Business litigation is usually about numbers. The damages, value, financial analysis and appraisal you need to prove your case will often require the opinion of an independent financial expert such as a business valuator, forensic accountant, economist, appraiser or any of a panoply of other financial experts.
The expert's evidence could make or break the case. So it's important to engage counsel who knows the rules and an expert whose opinion will be accepted by the court.
In this interesting presentation, Igor Ellyn, QC, CS, FCIArb, a senior business litigation and arbitration counsel in Toronto, Canada, discusses the law affecting the use of financial experts and best practices to make their evidence most effective. Mr. Ellyn was assisted by Evelyn Perez Youssoufian, also, a business litigation and arbitration lawyer. Both are members of Ellyn Law LLP.
The following topics are discussed:
- What an expert witness should accomplish
- Determining when to use a financial expert
- What kind of financial expert do you need?
- Types of financial expert witnesses
- Factors to consider when hiring the expert
- New developments in presentation of expert evidence
- Conflicts of interest and disclosure
- Litigation privilege relating to expert reports
- Best practices for qualifying a financial expert
- Limits of admissibility of expert evidence
- Preparing the financial expert to testify at the hearing
- Preparing for cross-examination of the opposing expert
- The Court’s power to appoint an expert
- Counsel’s role in the content of the expert’s report
This presentation was prepared for a legal conference which took place in Toronto on May 30, 2013. The contents are not legal advice. Please contact the author if you have any questions.
Single Asset Real Estate Cases (Series: Ethical Issues in Real Estate-Based B...Financial Poise
Anyone involved in the field of creditors rights on a matter involving an LLC that exists solely to hold the principal asset has surely seen the play where, the night before property is scheduled to be sold at a foreclosure auction, the debtor files bankruptcy. For those not familiar with the process, doing so invokes the “Automatic Stay”, which prohibits the secured lender from foreclosing on the property. The debtor then attempts to make their case to the court for reorganization. But is failing to pay your mortgage really something bankruptcy was meant to solve? If the bank was going to agree to a loan modification, wouldn’t the parities have worked something out by the time the sheriff sale was set? The bankruptcy code recognizes this and therefore has a section devoted to dealing with this specific kind of bankruptcy—the Single Asset Real Estate (“SARE”) case. The goal of this episode is to look into ethical issues surrounding these matters.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/single-asset-real-estate-cases-2020/
Valuing Real Estate Assets (Series: Ethical Issues in Real Estate-Based Bankr...Financial Poise
As the expression goes, the value of real estate is in the eye of the beholder. Ultimately, the value is whatever the market is willing to pay. While income producing properties, particularly with credit worthy tenants, may be fairly routine to value based on current rate of return demands in the market, non-income producing properties may be more speculative. For example, even the most seasoned appraiser may struggle with finding comparative sales for a property. A landowner might see their property value go up exponentially “if only” the city council will allow for a zoning variance. Many an owner believes their property is in the “path of progress”, but when? Is it reasonable to value a property “as stabilized” if it is only forty percent leased? These are the types of questions we will consider.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/valuing-real-estate-assets-2020/
Single Asset Real Estate Cases (Series: Fairness Issues in Real Estate-Based ...Financial Poise
Anyone involved in the field of creditors rights on a matter involving an LLC that exists solely to hold the principal asset has surely seen the play where, the night before property is scheduled to be sold at a foreclosure auction, the debtor files bankruptcy. For those not familiar with the process, doing so invokes the “Automatic Stay”, which prohibits the secured lender from foreclosing on the property. The debtor then attempts to make their case to the court for reorganization.
But is failing to pay your mortgage really something bankruptcy was meant to solve? If the bank was going to agree to a loan modification, wouldn’t the parties have worked something out by the time the sheriff sale was set? The bankruptcy code recognizes this and therefore has a section devoted to dealing with this specific kind of bankruptcy—the Single Asset Real Estate (“SARE”) case. The goal of this episode is to look into ethical issues surrounding these matters.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/single-asset-real-estate-cases-2021/
Leveraging & Protecting Trade Secrets in the 21st Century (Series: Intellectu...Financial Poise
Trade secrets are a more important form of an intellectual property asset than ever.
Congress recently passed the Defend Trade Secrets Act of 2016, which created new federal laws that allow an owner of a trade secret to sue in federal court when its trade secrets have been misappropriated. And as technology continues to exponentially progress in the digital age of the 21st Century, the need for businesses to protect and limit access to valuable and confidential trade secret information continues to rise. The progress in technology and expansion of information also promotes means for monetizing and leveraging trade secrets.
How do you identify your trade secrets, protect them, and leverage them? These are the questions this cutting-edge webinar discusses and seeks to answer.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/leveraging-protecting-trade-secrets-in-the-21st-century-2021/
This paper is provided by NAPLIA.
The Investment Advisor’s Guide to Errors & Omissions Insurance will help you anticipate areas of underwriter concern as it relates to your specific investment practice, helping you internally evaluate your risk exposures and better define your activities and professional services.
Brennan, Niamh [2005] Accounting Expertise in Litigation and Dispute Resoluti...Prof Niamh M. Brennan
This paper looks at the role of experts from both a United Kingdom and North America perspective. The paper starts by pointing out the important role of expert evidence in assisting the tier of fact. The distinction between accountants as fact witnesses and as expert witnesses is identified. The expert’s primary obligation is to the court not the hiring party. Expert evidence is not a substitute for the exercise of the court’s own judgement. The qualities of expert evidence are discussed, as are the significance of the necessary qualities of such expert evidence. A lack of these qualities increases the likelihood that civil liability will be imposed on expert witnesses. The paper outlines the steps to be taken in engaging expert accountants.
Single Asset Real Estate Cases (Series: Ethical Issues in Real Estate-Based B...Financial Poise
Anyone involved in the field of creditors rights on a matter involving an LLC that exists solely to hold the principal asset has surely seen the play where, the night before property is scheduled to be sold at a foreclosure auction, the debtor files bankruptcy. For those not familiar with the process, doing so invokes the “Automatic Stay”, which prohibits the secured lender from foreclosing on the property. The debtor then attempts to make their case to the court for reorganization. But is failing to pay your mortgage really something bankruptcy was meant to solve? If the bank was going to agree to a loan modification, wouldn’t the parities have worked something out by the time the sheriff sale was set? The bankruptcy code recognizes this and therefore has a section devoted to dealing with this specific kind of bankruptcy—the Single Asset Real Estate (“SARE”) case. The goal of this episode is to look into ethical issues surrounding these matters.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/single-asset-real-estate-cases-2020/
Valuing Real Estate Assets (Series: Ethical Issues in Real Estate-Based Bankr...Financial Poise
As the expression goes, the value of real estate is in the eye of the beholder. Ultimately, the value is whatever the market is willing to pay. While income producing properties, particularly with credit worthy tenants, may be fairly routine to value based on current rate of return demands in the market, non-income producing properties may be more speculative. For example, even the most seasoned appraiser may struggle with finding comparative sales for a property. A landowner might see their property value go up exponentially “if only” the city council will allow for a zoning variance. Many an owner believes their property is in the “path of progress”, but when? Is it reasonable to value a property “as stabilized” if it is only forty percent leased? These are the types of questions we will consider.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/valuing-real-estate-assets-2020/
Single Asset Real Estate Cases (Series: Fairness Issues in Real Estate-Based ...Financial Poise
Anyone involved in the field of creditors rights on a matter involving an LLC that exists solely to hold the principal asset has surely seen the play where, the night before property is scheduled to be sold at a foreclosure auction, the debtor files bankruptcy. For those not familiar with the process, doing so invokes the “Automatic Stay”, which prohibits the secured lender from foreclosing on the property. The debtor then attempts to make their case to the court for reorganization.
But is failing to pay your mortgage really something bankruptcy was meant to solve? If the bank was going to agree to a loan modification, wouldn’t the parties have worked something out by the time the sheriff sale was set? The bankruptcy code recognizes this and therefore has a section devoted to dealing with this specific kind of bankruptcy—the Single Asset Real Estate (“SARE”) case. The goal of this episode is to look into ethical issues surrounding these matters.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/single-asset-real-estate-cases-2021/
Leveraging & Protecting Trade Secrets in the 21st Century (Series: Intellectu...Financial Poise
Trade secrets are a more important form of an intellectual property asset than ever.
Congress recently passed the Defend Trade Secrets Act of 2016, which created new federal laws that allow an owner of a trade secret to sue in federal court when its trade secrets have been misappropriated. And as technology continues to exponentially progress in the digital age of the 21st Century, the need for businesses to protect and limit access to valuable and confidential trade secret information continues to rise. The progress in technology and expansion of information also promotes means for monetizing and leveraging trade secrets.
