©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.
EXPERT WITNESS RULES, RULES AND MORE RULES
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
EXPERT WITNESS RULES, RULES AND MORE RULES
2012 ACFE Canadian Fraud Conference ©2012 2
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.
EXPERT WITNESS RULES, RULES AND MORE RULES
2012 ACFE Canadian Fraud Conference ©2012 3
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
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2012 ACFE Canadian Fraud Conference ©2012 4
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
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2012 ACFE Canadian Fraud Conference ©2012 5
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;
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2012 ACFE Canadian Fraud Conference ©2012 6
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
EXPERT WITNESS RULES, RULES AND MORE RULES
2012 ACFE Canadian Fraud Conference ©2012 7
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
EXPERT WITNESS RULES, RULES AND MORE RULES
2012 ACFE Canadian Fraud Conference ©2012 8
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
EXPERT WITNESS RULES, RULES AND MORE RULES
2012 ACFE Canadian Fraud Conference ©2012 9
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
EXPERT WITNESS RULES, RULES AND MORE RULES
2012 ACFE Canadian Fraud Conference ©2012 10
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.
EXPERT WITNESS RULES, RULES AND MORE RULES
2012 ACFE Canadian Fraud Conference ©2012 11
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.
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2012 ACFE Canadian Fraud Conference ©2012 12
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.
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2012 ACFE Canadian Fraud Conference ©2012 13
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
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2012 ACFE Canadian Fraud Conference ©2012 14
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
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2012 ACFE Canadian Fraud Conference ©2012 15
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
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2012 ACFE Canadian Fraud Conference ©2012 16
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.
EXPERT WITNESS RULES, RULES AND MORE RULES
2012 ACFE Canadian Fraud Conference ©2012 17
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.
EXPERT WITNESS RULES, RULES AND MORE RULES
2012 ACFE Canadian Fraud Conference ©2012 18
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.
EXPERT WITNESS RULES, RULES AND MORE RULES
2012 ACFE Canadian Fraud Conference ©2012 19
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
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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;
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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
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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.
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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
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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-
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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.
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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:
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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.”
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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”).
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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).