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©2012

EXPERT WITNESS RULES, RULES AND MORE RULES

The role of the expert witness is to assist the court through the provision of an

independent and objective opinion about matters coming within the expertise of the witness.

This duty is paramount. The new Rules streamline the qualification of experts and provide a

code of conduct clarifying the duties and responsibilities of the expert witness in relation to

the Courts. Learn about the new Rules in Canada and the Provinces governing expert

witnesses, and how they may impact your investigation and testimony.

PHILIP LEVI, CFE, FCPA, FCA, CPA/CFF, CA-IFA

Partner

Levi & Sinclair, LLP

Quebec, Quebec

Canada

Mr. Levi graduated in 1970 from McGill University and obtained his CA designation one

year later and was licensed as a Certified Public Accountant in Maine, Florida and North

Carolina in 1996. In 1991 Mr. Levi was recognized by the Ordre des Comptables Agréés du

Québec by conferring upon him the title fellow of the Ordre and in 2002, Mr. Levi was

elected to the Board of Directors of the Quebec Order of Chartered Accountants and to its

executive committee in 2003.

In 1992 he was named a Certified Fraud Examiner and became founding president of the

Association's Montreal Chapter in 1994. He was re-elected as president in 1995 and selected

as the recipient of the Distinguished Achievement Award of the Association of Certified

Fraud Examiners in 1996. In 1997 Mr. Levi was elected to the Board of Regents of The

Association and was selected by the Regents to be Vice-Chairman of the Board. In 2007, Mr.

Levi was selected by the 40,000 member Texas based Association of Certified Fraud

Examiners as the CFE of the Year.

In 2000, Mr. Levi became one of 18 in Québec to be approved by the Alliance for

Excellence in Investigative and Forensic Accounting of the Canadian Institute of Chartered

Accountants and received the “Investigative and Forensic Accountant” designation . Mr.

Levi was a member of the steering committee for the AICPA’s Annual Conference on Fraud

for several years and a member of its Fraud Advisory Committee. In 2008, Mr. Levi was

recognized as “Certified in Financial Forensics” by the American Institute of Certified

Public Accountants.

Mr. Levi has been invited to speak at Canadian and U.S. fraud conferences and has had

numerous articles published on this subject. Mr. Levi has been a member of the teaching

faculty of the Association of Certified Fraud Examiners since 1995 and was the technology

editor and is a member of the editorial board of its magazine, The Fraud Magazine.

©2012

Mr. Levi has been engaged to provide expertise and testimony for the Crown Prosecutor

of the Province of Quebec, The Quebec Provincial Police, the Montreal Police Commercial

Crime Unit, the Syndic of the Order of Chartered Accountants of Quebec, Federal and

Ontario government agencies and numerous public & private Canadian Corporations. During

his 43 year career, he has testified in Federal Court in the States of New York, Pennsylvania,

Texas, California, and Colorado, numerous times in the Quebec, Ontario and British

Columbia court systems as well as the Supreme Court of The Bahamas and St. Kitts and

Nevis.

“Association of Certified Fraud Examiners,” “Certified Fraud Examiner,” “CFE,” “ACFE,” and the

ACFE Logo are trademarks owned by the Association of Certified Fraud Examiners, Inc. The contents of

this paper may not be transmitted, re-published, modified, reproduced, distributed, copied, or sold without

the prior consent of the author.


2012 ACFE Canadian Fraud Conference ©2012 1

NOTES Define Expert Testimony

It is a time-honored rule of common law (and civil law)

jurisdictions that witnesses ought only to relate their

personal observations of events. They are not to attempt to

enter their opinions into evidence in a court of law. The

major exception to this is the expert witness who, because

of his knowledge or experience in a specific area, is

allowed to give opinion evidence. Generally, the rationale

behind this is that judges can’t possibly be knowledgeable

in all areas of human activity and in any event, many cases

before the courts turn on a scientific issue or upon special

knowledge.

“With respect to matters calling for special knowledge, an

expert in the field may draw inferences and state his

opinion. An expert’s function is precisely this: to provide

the judge and jury with a ready-made inference which the

judge and jury, due to the technical nature of the facts, are

unable to formulate. An expert’s opinion is admissible to

furnish the Court with scientific information which is likely

to be outside the experience and knowledge of a judge or

jury. If on the proven facts a judge or jury can form their

own conclusions without help, then the opinion of the

expert is unnecessary.”

—Supreme Court of Canada, R. v. Abbey, [1982] 2 S.C.R.