How do you identify your trade secrets, protect them, and leverage them? These are the questions this cutting-edge webinar discusses and seeks to answer.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/leveraging-protecting-trade-secrets-in-the-21st-century-2021/
This paper is provided by NAPLIA.
The Investment Advisor’s Guide to Errors & Omissions Insurance will help you anticipate areas of underwriter concern as it relates to your specific investment practice, helping you internally evaluate your risk exposures and better define your activities and professional services.
Brennan, Niamh [2005] Accounting Expertise in Litigation and Dispute Resoluti...Prof Niamh M. Brennan
This paper looks at the role of experts from both a United Kingdom and North America perspective. The paper starts by pointing out the important role of expert evidence in assisting the tier of fact. The distinction between accountants as fact witnesses and as expert witnesses is identified. The expert’s primary obligation is to the court not the hiring party. Expert evidence is not a substitute for the exercise of the court’s own judgement. The qualities of expert evidence are discussed, as are the significance of the necessary qualities of such expert evidence. A lack of these qualities increases the likelihood that civil liability will be imposed on expert witnesses. The paper outlines the steps to be taken in engaging expert accountants.
Selecting the Right Valuation Expert (Series: Valuation)Financial Poise
You have a business interest, an asset, or a potential liability that you need to value. When do you need a valuation expert? While some negotiations or transactions may require an independent third party for appraisals, nearly all litigation on these topics will require an expert. How do you evaluate the credentials of an expert? What type of experience will you need your expert to possess? The process of selecting the appropriate expert starts with identifying the issues in dispute. This webinar explores the key factors you should consider in choosing your valuation expert.
To view the accompanying webinar, go to:https://www.financialpoise.com/financial-poise-webinars/selecting-the-right-valuation-expert-2021/
BUSINESS LAW REVIEW- 2022: Defending White Collar Crime-101Financial Poise
While white collar crimes don’t usually carry the same stigma or penalties as violent crime, the consequences of a conviction, or even an allegation can be devastating. Leaving prison time aside, the business may also face investigation, prosecution and possibly, the risk of reputational damage, financial loss and unwanted exposure.
As governmental enforcement of laws against those accused of white collar crime increases, companies need to understand how to avoid unknowingly acting in ways that may be unlawful, how to prevent and detect potential employee misconduct, and how to react if misconduct does occur.
Part of the webinar series: Business Law Review 2022
See more at https://www.financialpoise.com/webinars/
What is FINRA Arbitration? How do I file a case? If you are an investor and are thinking about filing a FINRA arbitration case, here are the useful information you need. Keep following for more info on investor rights matters every week!
The REALTOR Code of EthicsNew Member Orientation ProgramEvangeline Yia
All REALTORS® regardless of their specialty in the real estate business (appraisal, property management, etc.) are bound by the duties in the REALTORS®’ Code of Ethics.
You have a business interest, an asset, or a potential liability that you need to value. When do you need a valuation expert? While some negotiations or transactions may require an independent third party for appraisals, nearly all litigation on these topics will require an expert. How do you evaluate the credentials of an expert? What type of experience will you need your expert to possess? The process of selecting the appropriate expert starts with identifying the issues in dispute. This webinar explores the key factors you should consider in choosing your valuation expert.
Part of the webinar series: Valuation 2022
See more at https://www.financialpoise.com/webinars/
The Basics: Working With an Expert (Series: Valuation 2020) Financial Poise
This webinar is for the litigator who has not worked with an expert before or who otherwise would like some review. What’s the difference between a consulting expert and a testifying witness? How do you make sure your proposed expert will be accepted as an expert by the court? How do you protect your communications with your expert? What is an expert report and what can you do to make sure it is excellent? How do you plan your direct exam of your expert? How do you plan for redirect? This webinar addresses these topics.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/valuation-working-with-an-expert-2020/
As the legal funding market evolves, so too do the legal/ethical jurisprudence, strategic decisions inherent in utilizing funding, financial instruments used for funding, and nature of funder/funded relationship. In this webinar, a panel of experienced litigation funding professionals examine three live legal funding deals, and discuss how they impact considerations of (i) disclosure of litigation funding, (ii) fee-splitting and non-attorney ownership of law firms, and (iii) financial engineering of innovative funding deals.
Part of the webinar series: Commercial Litigation Funding 2021
See more at https://www.financialpoise.com/webinars/
Three Case Studies (Series: Commercial Litigation Funding 101) Financial Poise
As the legal funding market evolves, so too do the legal/ethical jurisprudence, strategic decisions inherent in utilizing funding, financial instruments used for funding, and nature of funder/funded relationship. In this webinar, a panel of experienced litigation funding professionals examine three live legal funding deals, and discuss how they impact considerations of (i) disclosure of litigation funding, (ii) fee-splitting and non-attorney ownership of law firms, and (iii) financial engineering of innovative funding deals.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/three-case-studies-2020/
LEGAL ETHICS – BEST PRACTICES 2022 - How to Avoid Malpractice & Disciplinary ...Financial Poise
This webinar presents basic practice pointers to avoid malpractice and disciplinary actions, and how to respond to claims of malpractice or unethical behavior if they arise. The panel also discusses the role that malpractice insurance plays in these situations and the ramifications of a malpractice judgment or disciplinary action. Model Rules addressed may include: those that govern the client-lawyer relationship (Rules 1.1 through 1.10; 1.13; and 1.16); those that that speak to transactions with persons other than clients (Rules 4.1 through 4.4); those that govern the responsibilities of managing and supervisory lawyers, subordinate lawyers, non-lawyer assistance, independence, unauthorized practice of law, and multijurisdictional practice (Rules 5.1 through 5.5); and those that govern communication, including advertising and solicitation of clients (Rules 7.1 through 7.5).
Part of the webinar series: LEGAL ETHICS – BEST PRACTICES 2022
See more at https://www.financialpoise.com/webinars/
Selecting the Right Valuation Expert (Series: Valuation)Financial Poise
You have a business interest, an asset, or a potential liability that you need to value. When do you need a valuation expert? While some negotiations or transactions may require an independent third party for appraisals, nearly all litigation on these topics will require an expert. How do you evaluate the credentials of an expert? What type of experience will you need your expert to possess? The process of selecting the appropriate expert starts with identifying the issues in dispute. This webinar explores the key factors you should consider in choosing your valuation expert.
To view the accompanying webinar, go to:https://www.financialpoise.com/financial-poise-webinars/selecting-the-right-valuation-expert-2021/
BUSINESS LAW REVIEW- 2022: Defending White Collar Crime-101Financial Poise
While white collar crimes don’t usually carry the same stigma or penalties as violent crime, the consequences of a conviction, or even an allegation can be devastating. Leaving prison time aside, the business may also face investigation, prosecution and possibly, the risk of reputational damage, financial loss and unwanted exposure.
As governmental enforcement of laws against those accused of white collar crime increases, companies need to understand how to avoid unknowingly acting in ways that may be unlawful, how to prevent and detect potential employee misconduct, and how to react if misconduct does occur.
Part of the webinar series: Business Law Review 2022
See more at https://www.financialpoise.com/webinars/
What is FINRA Arbitration? How do I file a case? If you are an investor and are thinking about filing a FINRA arbitration case, here are the useful information you need. Keep following for more info on investor rights matters every week!
The REALTOR Code of EthicsNew Member Orientation ProgramEvangeline Yia
All REALTORS® regardless of their specialty in the real estate business (appraisal, property management, etc.) are bound by the duties in the REALTORS®’ Code of Ethics.
You have a business interest, an asset, or a potential liability that you need to value. When do you need a valuation expert? While some negotiations or transactions may require an independent third party for appraisals, nearly all litigation on these topics will require an expert. How do you evaluate the credentials of an expert? What type of experience will you need your expert to possess? The process of selecting the appropriate expert starts with identifying the issues in dispute. This webinar explores the key factors you should consider in choosing your valuation expert.
Part of the webinar series: Valuation 2022
See more at https://www.financialpoise.com/webinars/
The Basics: Working With an Expert (Series: Valuation 2020) Financial Poise
This webinar is for the litigator who has not worked with an expert before or who otherwise would like some review. What’s the difference between a consulting expert and a testifying witness? How do you make sure your proposed expert will be accepted as an expert by the court? How do you protect your communications with your expert? What is an expert report and what can you do to make sure it is excellent? How do you plan your direct exam of your expert? How do you plan for redirect? This webinar addresses these topics.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/valuation-working-with-an-expert-2020/
As the legal funding market evolves, so too do the legal/ethical jurisprudence, strategic decisions inherent in utilizing funding, financial instruments used for funding, and nature of funder/funded relationship. In this webinar, a panel of experienced litigation funding professionals examine three live legal funding deals, and discuss how they impact considerations of (i) disclosure of litigation funding, (ii) fee-splitting and non-attorney ownership of law firms, and (iii) financial engineering of innovative funding deals.
