigation privilege should be restricted to material relating to formulation of the expressed opinion. No doubt the witness should be subject to cross-examination on the factual basis of the opinion...as to the expert's credibility, caution should be exercised before that becomes the basis for wide-ranging disclosure of all solicitor-expert communications and drafts of reports. Certainly, confidential communications which are not the foundation of the expert opinion are not waived. In any event, it might just lead to a general practice among solicitors of destroying drafts after they are no longer needed just to avoid the problem" [emphasis added] Ebrahim v. Continental Precious Minerals Inc., 2012 ONSC 1123 [Commercial List], CICBV's Brief of Authorities, Tab 9, para. 73 Thermapan Structural Insulated Panels Inc v Ottawa (City), 2014 ONSC 2365, CICBV's Brief of Authorities, Tab 10, paras The issue of ensuring an expert's impartiality and integrity has long been grappled with by the courts. The common law has evolved to strike the appropriate balance between ensuring an experts' impartiality and affording protection to the communications between counsel and an expert. The common law was in essence then codified by the amendments to the Rules. The statements of the Learned Trial Judge, which in its result, prohibits interactions between counsel

12 Page 8 and an expert and requires absolute disclosure of all communications between the expert and counsel, is contrary to the common law and the amended Rules. (a) Interactions between counsel and experts are required in order for experts to properly and effectively perform their function 20. Simply put, in order for experts to properly and effectively perform their function of assisting the trier of fact in determining a complex technical issue, interactions between the expert and the counsel are required. 21. Experts are required to assist the court in making determinations on complex technical matters. In order to provide this assistance, expert reports, which form the basis of the expert's testimony, must be clear, comprehensive and accurate. The accuracy of the expert's report also provides the other side with notice of the case it has to meet. Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97 (Ont. C.A.), CICBV's Brief of Authorities, Tab 11, para The interactions between counsel and experts often occur for the following purposes: (a) To ensure the contents of the expert report is limited to those facts, opinions and conclusions as are necessary for the court to decide upon the issue; (b) To ensure that the report is clear and comprehensive and can, in fact, provide assistance to the court; (c) To ensure that the expert report is relevant and fit for its intended purpose; (d) To facilitate the expert's collection of information and documents that are required in order to reach the opinion or conclusion; (e) To familiarize the expert on the principles of law governing the matter to be decided;

13 Page 9 (f) To provide an ongoing evaluation as to the appropriate scope and level of detail and analysis of a report,' considering such factors as the likelihood of trial and the respective cost to the party; and (g) To raise the expert's attention to issues within the report from a legal perspective, rather than the technical perspective of the expert and his reviewing peers. 23. Producing a comprehensive and suitable expert report requires the inclusion of appropriate content. Without guidance, an expert may include extraneous facts that are not relevant to the question they are attempting to answer. The presence of unnecessary information and difficult to understand "technical jargon" takes away from the comprehensiveness of the report and may confuse the trier of fact. Communication with a lawyer, particularly the lawyer for the client retaining the expert, assists in minimizing extraneous information in expert reports. 24. CBVs provide a variety of expert opinions, including but not limited to, opinions falling within the categories of valuing businesses and quantifying losses. It is often the case that counsel unknowingly requests opinions or reports which may not be suitable for the intended purpose. Counsel and experts must be able to discuss the purpose of the report and the proper report to be provided. 25. The opinions and reports provided by experts, in particular CBVs, require certain facts and documents, and CBVs must interact with counsel so that the necessary facts and documents can be obtained from the necessary party. 1 As a specific example, CBVs are able to prepare three different types of valuation reports with ranging scope and detail. The type of valuation report is a matter to be discussed and agreed upon by the valuator and counsel; see CICBV Practice Standard 110 at paras 4, 5, 6 and 7.