24

“Admission of expert evidence depends on the application

of the following criteria:

(a) Relevance;

(b) Necessity in assisting the trier of fact;

(c) The absence of any exclusionary rule; and

(d) A properly qualified expert.”

—Supreme Court of Canada, R. v. Mohan, [1994] 2 SCR 9



NOTES The Voir Dire

A proposed expert witness has to first be qualified; a

process of submitting the expert’s qualifications to the

court, usually done by having the witness depose that his

curriculum vitae, then tendered to the court, is truthful in all

regards. If the judge accepts the witness as an expert within

the stated area of qualification, that witness can then give

opinion evidence.

The judge is not bound to any expert evidence and often

has to weigh and prefer the evidence of one expert against

that of another.

An expert must first produce an expertise report that is

introduced into the court record. Of importance is the rule

that the expert may only testify on what is contained in the

report. Therefore, it is important to consider all possible

issues that might need to be brought forward to the trier of

fact, and incorporate them into the report.

Quebec Rule 402.1

Except with leave of the court, no expert witness may be

heard unless his written report has been communicated and

filed in the record in accordance with the provisions of

Sections I and II of Chapter I.1 of this Title. However, in

the case of a motion other than a motion to institute

proceedings, a copy of the report must be served on the

parties at least ten days before the date of the hearing,

unless the court decides otherwise.

The out-of-court testimony of an expert witness, filed into

record in whole or as abstracts, may stand in lieu of his

written report.



NOTES BC Rule 11-7

Reports must be prepared and served in accordance with

rules:

(1) Unless the court otherwise orders, opinion evidence of

an expert, other than an expert appointed by the court

under Rule 11-5, must not be tendered at trial unless

(a) That evidence is included in a report of that expert

that has been prepared and served in accordance

with Rule 11-6, and

(b) Any supplementary reports required under Rule 11-

5 (11) or 11-6 (5) or (6) have been prepared and

served in accordance with Rule 11-6 (5) to (7).

PROFESSIONAL RULES AND CODES

CICA Standard Practices for Investigative and Forensic

Accounting Engagements (Nov 2006)

100.02—These are the minimum standard practices that

should be met by all chartered accountants conducting IFA

engagements (collectively referred to in this document as

“IFA practitioners”).

100.05—IFA standard practices are different from IFA

engagement procedures. Standard practices relate to the

IFA practitioner’s professional skills, the performance of

his or her engagement, and the preparation of his or her

report. IFA procedures are the specific acts or steps

performed by the practitioner to attain his or her objectives

in the particular engagement.

100.08—“Investigative and forensic accounting

engagements” are those that:

(a) Require the application of professional accounting

skills, investigative skills, and an investigative mindset;

and



NOTES (b) Involve disputes or anticipated disputes, or where there

are risks, concerns or allegations of fraud or other

illegal or unethical conduct.

100.17—These IFA standard practices should be applied to

all IFA engagements, and to work performed by all

individuals on such engagements.

100.18—In the context of this document, work means the

work of IFA practitioners, including that performed by

other individuals, within the domain of the IFA

engagement.

100.21—IFA practitioners accepting IFA engagements in a

jurisdiction other than Canada should have adequate

knowledge of, and meet the relevant standards and

regulatory and legal requirements applicable to, that

jurisdiction.

The primary jurisdiction that Canadian practitioners will

encounter is the United States. The U.S. Federal Rules of

Civil Procedure and the Daubert rules are described at the

end of the course material. In addition, reference should be

made to AICPA Practice Aid 10–1 “Serving as an Expert

Witness or Consultant.”

The remainder of the IFA standards consists of the

following sections:

200. Engagement Acceptance

300. Planning & Scope of Work

400. Information Collection & Analysis

500. File Documentation

600. Reporting

700. Expert Testimony



NOTES The two most important sections are 400 and 600. Without

limiting the importance of the entire standard, some of the

most relevant standards are highlighted below.

400.04—IFA practitioners should consider the relevance

of all information that arises during the course of an IFA

engagement.

400.05—IFA practitioners should identify, analyze, assess

and compare all relevant information, assess substance over

form, and develop and test, as needed, hypotheses for the

purpose of evaluating the issues in the IFA engagement.

400.10—IFA practitioners should evaluate the

reasonableness and consistency of all estimates and

assumptions having regard to the IFA practitioners’

competence, expertise and other available relevant

information.

400.12—IFA practitioners should review all information

received during an IFA engagement, and consider its

relevance, reliability, reasonableness, completeness and

consistency with other known engagement information.

400.13—IFA practitioners should consider and address

reasonable alternative theories, approaches and

methodologies that may be relevant to their work.