Part of the webinar series: Commercial Litigation Funding 2021
See more at https://www.financialpoise.com/webinars/
Three Case Studies (Series: Commercial Litigation Funding 101) Financial Poise
As the legal funding market evolves, so too do the legal/ethical jurisprudence, strategic decisions inherent in utilizing funding, financial instruments used for funding, and nature of funder/funded relationship. In this webinar, a panel of experienced litigation funding professionals examine three live legal funding deals, and discuss how they impact considerations of (i) disclosure of litigation funding, (ii) fee-splitting and non-attorney ownership of law firms, and (iii) financial engineering of innovative funding deals.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/three-case-studies-2020/
LEGAL ETHICS – BEST PRACTICES 2022 - How to Avoid Malpractice & Disciplinary ...Financial Poise
This webinar presents basic practice pointers to avoid malpractice and disciplinary actions, and how to respond to claims of malpractice or unethical behavior if they arise. The panel also discusses the role that malpractice insurance plays in these situations and the ramifications of a malpractice judgment or disciplinary action. Model Rules addressed may include: those that govern the client-lawyer relationship (Rules 1.1 through 1.10; 1.13; and 1.16); those that that speak to transactions with persons other than clients (Rules 4.1 through 4.4); those that govern the responsibilities of managing and supervisory lawyers, subordinate lawyers, non-lawyer assistance, independence, unauthorized practice of law, and multijurisdictional practice (Rules 5.1 through 5.5); and those that govern communication, including advertising and solicitation of clients (Rules 7.1 through 7.5).
Part of the webinar series: LEGAL ETHICS – BEST PRACTICES 2022
See more at https://www.financialpoise.com/webinars/
Mercer Capital's Value Matters™ | Issue 1 2017 | Differing Expert Witness Val...Mercer Capital
Mercer Capital's Value Matters™, published 6 times per year, addresses gift & estate tax, ESOP, buy-sell agreement, and transaction advisory topics of interest to estate planners and other professional advisors to business.
A Menu of Products for Investors and Lawyers (Series: Commercial Litigation F...Financial Poise
Litigation funding is an increasingly-popular tool for attorneys and clients to share the risk and reward of litigation with third-party investors, and for investors to capitalize on the uncorrelated returns generated by legal-driven revenue. However, the term "litigation-" or "legal-" funding actually encompasses a handful of products, which vary based on borrower profile, stage and sector of litigation, use of proceeds, and ultimately, cost of capital and risk-reward profile. This webinar examines three funding products -- case fundings, law firm loans, and portfolio fundings -- and aims to inform attorneys on best solutions for their firms and clients, and provide an overview for institutional investors looking to allocate capital to litigations.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/a-menu-of-products-for-investors-and-lawyers-2020/
Similar to Financial Experts in Business Litigation (20)
Analysis of legal principles to real estate contracts in Ontario, Canada, including specific performance, action for damages, certificates of pending litigation, cautions and related matters.
These tips, pointers and information are intended for persons who must attend for cross-examination or examination for discovery in a civil proceeding in Ontario. There are some procedural differences between cross-examination and discovery but generally, preparation for the examination is the same.
At the root of appeals from judgments in commercial cases is the burning question: Does the result make sense from a business perspective? or put in more legally-eloquent language: Does this result meet the test of commercial reasonableness? "Commercial Reasonabless" is a concept Canadian courts address frequently to determine if business conduct or a result makes sense.
This paper will show that in commercial appeals, the Court of Appeal generally operates on the principle of commercial reasonableness. If the relief sought is not commercially reasonable, then you are unlikely to achieve a successful result for your client. I hope to show that appellate courts in Ontario approach appeals involving commercial disputes by asking whether the trial judge’s decision was commercially reasonable. In short, The court will not adopt an interpretation that is clearly commercially absurd.
The author is a senior business litigation and arbitration lawyer in Toronto who has argued many business appeals in the Ontario Court of Appeal. He is also an experienced trial and arbitration counsel. Senior partner of Ellyn Law LLP Business Litigation & Arbitration Lawyers, Mr. Ellyn heads a team of competent litigation lawyer who are at the vanguard of developments of business litigation and arbitration in Ontario. Igor Ellyn is also the Chair of the Business Litigation & Arbitration Practice Group of INBLF.com, the International Network of Boutique Law Firms.
The authors explain how a Business Legal Checkup ("BLC") can be useful. BLC is a diagnostic tool small and medium size businesses can use to verify if legal aspects of their operation comply with law and to minimize risk, litigation and expense. When the BLC is completed, the business owner receives a lawyer’s report red-flagging matters which need correction, improvement or further legal advice. Contact the authors for more information.
When advising business clients about doing business in Canada, lawyers must turn their minds not only to the kinds of corporate vehicles which Canadian law permits but also the remedies permitted if disputes arise. In this paper, we highlight the range of remedies available in the common law jurisdictions of Canada to protect shareholders and others from abusive corporate action.
This is the fourth update revision of a paper which was first published on the internet in 2005. It has been widely read and has been well-received by clients and other lawyers. We believe that we have been repeatedly quoted by other lawyers. Our paper was used in global corporate law texts in Asia and was including in required reading for a business valuators program in Canada.
This paper begins by discussing the various sources of shareholder rights, including corporate statutes, articles of incorporation and by-laws, and shareholder agreements. Although securities laws will also be briefly mentioned, the securities regime is exceedingly complex and it is beyond the scope of this paper to address it in detail. We then discuss the remedies provided by corporate statute to shareholders who are aggrieved by the manner in which management conducts the business and affairs of the corporation, including voting, court-ordered meetings, derivative actions, the oppression remedy, investigations, appraisals and court-ordered winding-up on the “just and equitable principle”.
The oppression remedy, widely acknowledged to be the most powerful weapon in the shareholder's arsenal of remedies, focusses on two particular points: the broad definition of "complainant" under corporate statutes, and the manner in which the courts have defined the reasonable and legitimate expectations of shareholders and other "proper persons" under the oppression remedy.
The authors are members of ELLYN LAW LLP Canadian Business Litigation & Arbitration Lawyers, a Toronto law firm, specializing in dispute resolution for small and medium businesses and their shareholders. The firm is a member of the International Network of Boutique Law Firms (www.inblf.com), a prestige network of specialized law firms who have demonstrated pre-eminence their practice fields. Ellyn Law LLP is INBLF’s designated Toronto firm for shareholder disputes and arbitration. Igor Ellyn, QC is the Chair of INBLF's Business Litigation & Arbitration Practice Group.
In the seven years since this paper was first published, ELLYN LAW LLP has acted on dozens of complex shareholder disputes. Despite our long experience in this area, each case brings its shares of new twists and surprises. In each revision of this paper, we have added the benefits of our added experiences.
In this paper, Toronto lawyers Evelyn Perez Youssoufian and Orie Niedzviecki discuss the impact of an important case in the commercial arbitration and the supervision of arbitration by the Superior Court of Justice of Ontario.
The Ontario Superior Court decision of Farah v Sauvageau Holdings Inc., 2011 ONSC 1819, resolves many issues regarding orders and awards in arbitration proceedings. The application was brought because there were novel issues raised in its underlying arbitration. In his decision, Justice Paul Perell addresses several important issues, some brought up at the Superior Court for the first time, which should be taken into account by both arbitrators and arbitral counsel when conducting an arbitration.
This paper discusses the issues of orders and awards in an arbitration as raised by Farah v Sauvageau; including an arbitrator's jurisdiction to make orders affecting non-parties, Mareva injunctions, Anton Piller orders, Norwich orders, orders for interim preservation of property or orders for Certificate of Pending Litigation. It also discusses whether it is or when it may be appropriate for arbitral counsel to have ex parte communications with the arbitrator.
The also paper discusses whether an arbitral award can become an order of the court without resorting to the procedure in s. 50 of the Ontario Arbitration Act, 1991, in any circumstance (even an ex parte award).
The authors are members of ELLYN LAW LLP Business Litigation & Arbitration Lawyers, a Toronto law firm, specializing in dispute resolution for small and medium businesses and their shareholders. The firm is a member of the International Network of Boutique Law Firms (www.inblf.com), a prestige network of specialized law firms who have demonstrated pre-eminence their practice fields. Ellyn Law LLP is INBLF’s designated Toronto firm for shareholder disputes and arbitration. The authors were counsel on Farah v Sauvageau, and have been counsel on various international arbitrations.
This paper is for information only. It is not legal advice. It was presented at a legal seminar presented in Toronto on October 26, 2012.
This article is an excerpt of the Canada Chapter of International Liability of Corporate Directors, 2nd edition, published by Juris Publishing in February 2013. This excerpt excludes numerous aspects of the full chapter, particularly in reference to offering corporations, national corporate reporting, the supervisory role of the securities commissions, insider trading, prospectus violations, director loans and directors’ and officers’ liability insurance and indemnification of officers and directors. Further, some sections have been abridged. The full article should be consulted for the omitted aspects and for a more complete analysis of the applicable law. This article is not legal advice and is intended solely as information. Further information can be obtained from the authors.