14 Page It is difficult to see how an expert, in particular an expert such as a CBV, could prepare a report that could assist a trier of fact in determining a complex commercial issue such as valuing a business or quantifying losses of a business, without consultations between the CBV and the lawyer. (b) Interactions between counsel and experts are necessary as a matter of practicality 27. A second significant concern, should the prohibition on interactions between counsel and an expert be implemented as posited by the Learned Trial Judge, are the impractical results and consequences that will likely occur. 28. The first most likely and most significant consequence, should interaction and dialogue between counsel and an expert be prohibited, is that the expert may not be of assistance to the court. Put simply, from this intervenor's perspective, a CBV may not be able to perform their intended function. Without dialogue between counsel and the expert, reports may not be clear and comprehensive or responsive to the question posed to the expert. Further, the report may refer to extraneous, incorrect, or unproven facts or assumptions, which further confuses and complicates the ability of the trier of fact to understand the basis and foundation for the expert's opinions and conclusions. 29. A second possible unintended consequence of not permitting dialogue between counsel and an expert is that potential experts with knowledge and expertise that are valuable to the specific issues raised in a proceeding may be deterred from acting in this role due to a lack of experience. The ultimate result may be that only those experts who are experienced at preparing expert reports will be able or willing to take on the role. Ultimately, a party and the court may lose the opportunity to utilize and benefit from a potential expert's specialization and expertise as a result of inexperience, in light of the framework governing counsel and expert interactions imposed by the Learned Trial Judge in this proceeding.

15 Page A third possible unintended consequence of implementing the Learned Trial Judge's prohibition is that an expert witness may have to receive advice from another expert or from another lawyer, to assist in the preparation of their report and to achieve the many purposes of dialogue and interaction between counsel and experts as set out in paragraph 22, above. In that regard, it is interesting to note that the Learned Trial Judge herself took issue with the failure of one of the expert's to understand the difference between scientific causation and the legal test for causation. Such matters are not ones that subject matter experts would necessarily recognize or appreciate. Reasons, Appellant's Compendium, Tab 3, p. 59, para The foregoing is not meant to be an exhaustive list of unintended consequences. Other possible consequences include, but are not limited to, the following: (a) The back and forth written communications to clarify or amplify a final expert report will take significantly longer and will be more costly than having a meeting or verbal discussion; (b) The expert who has been requested to provide an expert opinion in the form of a report, will no longer be able to advise the lawyer or party on the merits of certain issues in the case. The party will have to retain a second expert for the purpose of providing advice as the legal proceeding is ongoing; (c) The expert may prepare a final report that does not rely on accurate, relevant or up-to-date information, and the expert, when receiving the more accurate, relevant or current information, will have to issue addendums to account for the updated information. It will be extremely difficult to review a report and several

16 Page 12 addendums to determine the expert's ultimate conclusions and on which facts such a conclusion was reached; and (d) The expert's final report, being prepared without the benefit of interaction with counsel, may be so completely inadequate for its purpose, so as to warrant the need to obtain a new expert to prepare a fresh report, rather than attempt to revise the initial report through a process of correspondence. 32. It could be argued that the foregoing consequences will not result as counsel can seek clarification or amplification of the expert reports after the final report has been delivered. However, such a process will result in a significant amount of material to review (a final report, numerous correspondence back and forth between counsel and expert given the lack of interaction prior to the creation of the final report, further versions of the final report, more correspondence, further versions of the report, and so on) in order to understand, if possible, the final version of the report that is eventually created. The clear and comprehensive expert report that assists the court in making a determination on a complex technical matter will be difficult to achieve and the costs associated with obtaining an expert report will greatly increase. 33. Accordingly, the prohibition contemplated by the Learned Trial Judge is impractical and results in unintended consequences that are contrary to the purpose and role of an expert witness in a legal proceeding. (c) Prohibiting Interactions between Counsel and Experts Inhibits Access to Justice and Deters the Early Resolution of Proceedings 34. While the amendments to the Rules, in particular the amendments relating to experts in Rules 4 and 53.03, were intended to decrease the possibility of expert bias and partiality, one must weigh that against the goals of other amendments to the Rules.