600.08—All reports should include the following

information:

(a) the name(s) and professional designation(s) of the IFA

practitioners and/or the firm responsible for the report;

(b) who retained the IFA practitioner(s) and to whom the

report is directed;

(c) the date of the report;



NOTES (d) the effective date for the findings and conclusions, if

different from the date of the report;

(e) the objectives and circumstances of the IFA

engagement and the purpose for which the report is

being prepared;

(f) identification of the documents and sources of

information relied upon to prepare the report;

(g) the extent of reliance on the work of others;

(h) the techniques and procedures performed when

preparing the report, including a description of the

approach(es) and rationale for selecting such

approach(es);

(i) any underlying assumptions and the reasons for relying

on such assumptions;

(j) the definition(s) of any technical terms and

interpretations used in the report;

(k) the findings and conclusions reached and any

supporting analyses and charts;

(l) sufficient information to enable the user to relate the

findings and conclusions to the supporting analyses,

information and documents;

(m) any restrictions on the use of the report; and

(n) any scope or other limitations affecting the findings

and conclusions.

Adherence to the above reporting standards should keep the

practitioner onside with most other rules and codes.

Provincial Institute and Ordre’s Codes of Ethics

All of the rules and codes that govern the role of the expert

witness will bring the following basic attributes to the

reliance that will be placed on the expert’s opinion. The

courts do not consider an expert to be excluded simply

because he may not be independent from one of the parties,

in the context of a client–professional relationship (e.g., a

CA who acts as an expert for a client of the firm in which



NOTES he or she is a partner). This potential conflict of interest

will impact the weight placed on the expert’s testimony by

the trier of fact.

The Ontario Court General Division has stated:

“An expert witness is called to provide assistance to the

court in understanding matters which are beyond the

expertise of the trier of fact. Such a witness is not to be an

advocate for one party, but an independent expert. Expert

witnesses are of course paid a fee by the party calling them,

which in itself may be considered to affect their

independence. The court will examine the demeanor of an

expert in the way the evidence is given, in particular

whether the expert takes on the role of an advocate for one

side, or remains objective, in weighing the evidence and

attributing value to the opinion. If the expert does adopt

the attitude of a neutral, then the fact that he is being paid

or that the defendant is his client will cause little or no

concern, but that will not be the case if he appears to lose

his neutrality. In that case the value of his evidence can

diminish significantly.”

However, a lack of independence or conflict of interest, as

defined by the applicable Code of Ethics may have a more

serious impact. Careful attention should be placed on the

following:

1. Independence

a. Family relationship

b. Business interests

2. Objectivity

3. Due Care

4. Training and supervision

5. File retention

6. Engagement letters

7. Liability insurance



NOTES Chartered Business Valuators’ Standards

The CBV has been an important part of numerous types of

litigation and its calculations and opinions generally

incorporate a larger degree of assumptions and estimates

than other forms of financial expertise. The importance of

this field of practice has been recognized in the CBV

Handbook as a separate series of standards, including

Standard 310, 320, and 330.

The CBV’s standards are codified in the CBV Handbook

and generally apply to all three types of valuation reports:

Comprehensive Valuation Report

Estimate Valuation Report

Calculation Valuation Report

Standard 310 includes minimum reporting requirements

that are similar to those in the IFA standards, as well as

specific reporting requirements for valuation reports.

Due to the highly specialized field, the valuation report

must also contain numerous definitions and it is incumbent

upon the valuator to ensure that these definitions are in

accordance with the generally accepted application for the

terminology used in the report.

Standard 320 relates to the scope-of-work standards and are

very similar to those found in the CICA Handbook for

auditing standards as they relate to:

Adequate technical training, proficiency, due care, and

objectivity

Adequate planning and proper execution of all work

Sufficient evidence to support the conclusions in the

report



NOTES Similar to the IFA standards, the CBV must consider the

assumptions and determine their reasonableness and

appropriateness.

Standard 330 relates to file documentation and includes:

A copy of the final report

An engagement letter (not mandatory but

recommended)

Summaries of key meetings, discussions, and

correspondence

Information relied upon

Approach taken and reasoning for its selection

Techniques used and reasoning for their selection

Client representation letter, if deemed necessary

As for all documentation, the question of confidentiality

will be important, in particular with the content and manner

in which the above is written.

ACFE Code of Ethics

All Certified Fraud Examiners must meet the rigorous

criteria for admission to the Association of Certified Fraud

Examiners. Thereafter, they must exemplify the highest

moral and ethical standards and must agree to abide by the

bylaws of the ACFE and the Certified Fraud Examiner

Code of Professional Ethics.