In Canada, there is a large body of statutory and common law which provides guidance about the standards of conduct expected from directors and attaches personal liability for failing to meet those standards. Directors now owe expanded duties to shareholders, employees, creditors, and other stakeholders and are increasingly being held personally responsible for the corporation’s conduct. Liability attaches under the Canada Business Corporations Act (CBCA), and under provincial corporations acts, most of which are similar to the Ontario Business Corporations Act (OBCA). This article deals only with liabilities under business corporations.
Commercial Arbitration is a process which depends on the consent of the parties. Only parties to the arbitration agreement can be affected by the arbitrator's award. In this article, the authors review a recent judgment of the Ontario Superior Court of Justice which set aside an arbitrator's award which made orders against third parties.
The case concerned a business transaction for the sale of a collection agency. The sale closed but the purchaser, a corporation operated by a lawyer, thought it had been defrauded by the seller. The purchaser commenced a claim in court attempting to place a certificate of pending litigation on the seller's house but then decided that he wished to arbitrate the dispute under the arbitration clause in the sale agreement.
After the arbitrator was consensually selected, the purchaser made a motion to the arbitrator without notice to seek a Mareva Injunction. A Mareva injunction is an order which restrains the defendant from disposing of his assets until the lawsuit has been concluded. It is typically obtained where there is reason to fear that the defendant will remove his assets from the jurisdiction before the case is completed and thereby avoid enforcement of any judgment which may be obtained. Typically, the order is also directed at banks and others who have financial dealings with the defendant, in the hope that they will freeze the defendant's accounts.
In the case discussed in the article, the claimant sought a Mareva injunction from the arbitrator without notice to the defendant. The arbitrator granted the order including an order directing banks to freeze the defendant's accounts. The claimant then filed the arbitrator's order in the court office without following the proper procedure to turn it into a court order. On a motion to the Court, the judge, the Hon. Justice Paul Perell, discussed in detail the principles affecting arbitral awards made without notice and whether an arbitrator can make an order which affects parties who are not involved in the arbitration. After an exhaustive analysis which is explained in the article, the Court decided that the arbitral order had to be set aside. The judge also called the arbitral award filed in the court office "bogus" because the correct procedure had not been followed.
Orie Niedzviecki, a partner of Ellyn Law LLP Business Litigation and Arbitration Lawyers, Toronto, and Evelyn Perez Youssoufian, an associate of the firm, were counsel for the seller. Assisted by Igor Ellyn, QC, CS, FCIArb., Senior Partner of Ellyn Law LLP, they explain the issues and legal principles enunciated by Justice Perell in this article.
The hallmark of international commercial arbitration is the right of parties to select the law to govern their dispute. However, choice of law or party autonomy is subject to limits. Sometimes arbitrators are obliged to apply the mandatory law of a jurisdiction contrary to the will of one or more of the parties. The scope of these issues was discussed by Igor Ellyn in a presentation to the NY State Bar Association and Cornell University at the Bloomberg Center in New York in March 2008. These power point slides summarize the presentation.
Enforcement of a U.S. or international judgment in Canada requires expert knowledge of Canadian law and procedure.
Courts in Ontario, Canada, which includes the Greater Toronto Area, are receptive to the enforcement of final and conclusive foreign money judgments is subject to certain statutory exceptions and procedural requirements. This article explains the law and procedure applicable in Canada, with emphasis on the Province of Ontario, where one-third of Canada's population resides.
The authors are business litigation and arbitration lawyers in Toronto, Canada. This article is an excerpt of a chapter of which they are authors which comprehensively deals with the law of enforcement of foreign money judgments in Canada.
Igor Ellyn, QC, CS is a leading Toronto litigation lawyer, chartered arbitrator and mediator, who specializes in shareholders disputes and arbitration. In this highly informative presentation, Mr. Ellyn discusses litigation and arbitration of shareholder oppression cases.
Small and medium sized businesses are the engines which drive the North American economy. Increasingly, people go in to their own business. Often spouses and other family members are in business together. Because of mutual trust and sharing which exists at the start of these arrangements, spouses tend not to make agrements about what will happen if the marriage breaks down.
When spouses who are in business together divorce, there are also consequences for the business. Who will keep the business? What will the spouses be able to work together? How much is the business worth? Who should buy the business? How will a buyout be funded? These questions are just the tip of the iceberg.
In this PowerPoint slide presentation, we provide useful information about the legal problems confronting separating or divorcing couples who are in business together. By reviewing these slides you will gain important insights about the issues lawyers have to deal with in these situations. What law applies? What other kinds of experts do you need? What legal advice will you need to find a workable resolution? What evidence will you need if the case has to go to trial? What procedure must be followed? If you are in business with your spouse or life partner, the information in these slides provides a few pointers about Ontario law even if the relationship is continuing. Sometimes, a unanimous shareholders’ agreement or some strategic advice can help avoid expensive litigation down the road.
These slides were part of a presentation at a lawyers conference conducted by Osgoode Professional Development in Toronto on March 27, 2012. They are intended as information only and not legal advice.
The authors are experienced litigation and arbitration lawyers in Toronto, Ontario, Canada, who act on complex shareholder disputes, typically involving closely-held corporations.
Corporate Law and Family Law at the Crossroads: Spouses as Shareholders in Canada 2012
Small and medium sized businesses are the engines which drive the North American economy. Increasingly, people go in to their own business. Often spouses and other family members are in business together. Because of mutual trust and sharing which exists at the start of these arrangements, spouses tend not to make agrements about what will happen if the marriage breaks down.
When spouses who are in business together divorce, there are also consequences for the business. Who will keep the business? What will the spouses be able to work together? How much is the business worth? Who should buy the business? How will a buyout be funded? These questions are just the tip of the iceberg.
In this PowerPoint slide presentation, we provide useful information about the legal problems confronting separating or divorcing couples who are in business together. By reviewing these slides you will gain important insights about the issues lawyers have to deal with in these situations. What law applies? What other kinds of experts do you need? What legal advice will you need to find a workable resolution? What evidence will you need if the case has to go to trial? What procedure must be followed? If you are in business with your spouse or life partner, the information in these slides provides a few pointers about Ontario law even if the relationship is continuing. Sometimes, a unanimous shareholders’ agreement or some strategic advice can help avoid expensive litigation down the road.
These slides were part of a presentation at a lawyers conference conducted by Osgoode Professional Development in Toronto on March 27, 2012. They are intended as information only and not legal advice.
The authors are experienced litigation and arbitration lawyers in Toronto, Ontario, Canada, who act on complex shareholder disputes, typically involving closely-held corporations.
Digital Transformation and IT Strategy Toolkit and TemplatesAurelien Domont, MBA
This Digital Transformation and IT Strategy Toolkit was created by ex-McKinsey, Deloitte and BCG Management Consultants, after more than 5,000 hours of work. It is considered the world's best & most comprehensive Digital Transformation and IT Strategy Toolkit. It includes all the Frameworks, Best Practices & Templates required to successfully undertake the Digital Transformation of your organization and define a robust IT Strategy.
Editable Toolkit to help you reuse our content: 700 Powerpoint slides | 35 Excel sheets | 84 minutes of Video training
This PowerPoint presentation is only a small preview of our Toolkits. For more details, visit www.domontconsulting.com
Tata Group Dials Taiwan for Its Chipmaking Ambition in Gujarat’s DholeraAvirahi City Dholera
The Tata Group, a titan of Indian industry, is making waves with its advanced talks with Taiwanese chipmakers Powerchip Semiconductor Manufacturing Corporation (PSMC) and UMC Group. The goal? Establishing a cutting-edge semiconductor fabrication unit (fab) in Dholera, Gujarat. This isn’t just any project; it’s a potential game changer for India’s chipmaking aspirations and a boon for investors seeking promising residential projects in dholera sir.
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Cracking the Workplace Discipline Code Main.pptxWorkforce Group
Cultivating and maintaining discipline within teams is a critical differentiator for successful organisations.
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Discover the innovative and creative projects that highlight my journey throu...dylandmeas
Discover the innovative and creative projects that highlight my journey through Full Sail University. Below, you’ll find a collection of my work showcasing my skills and expertise in digital marketing, event planning, and media production.
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Memorandum Of Association Constitution of Company.pptseri bangash
www.seribangash.com
A Memorandum of Association (MOA) is a legal document that outlines the fundamental principles and objectives upon which a company operates. It serves as the company's charter or constitution and defines the scope of its activities. Here's a detailed note on the MOA:
Contents of Memorandum of Association:
Name Clause: This clause states the name of the company, which should end with words like "Limited" or "Ltd." for a public limited company and "Private Limited" or "Pvt. Ltd." for a private limited company.
