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The Expert Witness His 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

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Ontario Assessment Legislation (“OAL” p. 733)

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

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Rules of Civil Procedure provide (R.4.1.01) (OAL p.733): 1.

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

2. 3.

Expert evidence to be “related to areas within expert’s area of expertise” 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. 2. 3. 4. 5. 6. 7.

Qualifications and area of expertise Instructions to the expert Nature of the opinion sought Issue to which opinion relates Opinion re: each issue Includes factual basis for the opinion, research conducted 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

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Recent Cases  Clublink v. MPAC and the City of Oakville

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Experts have acknowledged their obligation and attached certificate

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

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Simcoe Residence Corp. v. MPAC and the City of Toronto [2010] O.A.R.B. No. 706

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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?


     

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• 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


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          Self Imposed and

Morality

3rd Party Imposition

Code of Ethics


       

• Basically revolve around responsibilities to the profession, the public, and the society in general • Six C’s 1. 2. 3. 4. 5. 6.

Competency Confidentiality Conflicts of Interest Contingency Conduct 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.



The Role of Expert Witness