1. A Certified Fraud Examiner shall, at all times,

demonstrate a commitment to professionalism and

diligence in the performance of his or her duties.

2. A Certified Fraud Examiner shall not engage in any

illegal or unethical conduct, or any activity which

would constitute a conflict of interest.

3. A Certified Fraud Examiner shall, at all times, exhibit

the highest level of integrity in the performance of all

professional assignments and will accept only



NOTES assignments for which there is reasonable expectation

that the assignment will be completed with professional

competence.

4. A Certified Fraud Examiner will comply with lawful

orders of the courts and will testify to matters truthfully

and without bias or prejudice.

5. A Certified Fraud Examiner, in conducting

examinations, will obtain evidence or other

documentation to establish a reasonable basis for any

opinion rendered. No opinion shall be expressed

regarding the guilt or innocence of any person or party.

6. A Certified Fraud Examiner shall not reveal any

confidential information obtained during a professional

engagement without proper authorization.

7. A Certified Fraud Examiner will reveal all material

matters discovered during the course of an examination

which, if omitted, could cause a distortion of the facts.

8. A Certified Fraud Examiner shall continually strive to

increase the competence and effectiveness of

professional services performed under his or her

direction.

LEGAL CODES

Federal Court’s Rules

To ensure that expert witnesses understand their

independent advisory role to the Court, a Code of Conduct

has been included as a Schedule to the Federal Courts

Rules.

In addition, the new rule 52.2, applicable to both

applications and actions, requires counsel to provide an

expert witness with a copy of the Code of Conduct and to

file a certificate signed by the expert acknowledging that

the expert agrees to be bound by the Code of Conduct.



NOTES To assist in streamlining the qualification process and to

identify situations where there are disputes as to whether a

witness is qualified to testify as an expert, rule 52.2

requires that the expert witness’s proposed area of expertise

be identified in the report, and that a copy of the expert’s

curriculum vitae accompany the report.

Expert Witnesses

Expert’s affidavit or statement

52.2 (1) An affidavit or statement of an expert witness

shall

(a) set out in full the proposed evidence of the expert;

(b) set out the expert’s qualifications and the areas in

respect of which it is proposed that he or she be

qualified as an expert;

(c) be accompanied by a certificate in Form 52.2 signed

by the expert acknowledging that the expert has

read the Code of Conduct for Expert Witnesses set

out in the schedule and agrees to be bound by it;

and

(d) in the case of a statement, be in writing, signed by

the expert and accompanied by a solicitor’s

certificate.

Failure to comply:

(2) If an expert fails to comply with the Code of

Conduct for Expert Witnesses, the Court may exclude

some or all of the expert’s affidavit or statement.

Limit on number of experts:

52.4 (1) A party intending to call more than five expert

witnesses in a proceeding shall seek leave of the Court

in accordance with section 7 of the Canada Evidence

Act.



NOTES The following are not new rules but are included for

their relevance to expert witness testimony.

Objection to expert:

52.5 (1) A party to a proceeding shall, as early as

possible in the proceeding, raise any objection to an

opposing party’s proposed expert witness that could

disqualify the witness from testifying.

Expert conference:

52.6 (1) The Court may order expert witnesses to confer

with one another in advance of the hearing of the

proceeding in order to narrow the issues and identify

the points on which their views differ.

Presence of parties and counsel:

(2) Subsection (1) does not preclude the parties and

their counsel from attending an expert conference but

the conference may take place in their absence if the

parties agree.

Presence of judge or prothonotary:

(3) The Court may order that an expert conference take

place in the presence of a judge or prothonotary.

Joint statement:

(4) A joint statement prepared by the expert witnesses

following an expert conference is admissible at the

hearing of the proceeding. Discussions in an expert

conference and documents prepared for the purposes of

a conference are confidential and shall not be disclosed

to the judge or prothonotary presiding at the hearing of

the proceeding unless the parties consent.



NOTES See the attached sample of Form 52.2 Rule 52.2—

Certificate Concerning Code of Conduct for Expert

Witnesses.

SCHEDULE

(Rule 52.2)

CODE OF CONDUCT FOR EXPERT WITNESSES

GENERAL DUTY TO THE COURT

1. An expert witness named to provide a report for use as

evidence, or to testify in a proceeding, has an

overriding duty to assist the Court impartially on

matters relevant to his or her area of expertise.

2. This duty overrides any duty to a party to the

proceeding, including the person retaining the expert

witness. An expert is to be independent and objective.

An expert is not an advocate for a party.

