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Divisional Court Allows Appeal on Court-Appointed Expert

In Sosnov v. J&H Freiberg, 2021 ONSC 1081, the Divisional Court overturned an order regarding a court-appointed expert.

The action involves an occupiers’ liability claim. The plaintiff alleges that she hit her head on the underside of an interior staircase in a building.

At a pre-trial conference, the pre-trial judge felt it was necessary for the court to appoint an expert. The defendants opposed the appointment. The plaintiffs took no position but objected to having to pay any associated costs.

The pre-trial judge made an order appointing an expert to assist the court in understanding the question of liability, including human factors issues. 

The expert was to be provided with all documents in the action and would be permitted to ask questions of the parties through their counsel and to speak directly with the parties’ own experts.

The expert was required to provide an opinion on whether the design of the building created a safety hazard. The costs of the expert were to be split equally between the plaintiffs and the defendants.

On appeal, the Divisional Court stated that it was incumbent on the pre-trial judge to provide reasons for the order, which she did not do.

Moreover, the Divisional Court held that pre-trial judge erred in appointing an expert to determine the matters in issue, as well as issues not raised by the parties.

The Divisional Court stated that the role of a court-appointed expert is to assist the court in understanding the evidence within their area of expertise. It is not to investigate, advance possible theories, and state, as conclusions of fact, opinions based on matters not advanced in evidence.

The order of the pre-trial judge was held to usurp the role of the trier of fact and the parties’ right to present the case as they see fit. As a result, the pre-trial judge’s order was set aside.