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In the recent Superior Court decision of Les Constructions du Saint-Laurent Ltée vs. Aluminerie Alouette Inc and al., (unreported, Superior Court, Montréal, 500-05-000033-918, Februrary 21, 2001), the Honourable Justice Baker made interesting comments on the role of an expert witness and how opinion should be assessed. This judgement illustrates the important balance between acknowledging the issues raised by the facts of a case and ensuring the satisfaction of a client when acting as an expert witness.
The case involved an action by a contractor, Les Constructions du Saint-Laurent Ltée (CSL), against Aluminerie Alouette Inc. (AAI) to obtain compensation for work completed pursuant to a contract. The cause of action was alleged to arise from a violation by AAI of its duty to inform, which would have caused CSL serious damage during the course of work. CSL was also claiming for major changes, which allegedly disrupted the orderly execution of the work, and the impacts resulting therefrom.
The main question raised by the case concerned the obligation to inform in the context of a geo-technical study included in the bidding documents received by CSL. CSL asserted that the condition of the site upon the commencement of the work was not what they had been led to expect by the report.
An expert was called by each side to testify as to the content of the geo-technical report and what could be correctly inferred from it. Commenting on the entirely different opinions of the experts, the Honourable Justice Baker made the following comments regarding AAI's expert:
"The sum total of [AAI's expert's testimony] leads me to observe that he was an advocate for the defense. He brought no balance to this vast array of subjects, both in his formal Report, and testimony at trial. He seemed to have forgotten, on the issue of what CSL might have gleaned from the Terratech Report [the geo-technical report], that CSL had but a few weeks to consider an enormous array of information such that an appropriate bid might be presented in the short time available, as opposed to his own analysis of the Terratech Report and its underlying data, which analysis was done years after the fact and at a cost to the Defendant of several hundred thousand dollars." (p. 56 of the judgement)
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After expressing his view that the Defendant's expert could not have overlooked the difference between his own detailed analysis and the one that the Plaintiff was able to complete as a "hurried bidder", the Honourable Justice Baker added the following comments:
"Quite apart from the above, the court observes that [AAI's expert] promoted theories of the site that while interesting, lead me to find that he stretched virtually every subject he dealt with to a point of incredulity." (page 57 of the judgement)
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After several other comments on the Defendant's expert's work, the Honourable Justice Baker rejects his testimony and summarized his reasons as follows:
"When it takes several years and several hundred thousand dollars to produce a report that the writer asserts is what the bidders should have themselves seen, is nothing more than a conclusion reached with hindsight, with the inappropriate premise, although never overtly stated, that both he and CSL were playing from the same level playing field; assuredly they were not." (page 68 of the judgement)
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Mélanie Raymond, BCL, is an associate lawyer at Nicholl Paskell-Mede in Montréal.
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