17 Page The two most significant goals underlying the Rules of Civil Procedure and the amendments made thereto are access to justice and promoting the early resolution of proceedings. These two goals go hand in hand in that the early resolution of proceedings increases access to justice. Osborne Report, CICBV's Brief of Authorities, Tab 4, at p The issues of cost and delay as they relate to access to justice has also been federally acknowledged by the Canadian Judicial Council in their 2008 report on recommendations for reform in the civil justice system. The report discusses the amendments to evidence rules under Ontario's Rules of Civil Procedure in the context of attempting to reduce cost and delay. Canada, Canadian Judicial Council, "Access to Justice: Report on Selected Reform Initiatives in Canada", by Sub-committee on Access to Justice (Trial Courts) of the Administration of Justice Committee (June 2008), CICBV's Brief of Authorities, Tab 12, para. 7 and The implementation of rules as an attempt to promote efficiency has also been noted by the courts. When speaking to the purpose of expert evidence rules, Huddart, J, as she then was, for the Supreme Court of British Columbia stated that: "the policy behind [the expert evidence disclosure rule] is two-fold, to promote the adversarial fact finding process... and to promote efficiency in the judicial process by avoiding unnecessary delay and permitting the identification of areas of disagreement so that the settlement process might be enhanced." [emphasis added] Haida Inn Partnership v Touche Ross & Co, 1989 CanLII 2668, CICBV's Brief of Authorities, Tab 13, para. 10 (BC SC) Huddart, J, as she then was, based her conclusion on a review of Federal reports on law reform as well as commentary from her peers. 38. The Learned Trial Judge's conclusions on expert reports focuses on the expert's ultimate function of testifying at trial and ensuring fairness and impartiality when giving said testimony. Having said that, the Learned Trial Judge's conclusions ignores other aspects of the

18 Page 14 expert's role in the litigation process, including giving preliminary opinions to assist the party in decisions on whether to settle a claim or an issue in the claim and participating in what are referred to as "hottubbing sessions" with other experts in order to resolve and narrow issues. These other roles played by experts in the litigation process are integral to meeting the goals of access to justice and promoting the early resolution of proceedings. Rules of Civil Procedure, RRO 1990, Reg 194, r 20.05(2)(k) Osborne Report, CICBV's Brief of Authorities, Tab 4, paras. 23 at Experts and counsel must necessarily interact during the expert's performance of their other roles. For instance, the interactions between counsel and experts include testing the expert's opinions, conclusions and the basis for same. Such an exercise allows a party to gain an understanding of the validity and strength of their position, and promotes the possibility of early resolution of proceedings. 40. Moreover, as set out in the foregoing section of this factum, prohibiting the interactions between counsel and experts will very likely lead to increased costs and delay of proceedings, which decreases access to justice. 41. Most significantly, if the Rules Committee when amending the Rules had intended to eliminate interactions between counsel and experts, such a prohibition could have been incorporated into the Rules but it was not. The only logical conclusion is that a prohibition on interactions between counsel and experts was not considered either necessary or practical in order to achieve the goal of decreasing expert bias and impartiality. 42. It is important to remember that experts are humans and they are not perfect. An expert's possible bias is not always related to influence by legal counsel. Experts, just like any other person, are susceptible to influence from their own personal experiences or views or by the party on whose behalf the report is being prepared. As such, even if interaction between

19 Page 15 counsel and experts were not permitted, the issue of expert bias will still exist and the tools and process available to safeguard against expert bias will still need to be employed. 43. The CICBV respectfully submits that, taking everything into account, the possible deleterious effects of implementing the Learned Trial Judge's statements far outweigh the possible benefits of same. PART IV - ORDER REQUESTED 44. For all of the reasons set out in the within factum, the CICBV respectfully requests that the Learned Trial Judge's statements that interactions between counsel and an expert to review and shape a draft expert report, are improper and should stop, and the related statements regarding disclosure of the expert file ought to be reversed. ALL OF WHICH IS RESPECTFULLY SUBMITTED Date: September 11, ourtney W - f6r the Intervenor, nadian Institute of Chartered Business Valuators

