WHAT DO I WANT TO BE WHEN I GROW UP!
Jack A. Walker, Q.C. Cushman & Wakefield Seminar January 5, 2012
EXPERT WITNESS OR ADVOCATE EXPERT WITNESS AND ADVOCATE
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A) Culture of the Assessment Profession (I) Appellant â€˘ Historically, the consultant controlled the process (i) Instituted the appeal process (ii) Negotiated with the assessor (iii) Appeared as advocate (iv) Appeared as expert witness (v) Unless a member of a professional body is unfettered by standards and ethical considerations
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
II) 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 • Not discernible standards although there is a code of conduct
III) 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
B) 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
Adjudicative Tribunals Accountability Governance and Appointments Act, 2009 (OAL p.239)
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”
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
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 â€˘ â€˘
Rules of Practice, Form 53, (OAL p.745) How do new rules impact on the culture.
C) 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 (Tab 3D)
Experts have acknowledged their obligation and attach certificates to their reports
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  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)
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BOTTOM LINE Because of the Changes in Rules, etc. • Have to 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 Well, rules and practice ainâ€™t going back.
D) What about standards in reporting and codes of ethics? â€˘
Both emanate from Professional Organizations Or Professions i.e. - LSUC - AIC - USPAP
â€˘ Raises two questions 1. Is there an assessment profession? 2. If not, are there applicable standards and ethics to those involved?
â€˘ Member of a vocation founded upon specialized educational training â€˘ Characteristics include high quality work, high standard of professional ethics, constant upgrading
Appraiser â€“ 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.
Reliance by members of society
Right to earn substantial rewards
Privilege = Responsibility Standards Code of ethics = Rules of conduct
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3rd Party Imposition
Code of Ethics
Basically revolve around responsibilities to the profession, the public, and the society in general
Six Câ€™s 1. 2. 3. 4. 5. 6.
Competency Confidentiality Conflicts of Interest Contingency Conduct Continued Education
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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 as an expert witness you have serious issues restoring it Why Constantly ask “were you the same individual that gave evidence in _____________ case.”
Published on Mar 6, 2012
WHAT DO I WANT TO BE WHEN I GROW UP! Jack A. Walker, Q.C. Cushman & Wakefield Seminar January 5, 2012 EXPERT WITNESS AND ADVOCATE...