Experts’ Reports

3. An expert’s report submitted as an affidavit or

statement referred to in rule 52.2 of the Federal Courts

Rules shall include:

(a) a statement of the issues addressed in the report

(b) a description of the qualifications of the expert on

the issues addressed in the report

(c) the expert’s current curriculum vitae attached to the

report as a schedule

(d) the facts and assumptions on which the opinions in

the report are based; in that regard, a letter of

instructions, if any, may be attached to the report as

a schedule

(e) a summary of the opinions expressed

(f) in the case of a report that is provided in response to

another expert’s report, an indication of the points

of agreement and of disagreement with the other

expert’s opinions



NOTES (g) the reasons for each opinion expressed

(h) any literature or other materials specifically relied

on in support of the opinions

(i) a summary of the methodology used, including any

examinations, tests or other investigations on which

the expert has relied, including details of the

qualifications of the person who carried them out,

and whether a representative of any other party was

present

(j) any caveats or qualifications necessary to render the

report complete and accurate, including those

relating to any insufficiency of data or research and

an indication of any matters that fall outside the

expert’s field of expertise

(k) particulars of any aspect of the expert’s relationship

with a party to the proceeding or the subject matter

of his or her proposed evidence that might affect his

or her duty to the Court

4. An expert witness must report without delay to persons

in receipt of the report any material changes affecting

the expert’s qualifications or the opinions expressed or

the data contained in the report.

Expert Conferences

5. An expert witness who is ordered by the Court to confer

with another expert witness must:

(a) Exercise independent, impartial and objective

judgment on the issues addressed.

(b) Endeavour to clarify with the other expert witness

the points on which they agree and the points on

which their views differ.

Ontario Rules

Amendments to the Rules of Civil Procedure, effective

January 1, 2010, take on a very similar look to the new



NOTES Federal Rules as well as those that have surfaced in other

provinces across Canada.

The general theme of all of the country’s rules is that expert

witnesses are to act as independent experts and not

advocates for their client.

Rule 4.1—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,

(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.

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.

Taking Evidence Before Trial

36.01

(4) Before moving for leave to examine an expert witness

under subrule (2), the moving party shall serve on

every other party the report of the expert witness

referred to in subrule 53.03 (1) (calling expert witness

at trial) unless the court orders otherwise.

53.03 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



NOTES other party to the action a report, signed by the expert,

containing the information listed in subrule (2.1).

(2) 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)

(2.1) A report provided for the purposes of subrule (1) or

(2) shall contain the following information:

(a) The expert’s name, address and area of

expertise.

(b) The expert’s qualifications and employment and

educational experiences in his or her area of

expertise.

(c) The instructions provided to the expert in

relation to the proceeding.

(d) The nature of the opinion being sought and each

issue in the proceeding to which the opinion

relates.

(e) 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.

(f) 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.

(g) An acknowledgement of expert’s duty (Form

53) signed by the expert.

A sample of form 53 is attached to the end of these notes.



NOTES Quebec Rules

402.1—Except with leave of the court, no expert witness

may be heard unless his written report has been

communicated and filed in the record in accordance with

the provisions of Sections I and II of Chapter I.1 of this

Title. However, in the case of a motion other than a motion

to institute proceedings, a copy of the report must be served

on the parties at least 10 days before the date of the

hearing, unless the court decides otherwise.

The filing in the record of the whole or abstracts only of the

out of court testimony of an expert witness may stand in

lieu of his written report.

413.1—Where the parties have each communicated an

expert’s report and the reports are contradictory, the court

may, at any stage of the proceeding, even on its own

initiative, order the experts concerned to meet, in the

presence of the parties and attorneys who wish to attend,

and reconcile their opinions, identify the points which

divide them and report to the court and to the parties within

the time determined by the court.

414—After issue joined, the court, if it is of opinion that

the ends of justice will be better attained, may, even of its

own motion:

1. order that any fact relating to the case be investigated,

verified and determined by an expert whom it

designates;

2. refer to an accountant or practitioner the establishing or

auditing of accounts or figures in any matter where

accounts have to be rendered or settled and which

require calculations to be made, or involve a partition of

property.



NOTES 415—The court may, exceptionally, if in its opinion the

difficulty and importance of the case so require, appoint

three experts, or three accountants or practitioners, rather

than only one.

416—The judgment appointing an expert must state clearly

the duties of the person appointed and the time within

which he must file his report.

The clerk must, without delay, send to the person appointed

a copy of the judgment.

417—The grounds for recusing an expert are the same as

those provided for judges in article 234. Recusation is

urged by motion, and if it is held to be well founded the

court replaces the person recused.