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21 Page 16 SCHEDULE "A" LIST OF AUTHORITIES 1. CICBV Practice Standard 110 at paras 1, 2, 10.1 (h) and (i); Practice Standard CICBV Code of Ethics, p 4, points 1 and 4 3. Hall v Kawartha Karpet & Tile Co., [2007] O.J. No. 4293, 2007 CarswellOnt Ontario, Honourable Coulter A. Osborne, "Civil Justice Reform Project" (November 2007) 5. R v D(D), 2000 SCC 43 at para 50, [2000] 2 SCR Eastern Power Ltd. V. Ontario Electricity Financial Corp., 2008 CarswellOnt 5635 (Sup Ct) 7. Bank of Montreal v. Citak, 104 A.C.W.S. (3d) 110, 2001 CarswellOnt R. v. Inco Ltd., 2006 CanLll (ON SC) 9. Ebrahim v. Continental Precious Minerals Inc., 2012 ONSC 1123 [Commercial List]) 10. Thermapan Structural Insulated Panels Inc v Ottawa (City), 2014 ONSC Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97 (Ont. C.A.) 12. Canada, Canadian Judicial Council, "Access to Justice: Report on Selected Reform Initiatives in Canada", by Sub-committee on Access to Justice (Trial Courts) of the Administration of Justice Committee (June 2008) 13. Haida Inn Partnership v Touche Ross & Co, 1989 CanLII 2668

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23 Page 17 SCHEDULE"B" LIST OF STATUTES RULES OF CIVIL PROCEDURE, RRO 1990, REG 194 Rule EXPERT WITNESSES Experts' Reports (1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference required under Rule 50, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). O. Reg. 438/08, s. 48. A party who intends to call an expert witness at trial to respond to the expert witness of another party shall, not less than 60 days before the pre-trial conference, serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1). O. Reg. 438/08, s A report provided for the purposes of subrule (1) or (2) shall contain the following information: 1. The expert's name, address and area of expertise. 2. The expert's qualifications and employment and educational experiences in his or her area of expertise. 3. The instructions provided to the expert in relation to the proceeding. 4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates. 5. 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. 6. The expert's reasons for his or her opinion, including, i. a description of the factual assumptions on which the opinion is based, ii. a description of any research conducted by the expert that led him or her to form the opinion, and iii. a list of every document, if any, relied on by the expert in forming the opinion. 7. An acknowledgement of expert's duty (Form 53) signed by the expert. O. Reg. 438/08, s. 48. Schedule for Service of Reports Within 60 days after an action is set down for trial, the parties shall agree to a schedule setting out dates for the service of experts' reports in order to meet the requirements of subrules (1) and (2), unless the court orders otherwise. O. Reg. 438/08, s. 48. Sanction for Failure to Address Issue in Report or Supplementary Report An expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set out in,

24 Page 18 (a) a report served under this rule; or (b) a supplementary report served on every other party to the action not less than 30 days before the commencement of the trial. 0. Reg. 348/97, s. 3. Extension or Abridgment of Time The time provided for service of a report or supplementary report under this rule may be extended or abridged, (a) by the judge or case management master at the pre-trial conference or at any conference under Rule 77; or (b) by the court, on motion. 0. Reg. 570/98. s. 3; 0. Reg. 186/10, s. 4 Rule 20.05(2)(k) (k) that any experts engaged by or on behalf of the parties in relation to the action meet on a without prejudice basis in order to identify the issues on which the experts agree and the issues on which they do not agree, to attempt to clarify and resolve any issues that are the subject of disagreement and to prepare a joint statement setting out the areas of agreement and any areas of disagreement and the reasons for it if, in the opinion of the court, the cost or time savings or other benefits that may be achieved from the meeting are proportionate to the amounts at stake or the importance of the issues involved in the case and, (i) there is a reasonable prospect for agreement on some or all of the issues, or (ii) the rationale for opposing expert opinions is unknown and clarification on areas of disagreement would assist the parties or the court;

25 BLAKE MOORE And DR. TAJEDIN GETAHUN, et al. Court of Appeal File No. C58338 COURT OF APPEAL FOR ONTARIO PROCEEDING COMMENCED AT TORONTO FACTUM OF THE INTERVENOR, THE CANADIAN INSTITUTE OF CHARTERED BUSINESS VALUATORS AIRD & BERLIS LLP Barristers and Solicitors Brookfield Place 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9 Tel: Fax: Courtney Raphael - LSUC No C Lawyers for the Intervenor The Canadian Institute of Chartered Business Valuators