Jointly Retained Experts: Mowers v Acland

Mowers v Acland, 2015 ONSC 1313

This case addresses the issue of jointly retained experts.

Background

The parties in this matter jointly retained an expert in their family law matter in his capacity as a chartered business valuator. “The engagement letter provided for a valuation report setting out [the expert’s] conclusion as to the fair market value of shares in two corporations, and for an income determination report setting out his estimate of the income available to the respondent for support purposes” (paragraph 1).

The Respondent in this matter brought a motion to expand the role of the expert and the scope of his retainer as it would be quicker and less expensive. The question before the Court in this matter was whether it had the authority to order the expert to perform the requested tasks without the consent of both parties.

Analysis

The Court commenced its analysis by considering Rule 20.1(1), (3), (4) and (5) of the Family Law Rules. The provisions provide the following:

  • 20.1 (1) It is the duty of every expert who provides evidence in relation to a case under these rules,
    • a. to provide opinion evidence that is fair, objective and non-partisan;
    • b. to provide opinion evidence that is related only to matters that are within the expert’s area of expertise; and
    • c. to provide such additional assistance as the court may reasonably require to determine a matter in issue.
  • 20.1 (3) The court may, on motion or on its own initiative, appoint one or more independent experts to inquire into and report on any question of fact or opinion relevant to an issue in a case.
  • 20.1 (4) An order under subrule (3) appointing an expert shall name the expert and, where possible, the expert shall be a person agreed on by the parties.
  • 20.1 (5) An order under subrule (3) appointing an expert shall contain the instructions to be given to the expert, and the court may make any further orders that it considers necessary to enable the expert to carry out the instructions.

The Court found that it has the power to appoint an expert under Rule 52.03 of the Rules of Civil Procedure since 1984 and the above are not new rules which ”signal a change to the approach taken to the use of experts” (paragraph 9). The Court further found that the expert in this matter cannot be described as an independent expert for the purpose of rule 20.1(3) as there is an existing joint retainer relationship that he has with each of the parties.

The Court continued its analysis by finding that it is the Respondent in this matter who “needs to establish the income tax liability attached to his assets so that he may achieve a reduction in his net family property” (paragraph 14). It follows from such reasoning that it is the Respondent who requires the assistance of an expert and not the Court.

The Court held that there are strong policy reasons to encourage the use of joint experts, including the saving of time and expense, narrowing conflict and promoting early resolution of disputes. In the event that the Family Law Rules were amended or interpreted so as to enable the Court to expand the terms of a joint retainer without the consent of both parties, litigants would be deterred from agreeing to retain a joint expert. It may also deter experts from accepting joint retainers so “as to avoid the possibility of being unwillingly placed in a position of conflict of interest with one or other client at some future point in time” (paragraph 19).

Given the above, the Court held that it lacks the authority to expand the terms of the joint retainer and dismissed the motion.

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