418—The expert, before entering upon his functions, must

be sworn in writing before the judge or clerk to perform his

duties faithfully and impartially. If he refuses or neglects to

be sworn or to carry out his duties, any of the parties may

request the court to replace him.

419—The expert must give the parties at least five days’

notice of the time and place at which he will begin to carry

out his instructions.

420—The expert may examine any thing or visit any place

which he considers useful for the carrying out of his duties.

He may summon witnesses by means of subpoenas issued

by the clerk, administer the oath to them and hear their

depositions which are taken down in writing and signed by

the witness and countersigned by the expert, unless they

have been taken down by a stenographer duly sworn.



NOTES Mention must be made in the minutes of the relationship of

the witnesses with the parties, and of the interest of each in

the suit.

421—The expert must, before the expiry of the time fixed

by the court, file in the office of the court a signed report of

his proceedings and conclusions, to which is annexed

evidence of his having been sworn and the documents and

testimony which he has taken.

The report must be sufficiently reasoned and detailed to

enable the court to appreciate the facts.

If there are several experts and they are unanimous, they

may make one and the same report.

424—An expert who refuses or unduly delays to file his

report is guilty of contempt of court.

425—Auditors and practitioners have the powers and are

subject to the rules prescribed concerning experts, so far as

applicable; they are bound to follow the directions of the

court.

Nova Scotia Rules

31.06—The court may order that the number of expert

witnesses, including medical witnesses, to be called at a

trial shall be limited.

31.08 (1)—Unless a copy of a report containing the full

opinion of an expert, including the essential facts on which

the opinion is based, a summary of his qualifications and a

summary of the grounds for each opinion expressed, has

been



NOTES (a) served on each opposite party and filed with the court

by the party filing the notice of trial at the time the

notice is filed, and

(b) served on each opposite party by the person receiving

the notice within thirty (30) days of the filing of the

notice of trial, the evidence of the expert shall not be

admissible on the trial without leave of the court.

British Columbia Rules

In British Columbia, the new Supreme Court Civil Rules

came into effect on July 1, 2010. This was the culmination

of a long process which began with the BC Justice Review

Task Force in March 2002.

Rule 11-2—Duty of Expert Witnesses:

(1) In giving an opinion to the court, an expert appointed

under this Part by one or more parties or by the court

has a duty to assist the court and is not to be an

advocate for any party.

(2) If an expert is appointed under this Part by one or more

parties or by the court, the expert must, in any report he

or she prepares under this Part, certify that he or she

(a) is aware of the duty referred to in subrule (1),

(b) has made the report in conformity with that duty,

and

(c) will, if called on to give oral or written testimony,

give that testimony in conformity with that duty.

Requirements for report:

(1) An expert’s report that is to be tendered as evidence at

the trial must be signed by the expert, must include the

certification required under Rule 11-2 (2) and must set

out the following:

(a) the expert’s name, address and area of expertise;



NOTES (b) the expert’s qualifications and employment and

educational experience in his or her area of

expertise;

(c) the instructions provided to the expert in relation to

the proceeding;

(d) the nature of the opinion being sought and the

issues in the proceeding to which the opinion

relates;

(e) the expert’s opinion respecting those issues;

(f) 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.

Production of documents:

(8) Unless the court otherwise orders, if a report of a

party’s own expert appointed under Rule 11-3 (9) or

11-4 is served under this rule, the party who served the

report must,

(a) promptly after being asked to do so by a party of

record, serve on the requesting party whichever one

or more of the following has been requested:

i. any written statement or statements of facts on

which the expert’s opinion is based;

ii. a record of any independent observations made

by the expert in relation to the report;

iii. any data compiled by the expert in relation to

the report;

iv. the results of any test conducted by or for the

expert, or of any inspection conducted by the

expert, if the expert has relied on that test or

inspection in forming his or her opinion, and



NOTES (b) if asked to do so by a party of record, make

available to the requesting party for review and

copying the contents of the expert’s file relating to

the preparation of the opinion set out in the expert’s

report,

i. if the request is made within 14 days before the

scheduled trial date, promptly after receipt of

that request, or

ii. in any other case, at least 14 days before the

scheduled trial date.

Pending judicial clarification, it would be prudent for

practitioners to consider dividing their files into three

categories: one containing only the documents described

above; one that complies with the professional

requirements of the expert’s affiliations (e.g., CBVs, CAs,

etc.); and one containing material over which counsel may

wish to claim privilege.

