Legal Blog

Pretrial & Expert

Sosnov v. J&H Freiberg Ont SCJ (Div Ct)

Over the objections of both parties, the pretrial judge, without reasons, appointed an expert to assist the court in understanding questions of liability. It was a very wide order. The Divisional Court noted that a judge has discretion to appoint an expert, at any time including during a pretrial, but could not appoint an expert to determine the matters in issue as well as issues the parties had not even raised. A court appointed expert is to be appointed to assist the court to understand evidence, not to investigate, advance possible theories, and state, as conclusions of fact, opinions based on matters not advanced in evidence. Doing so usurps the role of the trier of fact and the parties’ right to present the case as they see fit.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.