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Registered Office Clause: It specifies the location where the company's registered office is situated. This office is where all official communications and notices are sent.
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Constitutional Document: It serves as the company's constitutional document, defining its scope, powers, and limitations.
Protection of Members: It protects the interests of the company's members by clearly defining the objectives and limiting their liability.
External Communication: It provides clarity to external parties, such as investors, creditors, and regulatory authorities, regarding the company's objectives and powers.
https://seribangash.com/difference-public-and-private-company-law/
Binding Authority: The company and its members are bound by the provisions of the MOA. Any action taken beyond its scope may be considered ultra vires (beyond the powers) of the company and therefore void.
Amendment of MOA:
While the MOA lays down the company's fundamental principles, it is not entirely immutable. It can be amended, but only under specific circumstances and in compliance with legal procedures. Amendments typically require shareholder
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Improving profitability for small businessBen Wann
In this comprehensive presentation, we will explore strategies and practical tips for enhancing profitability in small businesses. Tailored to meet the unique challenges faced by small enterprises, this session covers various aspects that directly impact the bottom line. Attendees will learn how to optimize operational efficiency, manage expenses, and increase revenue through innovative marketing and customer engagement techniques.
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Implicitly or explicitly all competing businesses employ a strategy to select a mix
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Business Valuation Principles for EntrepreneursBen Wann
This insightful presentation is designed to equip entrepreneurs with the essential knowledge and tools needed to accurately value their businesses. Understanding business valuation is crucial for making informed decisions, whether you're seeking investment, planning to sell, or simply want to gauge your company's worth.
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Enterprise excellence and inclusive excellence are closely linked, and real-world challenges have shown that both are essential to the success of any organization. To achieve enterprise excellence, organizations must focus on improving their operations and processes while creating an inclusive environment that engages everyone. In this interactive session, the facilitator will highlight commonly established business practices and how they limit our ability to engage everyone every day. More importantly, though, participants will likely gain increased awareness of what we can do differently to maximize enterprise excellence through deliberate inclusion.
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2. Topics - Using Financial Expert Witnesses
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What an expert witness should accomplish
Determining when to use a financial expert
What kind of financial expert do you need?
Types of financial expert witnesses
Factors to consider when hiring the expert
New developments in presentation of expert evidence
Conflicts of interest and disclosure
Litigation privilege relating to expert reports
Best practices for qualifying a financial expert
Limits of admissibility of expert evidence
Preparing the financial expert to testify at the hearing
Preparing for cross-examination of the opposing expert
The Court’s power to appoint an expert
Counsel’s role in the content of the expert’s report
ELLYN LAW LLP - www.ellynlaw.com
3. What an expert witness should accomplish
Title
In Canada (Director of Investigation and Research) v. Southam
Inc., [1997] 1 S.C.R. 748 at 780 at para. 62, the Court stated:
Experts, in our society are called that precisely because they can
arrive at well-formed and rational conclusions. If that is so, they
should be able to explain, to a fair-minded but less well-informed
observer the reasons for their conclusions. If they cannot, they are
not very expert. If something is worth knowing and relying upon, it is
worth telling. Expertise commands deference only when the expert is
coherent. Expertise loses the right to deference when it is not
defensible.
The points we will discuss apply to business litigation in Ontario Courts.
Similar rules and evidentiary principles apply before the Federal Court of
Canada, in commercial arbitrations and before administrative tribunals.
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4. Determining when to use a financial expert
Title
Business litigation is usually about numbers.
The first question is to ask is whether you need an expert at all.
An expert witness is required when conclusions must be drawn from facts
which require skill, experience and knowledge that the trial judge does not or
cannot be expected to have.
An expert will provide an opinion on the facts to enable the judge to make
inferences about matters on which expertise is required.
Are there financial issues about which opinions and conclusions must be
drawn? Is a valuation of shares or an appraisal of property required? There
are many possibilities and many experts with expertise in different fields.
The decision whether to hire an expert could also be affected by economic
factors of the case. How much money is at stake? What are the prospects
for success? How much will the expert cost? Will the cost of the expert
make the litigation prohibitively expensive? Can this case succeed at trial
without an expert witness?
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5. What kind of financial expert do you need? #1
Title
If you select an expert who is not qualified to provide the opinion on the
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correct issue, the expert evidence may not be admissible.
Even if the expert’s evidence is admitted, the trial judge may reject it in
favour of the opposing party’s better-suited expert.
Selecting an expert with the appropriate expertise is critical. It requires
a carefully considered strategy and good research.
Ask yourself this question: “What inferences must the trial judge draw
from the facts on matters which s/he is unlikely to know or have
experience in for my client to succeed?” The answer to this question will
dictate the type of expert and the scope of the opinions you require.
Interview the proposed expert to satisfy yourself about the scope of
his/her expertise. A forensic accountant who specializes in family law
and personal injury damages may not be best suited for your business
loss of profits case.
Research the cases the expert has done previously and ask the expert
about his/her background. Check the expert’s web profile and articles
s/he has published.
ELLYN LAW LLP - www.ellynlaw.com
6. What kind of financial expert do you need? #2
Title
Ask colleagues for recommendations of an expert. Ask about
expertise, experience, cost, report writing skills and ability to testify.
Some experts prepare excellent reports but are not good witnesses.
Some business valuators and forensic accountants are very
professional witnesses.
Even when you get a good reference about an expert, there is no
substitute for thorough research. Just as you must research the law and
understand the facts, you must conduct internet research about your
proposed financial expert.
Similar cases may provide insights about whether you need an
investment analyst, an economic or a portfolio management consultant.
Read articles by potential experts to identify the kind of cases about
which they have opined. Interview the potential expert before engaging
him/her. The expert could be the most important witness in your case.
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7. Types of financial expert witnesses
As counsel, you know that your case requires some “number-crunching”
but what kind of expert should you hire? The question could be difficult
to answer because there is a panoply of financial experts.
In a fast CanLII search, I found nearly 1,200 cases where there was
some type of financial expert witness. Since 95% of cases settle before
trial, this is just the tip of the iceberg of cases using financial experts.
Here are some of the types of financial experts:
Forensic Accountant, Business Valuator, Fraud Examiner
Economist, Actuary, Pension and Benefits Consultant
Real Estate Appraiser, Equipment Appraiser, Jewellery and Art Appraiser
Investment Analyst, Stock and Investment Portfolio Analyst
Tax Expert, Merger & Acquisition Expert, Entrepreneurship Analyst
Management Accountant, Cost Accountant
Workers Compensation Consultant
Industry-specific Consultants, e.g. Gaming, Automobile dealers, etc.
There are also other, less common financial experts.
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8. Factors to consider when hiring the expert
Title
When hiring an expert, consider these “red flags” for experts who may not be
helpful to your client’s case.
With rare exceptions, be very cautious about hiring an expert:
Who has any connection with your client --- even if your client insists that s/he
8
is the best person for the case. The lack of independence and apprehension
of bias could be devastating.
Who is doing his/her first case ever – unless the case is very small.
Whose fees are likely to be out of proportion to the amounts at issue.
Who is unlikely to be a good match for the opposing party’s expert as to
title, experience, knowledge, publications, stature in the professional
community.
Who was found to be not credible in a reported case.
Who is not specialized in the kind of expertise you need for this case.
Who had a previous connection or dispute with the opposing party.
Who oversells and advocates for the success of your client’s case.
ELLYN LAW LLP - www.ellynlaw.com
9. New developments in presentation of expert evidence #1
Title
There are some new developments in how expert evidence is presented.
Judges and arbitrators sometimes encourage
Hiring a single expert for all parties
Expert conferences where common issues are discussed
“Concurrent Expert Evidence”, where the experts testify in a roundtable.
Expert witness conferences allow the Court to streamline the issues and
focus attention on the points of disagreement between the experts.
“Hot-tubbing” (concurrent expert evidence) allows experts to testify at trial in
a conference setting so that instant responses may be given by opposing
experts on contentious points. This process, developed in Australian patent
cases, has now been used in Canadian courts: Apotex Inc. v. Astrazeneca
Canada Inc., 2012 FC 559 para 6.
Under the 2010 amendment of the Ontario Rules of Civil Procedure, Rules
50.07 (1)(c) and 20.05(2)(k) allow the Court to order experts to “meet on a
without prejudice basis” to identify areas of agreement and disagreement.
The Court also has the power to appoint its own expert: Rule 52.03(1) but
the power is rarely exercised. More about this later in this presentation.
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10. New developments in expert evidence #2
Title
Ontario Rules of Civil Procedure, Rule 4.1.01(1) requires every party-
appointed expert (a) to provide opinion evidence that is fair, objective and
non-partisan; (b) to provide opinion evidence that is related only to matters
that are within the expert’s area of expertise; and (c) to provide such
additional assistance as the court may reasonably require to determine a
matter in issue. Rule 4.1.01(2) provides that the duty prevails over any
obligation owed by the expert to the party.