Rule 11-7—Expert Opinion Evidence at Trial

Reports must be prepared and served in accordance with

rules:

(1) Unless the court otherwise orders, opinion evidence of

an expert, other than an expert appointed by the court

under Rule 11-5, must not be tendered at trial unless

(a) that evidence is included in a report of that expert

that has been prepared and served in accordance

with Rule 11-6, and

(b) any supplementary reports required under Rule 11-5

(11) or 11-6 (5) or (6) have been prepared and

served in accordance with Rule 11-6 (5) to (7).

Alberta Rules

In Alberta, the new Alberta Rules of Court came into force

on November 1, 2010. The Rules are the result of a multi-

year project led by the Alberta Law Reform Institute.



NOTES Some of the sections of the Alberta Rules that would be of

particular interest to the forensic expert are:

5.37 Questioning experts before trial:

(1) The parties may agree, or in exceptional circumstances

the Court may direct, that an expert be questioned by

any party adverse in interest to the party proposing to

call the expert witness at trial.

(2) The questioning must be limited to the expert’s report.

(3) The Court may impose conditions about questioning

with respect to all or any of the following:

(a) Limiting the length of questioning;

(b) Specifying the place where the questioning is to

take place;

(c) Directing payment of costs incurred;

(d) Any other matter concerning the questioning.

(4) Evidence of an expert under this Division is to be

treated as if it were evidence of an employee of the

party who intends to rely on the expert’s report.

Continuing obligation on expert:

5.38 If, after an expert’s report has been provided by one

party to another, the expert changes his or her opinion on a

matter in the report, the change of opinion must be

(1) disclosed by the expert in writing, and

(2) immediately served on each of the other parties.

Use of expert’s report at trial without expert:

5.39(1) A party serving an expert’s report may, at the same

time, also serve notice of intention to have the report

entered as evidence without calling the expert as a

witness.

(2) If a party serves a notice of intention under subrule (1),

no objection may be made at trial to entering the

expert’s report as evidence unless, within 2 months



NOTES after service of the notice under subrule (1), any other

party serves a statement on the party serving the notice

of intention

(a) setting out all or parts of the report that that other

party objects to being entered as evidence under this

rule, and giving reasons for the objection, or

(b) serving on the party a request that the expert attend

the trial for cross-examination.

(3) Agreeing to have the expert’s report entered as

evidence without calling the expert as a witness, either

explicitly or by allowing subrule (2) to operate without

objection, is not an admission of the truth or correctness

of the expert’s report.

Expert’s attendance at trial:

5.40(1) A party who agrees to have all of an expert’s report

entered in evidence at trial, either explicitly or by

allowing rule 5.39(2) to operate without objection, may,

at the same time as responding to the notice of

intention, serve a request that the expert be in

attendance at trial for cross-examination.

(2) The expert whose entire report is to be entered at trial

must not give oral evidence at trial unless

(a) a request that the expert attend for cross-

examination has been served, or

(b) the Court permits.

(3) The party who requests an expert’s attendance for

cross-examination must pay the costs of the expert’s

attendance, determined under Schedule B, unless the

Court is satisfied that the cross-examination is of

sufficient assistance to warrant a different order about

who is to pay those costs.

(4) If the party proposing to enter the expert’s report

receives a request that the expert attend for cross-



NOTES examination, the party proposing to enter the report

may question the expert at trial.

U.S. Federal Rules of Evidence

Beginning with new amendments to Rule 26 that took

effect on Dec. 1, 2010, counsel’s communications with a

testifying expert are once again generally protected from

discovery.

In summary, the new Rule 26 amendments:

Eliminate the requirement that a testifying expert’s

report disclose “information considered” in favor of a

more narrow “facts or data considered” standard (Rule

26(a)(2)(B)(iii)).

Provide that experts’ draft reports or disclosures

constitute “trial-preparation materials” generally

protected from discovery (Rule 26(b)(4)(B)).

Provide that, subject to three exceptions,

communications between counsel and a retained

testifying expert also constitute “trial-preparation

materials” generally protected from discovery (Rule

26(b)(4)(C)).

Distinguish between retained testifying experts and

non-retained testifying experts, providing that a report

is not required for a non-retained testifying expert but,

instead, a disclosure providing “a summary of the facts

and opinions to which the witness is expected to

testify” (Rule 26(a)(2)(C)).

The three exceptions are communications that:

1. Relate to compensation for the expert’s study or

testimony.

2. Identify facts or data that the party’s attorney provided

and that the expert considered in forming the opinions

to be expressed.



NOTES 3. Identify assumptions that the party’s attorney provided

and that the expert relied upon in forming the opinions

to be expressed.

Rule 702: Testimony by Experts

If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education may

testify thereto in the form of an opinion or otherwise, if:

1. The testimony is based upon sufficient facts or data.

2. The testimony is the product of reliable principles and

methods.

