Words and Phrases - "participant expert"

One of the original art appraisers (Ms. Yeomans) in an art donation program (the “Artistic Program”) produced a Court Report in 2016, which then was excluded, in a previously-heard motion, on the basis inter alia that she lacked the necessary impartiality and objectivity to testify to the content of the Court Report as an independent and impartial expert witness. Before proceeding further, counsel for the taxpayers brought this motion to determine whether she could testify as a “participant expert” to her original appraisals for the truth of their contents (the “Appraisal Reports”), on the basis that she was a “participant expert” based on Westerhof v Gee Estate, 2015 ONCA 206.

In concluding (at para. 117) that “Ms. Yeomans is allowed to testify to the contents of the Appraisal Reports, limited to the opinions that she had formed while participating as the appraisers for the Artistic Program,” Rossiter CJ stated (at paras 65, 73 and 97):

I find that Westerhof, with certain clarifications …, should apply with equal force to proceedings arising in the Tax Court. More specifically, the expert evidence rules in the Tax Court Rules, while broadly worded, only capture independent or litigation experts who are named or retained by a party to the litigation to provide independent and impartial expert opinions. Participant experts and other types of witnesses with expertise do not have to comply with these rules provided that they meet the test.

The real legal test, it seems to me, should be that a witness with expertise who has not been engaged by or on behalf of a party to the litigation to form the original opinion for the purpose of litigation may give the said opinion evidence without complying with the expert evidence rules – e.g. rule 53.03 in the Ontario Rules, rule 145 in the Tax Court Rules – provided that the “core” of the Westerhof test is met, that is, “the opinion to be given is based on the witness's observation of or participation in the events at issue; and the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events”: Westerhof, at para. 60.

… Artistic, not the Appellants, was the entity that engaged Ms. Yeomans to provide the appraisal opinions. Artistic was in direct contact with Ms. Yeomans. She was retained by Artistic at an hourly rate. She inspected the art at the offices of Artistic. … Further, given my above interpretation of the phrase “engaged by or on behalf of a party”, even if Ms. Yeomans’ appraisals were procured by or on behalf of the Appellants, that would not necessarily disqualify her original appraisals, so long that they were not formed for the purpose of litigation. There was no evidence that was the case.