The Expert WitnessHis or Her Role and Responsibilities at Assessment and Valuation Hearings

Jack A. Walker, Q.C.

Osgoode-IPTI Expert Evidence Certificate

Osgoode Hall P.D., Toronto

October 31, 2011

1. Culture of the Assessment Profession

a) Appellant

• Historically, the consultant controlled the process

• Appellant’s consultant instituted the appeal process

• Appellant’s consultant negotiated with the assessor

• Appellant’s consultant appeared as advocate

• Appellant’s consultant appeared as expert witness

2007 – Law Society introduced paralegal provisions

Intention:

• Control the consultants providing legal services by making

them subject to Rules of Professional conduct

• Prevent paralegals from appearing as an expert witness

Practical Effect:

• Large number of consultants became paralegals

• Has there been a change in the culture? – realistically No

b) Assessing Authority

• Employees place the assessment on the roll,

negotiate with the appellant, appear as advocate

and expert witness

• Not subject to the provisions of the Law Society

Act

• Still negotiate and appear as expert witness

c) Assessment Review Board

• Until 1990’s never even qualified witnesses as expert witnesses

• Thereafter the ARB qualified the individual as an expert

witness without limiting area of expertise

• Next step the ARB holds a “voir dire” to determine

whether witness was qualified and defined the area of expertise

• Now the ARB is questioning the witness as to bias,

independence, objectivity and commencing to implement

the Rules of Civil Procedure to the qualification process

• The question of necessity and relevance of the evidence is tied into the area of expertise of the ARB

d) Why do we Require a Expert Witness at the ARB

• Jurisprudence establishes expertise of ARB as “expert in valuation of real estates and property taxes”

• Does the expert panel require an expert witness to

inform the panel of the conclusion that it is mandated to

reach

• Issue: Question of whether Board acting in an

Administrative or Judicial capacity.

If latter then Board requires evidence upon which to

base its Decision. Marathon Realty v. RAC #7 [1979] O.J. No. 1090

2. Rules of Practice of the Courts and Tribunals and Jurisprudence

• Now we are dealing with the Cluster Board – 5 land tribunals each has its own

set of Rules but a universal set of rules will probably be forthcoming

• Ontario Assessment Legislation (“OAL” p. 733)

• ARB Rules of Practice and Procedure, s.4, (OAL p.200)

• Rules of Civil Procedure provide (R.4.1.01) (OAL p.733):

1. Expert evidence to be “fair, objective and non-partisan”

2. Expert evidence to be “related to areas within expert’s area of expertise”

3. Expert to provide additional assistance as the court may reasonably

require to determine a matter in issue

3) Rules of Practice (53.03) Provide for contents of experts report, (OAL p.745)

1. Qualifications and area of expertise

2. Instructions to the expert

3. Nature of the opinion sought

4. Issue to which opinion relates

5. Opinion re: each issue

6. Includes factual basis for the opinion, research conducted

7. List of every document relied upon

4) Expert must acknowledge his or her duty in writing

• Rules of Practice, Form 53, (OAL p.745)

• How do new rules impact on the culture.

Jurisprudence• ARB in accordance with its Rules of Procedure Rule 4 (OAL p. 200)

moving towards implementing Rules of Civil Procedure

• Recent Cases

Clublink v. MPAC and the City of Oakville

• Experts have acknowledged their obligation and attached certificate

• Board member has referred to Rules of Practice in rejecting evidence of an

expert witness

• Simcoe Residence Corp. v. MPAC and the City of Toronto [2010] O.A.R.B.

No. 706

• Questions are being asked about standards (U.S.A.P, C.U.S.P.A.P.) and

requirements (Rule 53.03)

BOTTOM LINE

• Acknowledge and understand that the “expert witness” is

NOT a MEMBER OF THE TEAM

• Significance:

- Cannot participate in team “strategy” meetings

- Must author his or her report and disclose in the

report other contributors and their role

- Question as to whether report can be edited and

vetted by advisers

Role is solely to assist tribunal not to put forward the

position of the client

Is this possible?

In context of the culture of the

assessment profession or does the

practice have to be adjusted to

recognize that culture

What about standards in reporting and codes of ethics?

• Both eminate from

Professional Organizations

Or

Professions

i.e. - LSUC

- AIC

- USPAP

• Raises two questions

1. Is there an assessment profession?

2. If not, are there applicable standards and ethics to those involved?

•

• Member of a vocation founded upon

specialized educational training

• Characteristics include high quality work,

high standard of professional ethics,

constant upgrading

Appraiser – one who is expected to perform

valuation services competently and in a

manner that is independent, impartial and

objective

The purpose of U.S.P.A.P is to promote and

maintain a high level of public trust in

appraisal practice by establishing

requirements for appraisers U.S.P.A.P.

reflects the current standards of the

appraisal profession.

• Discipline regulation

• Reliance by members of society

• Right to earn substantial rewards

• Privilege = Responsibility

Standards

Code of ethics = Rules of coduct

Self Imposed and 3rd Party Imposition

Morality Code of Ethics

• Basically revolve around responsibilities to the

profession, the public, and the society in general

• Six C’s

1. Competency

2. Confidentiality

3. Conflicts of Interest

4. Contingency

5. Conduct

6. Continued Education

Enhancing Creditability

Benjamin Franklin: “Expensive china, glass and reputation crack easily but

very seldom can be repaired”

• Reputation and credibility must be protected

Why: Once profession and judiciary lose respect then have serious issues

restoring it

Why Constantly ask “were you the same individual that gave evidence in

_____________ case.