In arbitrations, rules vary depending on the applicable procedure. A party
can also appoint its own expert. The UNCITRAL Arbitration Rules, Art.
29, permit the tribunal to appoint an expert after consulting the parties with
safeguards to ensure fairness and the right be heard.
IBA Rules on the Taking of Evidence in International Arbitration, Art. 5, deals
with party-appointed experts, including what the report must contain and
what must be disclosed. Art. 6 deals with tribunal-appointed experts just
like the UNCITRAL Arbitration Rules:
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11. Litigation privilege relating to expert reports #1
Title
Under Rule 31.06(3), a party may obtain disclosure of relevant
findings, opinions and conclusions of a party-appointed expert, including the
expert’s identity on discovery, but the party being examined need not
disclose the information or identity of the expert where,
the findings, opinions and conclusions of the expert were made in
preparation for contemplated or pending litigation; and
the party undertakes not to call the expert as a witness.
Once an expert begins to testify, s/he is no longer characterized as offering
advice to a party. S/he is offering an opinion for the court’s assistance. As
such, the opposing party must be given access to the foundation of the
opinion to test it adequately: R. v. Stone, 1999 CanLII 688 (SCC), para. 99.
Draft reports, preliminary findings and opinions must be disclosed prior to
trial if demanded: Conceicao Farms Inc. v. Zeneca Corp., 2006 CanLII
25345 (ONCA), para. 38. In light of this, both counsel and the expert should
be careful about the contents of a draft report.
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12. Litigation privilege relating to expert reports #2
Title
Litigation privilege governs an investigation undertaken by legal counsel for
the purpose of giving legal advice, but does not cover all investigations in
which lawyers play a lead role: Prosperine v. Ottawa-Carleton (2002) 37
CBR(4th)135.
If the client retains the expert, all of the expert’s work product must be
produced because litigation privilege does not apply. Typically, the lawyer
hires the expert and the client agrees to pay the expert directly. Care should
be taken that emails about draft opinions are sent only to counsel.
Admissibility of expert evidence is unaffected by illegality or breach of ethics
with few exceptions. Evidence obtained by a lawyer through a private
investigator who interviewed an opposing party is still admissible even if
obtaining the evidence contravened the Rules of Professional Conduct:
Cowles v. Balac (2006) 83 OR (3d) 660 (ONCA) para. 198.
Of course, the admissibility of the improperly-obtained evidence does not
prevent the Law Society from disciplining the lawyer. So, this is not a
recommended strategy.
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13. Conflicts of interest and disclosure
Title
Experienced business valuators, forensic accountants and other
13
financial experts tend to be very sensitive about their duties to be
independent even though they are engaged by a party. A finding of bias
in reasons for judgment could be career-damaging for the expert.
Prior or ongoing connections between you or your client and the expert
must be disclosed. Some prior connections may be irrelevant.
By disclosing a prior connection, counsel and the expert avoid the risk of
embarrassment, inadmissibility and presumption of bias which might be
elicited in cross-examination.
If the prior connection is too close, the expert may be unable to accept
the engagement.
If the expert has a prior or ongoing connection with the opposing party
or its counsel, the expert cannot accept the case. The opposing party
would object on the basis that the expert might be relying on information
obtained in confidence, even if there is no legal privilege.
ELLYN LAW LLP - www.ellynlaw.com
14. Best practices for qualifying a financial expert #1
Title
Before an expert witness testifies at trial, there are two requirements:
The expert must deliver a timely report which complies with the many
requirements of Rule 53.03; and
The expert must be accepted by the trial judge as qualified to give
evidence in the relevant field of expertise.
“…the evidence must be given by a witness who is shown to have
acquired special or peculiar knowledge through study or experience in
respect of the matters on which he or she undertakes to testify.” R. v.
Mohan, 1994 CanLII 80 (SCC).
Before the witness testifies, the Court holds a voir dire in which counsel
calling the expert presents the witness’ qualifications and opposing
counsel cross-examines on the qualifications.
The judge then rules on whether the expert’s evidence is qualified and
states the scope of the expert’s qualifications.
Acceptance of the expert’s qualifications to testify on a particular topic
does not mean that the judge accepts the expert’s conclusions.
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15. Best practices for qualifying a financial expert #2
Title
Preparation for the voir dire begins long before the trial. Counsel must
15
use due diligence not only to identify a witness who is competent on the
required topic but whose qualifications will be impressive when
compared to those of the opposing expert.
When done correctly, the qualification voir dire is not a long process.
Don’t lose sight of your objective: to persuade the judge that the expert
is competent in the relevant field or sub-field. The judge will not decide
reliability at this stage but a poor first impression could be costly.
Counsel should not be content to refer to the expert’s resume alone.
Search for internet references and other cases in which the expert has
testified on related matters. Identify cases on which his/her evidence
has been accepted.
Research for what judges have said about this expert’s evidence in
related cases. If you cannot find cases, ask the expert to provide
details. Ask the expert if there are any “skeletons” which might come up
in cross-examination.
ELLYN LAW LLP - www.ellynlaw.com
16. Best practices for qualifying a financial expert #3
Title
Review the opposing party’s expert report and resume and discuss it
with your expert. Is the opposing expert more competent or
experienced in some aspects of the relevant topic? Discuss with your
expert how to anticipate and neutralize this distinction.
If your expert business valuator has never valued the shares of an auto
dealership, your expert might be at a disadvantage if you find out the
opposing expert is the “guru of auto valuation”. This emphasizes the
importance of selecting your expert wisely.
Anticipate the cross-examination on your expert’s qualifications and
prepare your expert for it. The cross-examination will focus on the
shortcomings of your expert’s experience, credentials or position in
relation to the opposing expert. Discuss with your expert how the
qualification voir dire was conducted in other cases.
Remind your expert that this is not the time to get into the merits of the
case nor for the expert to tell the judge about a big case s/he was on.
You might be surprised how many experts can’t wait to tell the judge
about their big case.
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17. Limits on admissibility of expert evidence #1
Title
Expert evidence may be inadmissible on four grounds:
Failure to serve all opposing parties with a timely report which
complies with Rule 53.03 or under Rule 36.01(4) (in the case of
examination of an expert before trial with leave of the court)
Failure to be qualified as having expertise to give an opinion on the
material subject-matter
Irrelevancy of the evidence
Unreliability of the evidence
An expert’s evidence may be partly inadmissible, (to the extent that the
expert exceeded his competence). The Court refused to admit the
expert’s opinion the expert resorted to independent fact-finding: 820823
Ontario Ltd. v. Kagan, 2003 CanLII 24295 (ON SC).
Counsel must ensure that the expert understands the requirements of
Rule 53.03 and limits the report to the scope of his/her expertise. A
report which exceeds the expert’s competence may be less persuasive
even if it is admissible.
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18. Limits on admissibility of expert evidence #2
Title
In R. v. Mohan 1994 CanLII 80 para 17, the Supreme Court of
Canada said that to be admissible, expert evidence must be
relevant to the issues in the case;
necessary in assisting the trier of fact;
there must not be any exclusionary rule present; and
the expert must be properly qualified.
The test for necessity is whether the expert is able to assist the judge by
giving information beyond the judge’s knowledge and experience.
The court will also consider the expert’s independence and objectivity. A
biased expert is unlikely to provide useful assistance: Alfano v.
Piersanti, 2012 ONCA 297 para 104-105.
Admissibility is not automatic. In an 11-year American study by PwC, 48% of
financial expert reports were ruled inadmissible. See references.
Even if the evidence is admissible, the judge must still weigh the opinion
evidence and determine if it is credible, independent and commercially
reasonable and draw his/her own conclusions.
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19. Limits on admissibility: Trial judge as “gatekeeper”
Title
In R. v. J.-L.J., 2000 SCC 51, the Court held that the trial judge should
take the role of “gatekeeper” seriously. The admissibility of the expert
evidence should be scrutinized when proffered, and not admitted too
easily on the basis that all frailties could go to weight rather than
admissibility.
The trial judge must do the following analysis to exercise his/her
discretion about admissibility of the expert opinion evidence:
“The subject-matter must be such that ordinary people are unlikely to form a
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correct judgment about it, if unassisted by persons with special knowledge”;
Daubert-like analysis for science, with special scrutiny for novel science;
The extent to which the expert opinion approaches the ultimate issue to be
decided by the court;
The absence of any exclusionary rule;
Proper qualification of the expert; and
Relevance of the proposed expert evidence to the issues in the case; and
Necessity in assisting the trier or fact.
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20. Limits on admissibility: Rule 53.03 requirements
Title
To be admissible under Rule 53.03(2.1) of the Ontario Rules of Civil
Procedure, an expert’s report must contain the following information:
The expert’s name, address and area of expertise.