3. The witness has applied the principles and methods

reliably to the facts of the case.

Whether the situation is a proper one for the use of expert

testimony is to be determined on the basis of assisting the

trier.

“There is no more certain test for determining when experts

may be used than the common sense inquiry whether the

untrained layman would be qualified to determine

intelligently and to the best possible degree the particular

issue without enlightenment from those having a

specialized understanding of the subject involved in the

dispute.”

—Ladd, Expert Testimony, Vand.L.Rev, 414, 418 (1952)

“When opinions are excluded, it is because they are

unhelpful and therefore superfluous and a waste of time.”

—Wigmore § 1918

The Daubert Rules and Kumho Clarification

Two Supreme Court cases set the primary legal precedence

for the admissibility of expert testimony in federal cases:



NOTES 1. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579, 113 S.Ct. 2786 (1993), and

2. Kumho Tire Co. vs. Carmichael, 526 U.S. 137, 119

S.Ct. 1167, 1179 (1999).

These cases expanded the role of the trial judge as a

gatekeeper for expert testimony.

In Daubert, the court charged trial judges with the

responsibility of acting as gatekeepers to exclude unreliable

expert testimony, and the court in Kumho clarified that this

gatekeeper function applies to all expert testimony, not just

testimony based in science.

The specific factors explained by the Daubert Court are:

1. whether the expert’s technique or theory can be or has

been tested—that is, whether the expert’s theory can

be challenged in some objective sense, or whether it is

instead simply a subjective, conclusory approach that

cannot reasonably be assessed for reliability;

2. whether the technique or theory has been subject to

peer review and publication;

3. the known or potential rate of error of the technique

or theory when applied;

4. the existence and maintenance of standards and

controls; and

5. whether the technique or theory has been generally

accepted in the scientific community.

The Court in Kumho held that these factors might also be

applicable in assessing the reliability of non-scientific

expert testimony, depending on “the particular

circumstances of the particular case at issue.”



NOTES Courts both before and after Daubert have found other

factors relevant in determining whether expert testimony is

sufficiently reliable to be considered by the trier of fact.

These factors include:

1. Whether experts are “proposing to testify about matters

growing naturally and directly out of research they have

conducted independent of the litigation, or whether they

have developed their opinions expressly for purposes of

testifying.” Daubert v. Merrell Dow Pharmaceuticals,

Inc., 43 F.3d 1311, 1317 (9th Cir. 1995)

2. Whether the expert has unjustifiably extrapolated from

an accepted premise to an unfounded conclusion. See

General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997)

(noting that in some cases a trial court “may conclude

that there is simply too great an analytical gap between

the data and the opinion proffered”).

3. Whether the expert has adequately accounted for

obvious alternative explanations. See Claar v.

Burlington, N.R.R., 29 F.3d 499 (9th Cir. 1994)

(testimony excluded where the expert failed to consider

other obvious causes for the plaintiff’s condition).

Compare Ambrosini v. Labarraque, 101 F.3d 129

(D.C.Cir. 1996) (the possibility of some uneliminated

causes presents a question of weight, so long as the

most obvious causes have been considered and

reasonably ruled out by the expert).

4. Whether the expert “is being as careful as he would be

in his regular professional work outside his paid

litigation consulting.” Sheehan v. Daily Racing Form,

Inc., 104 F.3d 940, 942 (7th Cir. 1997). See Kumho

Tire Co. v. Carmichael, 119 S.Ct. 1167, 1176 (1999)

(Daubert requires the trial court to assure itself that the

expert “employs in the courtroom the same level of

intellectual rigor that characterizes the practice of an

expert in the relevant field”).



NOTES 5. Whether the field of expertise claimed by the expert is

known to reach reliable results for the type of opinion

the expert would give. See Kumho Tire Co. v.

Carmichael, 119 S.Ct. 1167, 1175 (1999) (Daubert’s

general acceptance factor does not “help show that an

expert’s testimony is reliable where the discipline itself

lacks reliability, as, for example, do theories grounded

in any so-called generally accepted principles of

astrology or necromancy.”); Moore v. Ashland

Chemical, Inc., 151 F.3d 269 (5th Cir. 1998) (en banc)

(clinical doctor was properly precluded from testifying

to the toxicological cause of the plaintiff’s respiratory

problem, where the opinion was not sufficiently

grounded in scientific methodology); Sterling v.

Velsicol Chem. Corp., 855 F.2d 1188 (6th Cir. 1988)

(rejecting testimony based on “clinical ecology” as

unfounded and unreliable).

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