The expert’s qualifications and employment and educational experiences in his
20
or her area of expertise.
The instructions provided to the expert in relation to the proceeding.
The nature of the opinion being sought and each issue in the proceeding to
which the opinion relates.
The expert’s opinion respecting each issue and, where there is a range of
opinions given, a summary of the range and the reasons for the expert’s own
opinion within that range.
The expert’s reasons for his or her opinion, including,
a description of the factual assumptions on which the opinion is based,
a description of any research conducted by the expert that led him or her to
form the opinion, and
a list of every document, if any, relied on by the expert in forming the opinion.
An acknowledgement of expert’s duty (Form 53) signed by the expert.
The expert’s report must be served at least 60 days before the pre-trial
conference under Rule 53.03(3).
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21. Limits on admissibility: Scope of Rule 53.03 and
evidence beyond accepted qualifications
Title
Rule 53.03 applies only to “litigation experts” who have not been
21
involved with the parties. It does not apply to “treatment experts”, who
were witnesses of events and have expertise and opinions which will
assist the Court.
If your client’s auditor or accountant testifies about the financial
statements and provides opinions about events witnessed by
him/her, these opinions may be given without complying with Rule
53.03: Continental v. J.J.’s Hospitality, 2012 ONSC 1751 paras. 38-37.
This is useful law when you have an expert who was also a fact witness.
However, your client’s auditor does not take the place of a forensic
accountant where loss of profits must be proved.
Where an expert has been qualified on a particular topic but gives
opinions beyond the scope of his/her expertise, the evidence may be
admissible in a criminal case, if the expert actually has the expertise to
give the opinion: R. v. Marquand, 1993 CanLII 37 (SCC) para. 37.
The rule is narrower in civil cases and the expert may have to be requalified or the extraneous evidence will not be admissible: Ault v.
Canada (A-G), 2007 CanLII 55358 (ON SC) paras. 19-22.
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22. Limits on admissibility: “the ultimate question”
Title
Expert testimony is admissible even if it relates directly to the
ultimate question which the trier of fact must answer.
In R. v. Burns, 1994 CanLII 127, the SCC stated:
While care must be taken to ensure that the judge or jury, and not the
expert, makes the final decisions on all issues in the case, it has long
been accepted that expert evidence on matters of fact should not be
excluded simply because it suggests answers to issues which are at the
core of the dispute before the court. . .
But, as the SCC held in R. v. Marquard, 1993 CanLII 37 (SCC) para.
49, “oath-helping” is not admissible:
“[i]t is a fundamental axiom of our trial process that the ultimate
conclusion as to the credibility or truthfulness of a particular witness is for
the trier of fact, and is not the proper subject of expert opinion.”
See also R. v. D.D., 2000 SCC 43 and R. v. Bryan, 2003 CanLII
24337 (ON CA) para. 17.
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23. Limits on admissibility: Independence of the expert #1
Title
The expert’s independence should be raised at the voir dire.
However, the trial judge will usually not usually decide the
independence issue on the voir dire:
“When a challenge to expert evidence is based on the expert witness
having a connection to a party or an issue in the case or a possible
predetermined position on the case, the essence of the challenge is
that the evidence is not reliable because the expert has tailored his
evidence to suit the position of the particular party or the expert’s
personal views. This kind of reliability is not an admissibility issue.”:
See Gallant v. Brake-Patten 2012 NLCA 23 para 86-93; Henderson v.
Risi, 2012 ONSC 3459 para. 14.
On the other hand, there are cases where the trial judge will refuse to
qualify the expert on the grounds of lack of independence.
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24. Limits on admissibility: Independence of the expert #2
Title
In Deemar v. College of Veterinarians of Ontario, 2008 ONCA 600, the
expert for the doctor was a former CVO administrator, who was terminated
and sued CVO for wrongful dismissal. ONCA held at para 21:
It is up to the trier of fact to qualify a proposed expert witness. The party
tendering the proposed expert witness must satisfy the trier that he or she
possesses not only the necessary expertise, but the requisite
independence as well. For example, the trier may refuse to qualify a
person of unquestioned expertise who is closely related to the tendering
party.
The CVO Discipline Committee found the expert “strayed from the function
of an expert” and had taken on “the role of advocate and possibly the role of
the trier of fact.” The Committee refused to qualify the expert because when
the person rendering the evidence assumes the role of advocate, s/he “can
no longer be viewed as an expert in the legally correct sense”. ONCA
agreed with the conclusion as a proper basis for not admitting the expert.
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25. Limits on admissibility: Daubert principles
Title
Daubert (1993), Joiner (1997) and Kumho Tire (1999) are a trilogy of
US Supreme Court cases concerning admissibility of expert evidence.
Daubert dealt with assessment of the reliability of scientific evidence.
The four methods of validation are by evidence of testing, peer
review, error rates, and “acceptability” in the relevant scientific
community.
Kumho Tire went further to hold that Daubert principles also apply to
experts who are not scientists to the extent they are relevant. Some
expert evidence relies on the experience of the expert. The court may
enquire whether the opinion is based on methods which are reliable and
generally accepted before admitting the expert evidence.
Daubert and Kumho Tire principles have been applied in Canada. In R.
v. Abbey, 2009 ONCA 624, para. 112, the Court emphasized that a
flexible approach was appropriate for non-scientific expert
evidence, whose reliability depends heavily on the knowledge and
experience of the expert rather than on the methodology or theory
behind it.
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26. Preparing the financial expert to testify at the hearing #1
Title
Your expert has probably testified at trial several times. Ask him/her about
26
past experiences. Has s/he testified before this judge before?
The first aspect will be the qualification voir dire. If the expert is not
qualified, s/he will not be permitted to testify. Discuss how the expert has
dealt with qualifications in previous cases.
What aspects of the expert’s experience and credentials should be stressed
to address the expert’s opinions in this case? What should be highlighted to
make the expert appear more authoritative than the opposing expert?
Review the opposing expert’s credentials to identify differences in expertise
with reference to the opinions required in this case. Discuss with the expert
how to deal with these difference most persuasively.
Review any independence issues opposing counsel could raise and decide
how to deal with them. Review other qualification issues opposing counsel
might raise. Anticipate potential problems in qualifying the expert and raise
them in examination-in-chief where possible to soften their impact.
Role play. Make the voir dire succinct, interesting and persuasive.
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27. Preparing the financial expert to testify at the hearing #2
Title
After the expert has been qualified, s/he will have to testify about the issues
in his/her expert’s report.
The expert’s report was prepared months before trial. Are there are any
errors in calculations or changes in conclusions? The report may have been
prepared by a manager in the expert’s firm. The expert will have to fully
inform him/herself about the assumptions and conclusions.
Calculation errors discovered on the eve of trial could devastate the expert’s
opinion and even more so, if they arise during cross-examination.
Are there are any changes or new developments which should be discussed
or disclosed? How will these affect the conclusions?
An expert may have developed a new idea since the expert report was
prepared or feel less comfortable with an opinion in the report. Discuss
these topics and determine what should be disclosed and how to deal with
new developments.
Ask what issues the expert is concerned about in his/her opinion. Discuss
what potential cross-examination questions the expert is concerned about.
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28. Preparing the financial expert to testify at the hearing #3
Title
Review the expert’s report and the opposing expert’s report. Identify
areas of disagreement on assumptions and opinions.
Discuss how the assumptions which underlie the expert’s opinions will
be proved.
Discuss how to deal with any assumptions which cannot be proved by
witnesses or documents, or which have changed. An opinion based on
unproven assumptions will not be accepted by the court.
Discuss opinions which go beyond the written report or the expert’s
expertise. These may be not admitted in evidence. Discuss whether an
opinion which goes beyond the report should be given at all.
Role play cross-examination on difficult questions opposing counsel will
ask. Try different approaches dealing with possible weaknesses.
Remind your expert that precision and understatement are far more
persuasive than “beating around the bush” and acting like an advocate.
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29. Preparing for cross-examination of the opposing expert #1
Title
Your expert should help you prepare for cross-examination of the
29
opposing party’s expert. Preparation will differ if you are acting for the
plaintiff or the defendant. The defendant’s expert report is already a
critique of the plaintiff’s expert report.
Attacks on the opposing party’s expert fall into five categories: 1)
Qualifications and specific expertise; 2) Independence; 3) Assumptions;
4) Methodology and 5) Conclusions.
Remember the objective of your cross-examination is not to beat the
opposing expert to a pulp. Limit your preparation to casting enough
doubt about the opposing expert opinion that the Court prefers your
expert opinion. The process is relative not absolute.
Discuss with your expert where you are likely to score the most points
with the opposing expert. Focus your cross-examination on your
strongest points. You do not have to cross-examination on everything.
This topic lends itself to a presentation of its own. See paper by I. Ellyn
and V. Pileggi, Cross-Examining the Forensic Accountant.
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30. Preparing for cross-examination of the opposing expert #2
Title
You have two opportunities to cross-examine the opposing expert. Focus
30
your cross-examination for each occasion.
Decide early whether your objective on the voir dire is to render the
opposing expert’s evidence inadmissible or just to make him/her sound less
authoritative than your expert.
Limit cross-examination on qualifications, competence or independence to
matters which will assist your main objective, namely, to persuade the judge
that your expert’s opinion is the most authoritative and reliable one.
When cross-examining on qualifications, highlight the strengths of your
expert’s credentials. Seek admissions that the opposing expert considers
your expert’s publications authoritative. Emphasize a publication by the
opposing expert in which s/he supported your expert’s methodology in a
similar case.
It is unpersuasive to attempt to discredit the opposing expert on small points
on independence or qualifications when the opposing expert is obviously
qualified to give the expert evidence. It could do more harm than good.
“Keep your powder dry” for attacks on methodology and conclusions.
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31. Preparing for cross-examination of the opposing expert #3
Title
Cross-examination on the opposing expert’s opinions should be prepared
31
with the assistance of your expert. Ask your expert for assistance in
formulating the questions to cast doubt on the opposing expert’s opinions on
the five avenues of attack.
The expert is not trial counsel. You have to develop the cross-examination
questions but the expert should provide the ammunition.
At trial, your expert should be present to assist you with issues that come up
during the opposing expert’s examination in chief.
Review the opposing expert’s assumptions. If they have not been proven by
fact witnesses, this could be fertile ground for invalidating the conclusions.
Secure admissions that if certain assumptions are proved differently, your
expert’s conclusions are correct. Be sure to propose assumptions which
your witnesses have proved or which will be proved by later evidence.
If the methodology of the experts differ, understand the differences. “Slice
and dice” the methodology to identify as many points of agreement as
possible. Then, with your expert’s assistance, attack the reasonableness of
the points of disagreement.
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32. The Court or Tribunal’s right to appoint an expert
Title
Under Rule 52.03 of the Rules of Civil Procedure, a judge may, at any
32
time, appoint one or more independent experts to inquire into and report on
any question of fact or opinion relevant to an issue in the action. The expert
shall be named by the judge and, if possible, agreed on by the parties.
This jurisdiction is rarely exercised. The more common practice is for the
judge to encourage the parties to engage one expert if they agree to do so.
If the court has only one expert’s opinion evidence to consider, it is highly
likely that the court will accept the expert’s opinion unless it contains an
obvious flaw or is found not to be independent.
There are dangers with appointing a single expert. If one party does not like
the opinions or assumptions of the expert, it is too late to hire another expert.
The single expert may just not like you or your client. A single expert may
favour the counsel s/he knows better. The expert might draw unwritten
conclusions about your client’s credibility which will affect the conclusions.
Despite the party-appointed expert’s primary duty of
independence, engaging your own expert still affords opportunities for advice
and discussion, commentary and providing the assumptions on which the
expert should base his/her opinion. There is also the benefit of litigation
privilege.
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33. Counsel’s role in the content of the expert’s report #1
Title
Counsel must present the facts to the expert fairly and thoroughly.
Counsel provides the preliminary assumptions to the expert.
Counsel and the expert should discuss how to frame provable assumptions
so that a proper factual foundation for the expert’s opinion exists. If the
assumptions are faulty, the opinion may be valueless.
Counsel must provide all relevant documents to the expert. A surprised or
uninformed expert will not be a persuasive trial witness.
Counsel should make fact witnesses available for the expert to
interview, including a request to interview opposing parties where necessary.
Where a valuation is necessary, a visit to the plant or business location is
important. The more detached the expert is from the facts, the less reliable
her/his opinions may be.
Counsel should ensure that draft reports are sent to her/him only. If draft
reports are sent to the client, litigation privilege will not protect the draft
report from disclosure if counsel decides not to serve this expert’s report.
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34. Counsel’s role in the content of the expert’s report #2
Title
Counsel should propose corrections to statements of fact and typographical
errors to the expert.
Counsel may also review the assumptions and discuss with the expert how
they affect the expert’s opinion. Are the assumptions correct? Will all the
assumptions be proved at trial?
The expert could be cross-examined about discussions with counsel and the
client. If either counsel or the client tried to sway the expert’s opinion, it
could affect the expert’s independence.
Counsel may question the reasonableness of expert’s methodology but the
opinions in the expert report must always be the expert’s alone.
If an expert accepts counsel’s instructions to give opinions which came from
counsel, the expert’s independence is compromised and counsel is
breaching his duty of integrity to the court and to the opposing party.
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35. Table of References
Title
35
E. Arnold & E. Soriano, The Recent Evolution of Expert Evidence in Selected Common Law
Jurisdictions Around the World, http://goo.gl/blTli
D. Debenham, The Forensic Accountant’s Guide to the Law of Privilege: What To Do When
a Fraudster Claims Privilege, http://goo.gl/0rMRx
J. Dunitz, Daubert in the Realm of Financial Damages Experts, 2011 Insights
36, http://goo.gl/ZC6JZ
T. Dunkelberger & C. Arthur, Best Practices in Finding and Qualifying Expert
Witnesses, http://goo.gl/cLCFO
A. Dwyer, New Study Examines Daubert Challenges to Financial
Experts, http://goo.gl/Bij34
I. Ellyn and V. Pileggi, Cross-examining the Forensic Accountant, http://goo.gl/2eUAo
D. Goodman, Choosing the Financial Expert Witness, http://goo.gl/ZDVTO
J. Gray, Why judges like hot-tubbing, Globe & Mail, http://goo.gl/6PVPa
B.J. Holliday, Court Rules Amendments related to Concurrent Expert Evidence and “Hottubbing” of Experts, http://goo.gl/xsjgl
M. Knight, "Hot-Tubbing' - A Useful Method of Obtaining Expert Evidence" [2006]
AUConstrLawNlr 81; (2006) http://goo.gl/gGZbi
J. Melnitizer, Experts to share hot tub at Ontario Energy Board, National
Post, http://goo.gl/xgiYl
PricewaterhouseCoopers, Daubert Challenges to Financial Experts: An 11-year study of
trends and outcomes, 2011 http://goo.gl/9p4MZ
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36. Table of Rules and Cases
Title
36
IBA Rules on the Taking of Evidence in International Arbitration Revised http://goo.gl/bKJj4
Ontario Rules of Civil Procedure, 4.1, 36.01, 50.07 (1)(c), 52.03, 53.03 , 20.05(2)(k) http://goo.gl/HsjUL
UNCITRAL Arbitration Rules http://goo.gl/sCfaU
820823 Ontario Ltd. v. Kagan, 2003 CanLII 24295 (ON SC).
Alfano v. Piersanti, 2012 ONCA 297
Apotex Inc. v. Astrazeneca Canada Inc., 2012 FC 559
Ault v. Canada (A-G), 2007 CanLII 55358 (ON SC)
Conceicao Farms Inc. v. Zeneca Corp., 2006 CanLII 25345 (ON CA)
Continental v. J.J.’s Hospitality, 2012 ONSC 1751
Cowles v. Balac, (2006) 83 O.R. (3d) 660 (C.A.)
Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993)
Deemar v. College of Veterinarians of Ontario, 2008 ONCA 600
Gallant v. Brake-Patten, 2012 NLCA 23
General Electric Co. v. Joiner , 78 F. 3d 524 (1997)
Henderson v. Risi, 2012 ONSC 3459
Kumho Tire Co. v. Carmichael 131 F. 3d 1433 (1999)
Prosperine v. Ottawa-Carleton et al. (2002) 37 CBR(4th)135 aff ’d (2003) 8 CBR(5th) 26
R. v. Abbey, 2009 ONCA 624
R. v. Bryan, 2003 CanLII 24337 (ON CA)
R. v. Burns, 1994 CanLII 127 (SCC),
R. v. D.D., 2000 SCC 43,
R. v. J-LJ, 2000 SCC 51
R. v. Marquard, 1993 CanLII 37 (SCC)
R. v. Mohan, 1994 CanLII 80 (SCC)
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37. Conclusion
Title
Financial expert evidence has become the norm in business litigation.
The concepts applicable to expert financial evidence are simple enough:
The judge is the gatekeeper, who must ensure that opinions of proferred
experts meet certain criteria before the expert opinions are considered
admissible and persuasive. The criteria are:
Expert financial evidence must be given by independent, qualified
witnesses whose opinions are, necessary, reliable and relevant;
Specific time and documentary requirements must be fulfilled.
The assumptions on which the expert’s opinions are based must be
proved by fact witnesses.
Implementation of these concepts is much more complicated. How well
counsel and expert do this will affect the outcome of your client’s case.
Thank you for your attention.
Igor Ellyn
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