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The Expert Witness His or Her Role and Responsibilities at Assessment and Valuation Hearings Jack A. Walker, Q.C. Osgoode-IPTI Expert Evidence Certificate Osgoode Hall P.D., Toronto October 31, 2011
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The Expert WitnessHis or Her Role and Responsibilities at Assessment and Valuation Hearings
Jack A. Walker, Q.C.
Osgoode-IPTI Expert Evidence Certificate
Osgoode Hall P.D., Toronto
October 31, 2011
1. Culture of the Assessment Profession
a) Appellant
• Historically, the consultant controlled the process
• Appellant’s consultant instituted the appeal process
• Appellant’s consultant negotiated with the assessor
• Appellant’s consultant appeared as advocate
• Appellant’s consultant appeared as expert witness
2007 – Law Society introduced paralegal provisions
Intention:
• Control the consultants providing legal services by making
them subject to Rules of Professional conduct
• Prevent paralegals from appearing as an expert witness
Practical Effect:
• Large number of consultants became paralegals
• Has there been a change in the culture? – realistically No
b) Assessing Authority
• Employees place the assessment on the roll,
negotiate with the appellant, appear as advocate
and expert witness
• Not subject to the provisions of the Law Society
Act
• Still negotiate and appear as expert witness
c) Assessment Review Board
• Until 1990’s never even qualified witnesses as expert witnesses
• Thereafter the ARB qualified the individual as an expert
witness without limiting area of expertise
• Next step the ARB holds a “voir dire” to determine
whether witness was qualified and defined the area of expertise
• Now the ARB is questioning the witness as to bias,
independence, objectivity and commencing to implement
the Rules of Civil Procedure to the qualification process
• The question of necessity and relevance of the evidence is tied into the area of expertise of the ARB
d) Why do we Require a Expert Witness at the ARB
• Jurisprudence establishes expertise of ARB as “expert in valuation of real estates and property taxes”
• Does the expert panel require an expert witness to
inform the panel of the conclusion that it is mandated to
reach
• Issue: Question of whether Board acting in an
Administrative or Judicial capacity.
If latter then Board requires evidence upon which to
base its Decision. Marathon Realty v. RAC #7 [1979] O.J. No. 1090
2. Rules of Practice of the Courts and Tribunals and Jurisprudence
• Now we are dealing with the Cluster Board – 5 land tribunals each has its own
set of Rules but a universal set of rules will probably be forthcoming
• Ontario Assessment Legislation (“OAL” p. 733)
• ARB Rules of Practice and Procedure, s.4, (OAL p.200)
• Rules of Civil Procedure provide (R.4.1.01) (OAL p.733):
1. Expert evidence to be “fair, objective and non-partisan”
2. Expert evidence to be “related to areas within expert’s area of expertise”
3. Expert to provide additional assistance as the court may reasonably
require to determine a matter in issue
3) Rules of Practice (53.03) Provide for contents of experts report, (OAL p.745)
1. Qualifications and area of expertise
2. Instructions to the expert
3. Nature of the opinion sought
4. Issue to which opinion relates
5. Opinion re: each issue
6. Includes factual basis for the opinion, research conducted
7. List of every document relied upon
4) Expert must acknowledge his or her duty in writing
• Rules of Practice, Form 53, (OAL p.745)
• How do new rules impact on the culture.
Jurisprudence• ARB in accordance with its Rules of Procedure Rule 4 (OAL p. 200)
moving towards implementing Rules of Civil Procedure
• Recent Cases
Clublink v. MPAC and the City of Oakville
• Experts have acknowledged their obligation and attached certificate
• Board member has referred to Rules of Practice in rejecting evidence of an
expert witness
• Simcoe Residence Corp. v. MPAC and the City of Toronto [2010] O.A.R.B.
No. 706
• Questions are being asked about standards (U.S.A.P, C.U.S.P.A.P.) and
requirements (Rule 53.03)
BOTTOM LINE
• Acknowledge and understand that the “expert witness” is
NOT a MEMBER OF THE TEAM
• Significance:
- Cannot participate in team “strategy” meetings
- Must author his or her report and disclose in the
report other contributors and their role
- Question as to whether report can be edited and
vetted by advisers
Role is solely to assist tribunal not to put forward the
position of the client
Is this possible?
In context of the culture of the
assessment profession or does the
practice have to be adjusted to
recognize that culture
What about standards in reporting and codes of ethics?
• Both eminate from
Professional Organizations
Or
Professions
i.e. - LSUC
- AIC
- USPAP
• Raises two questions
1. Is there an assessment profession?
2. If not, are there applicable standards and ethics to those involved?
•
• Member of a vocation founded upon
specialized educational training
• Characteristics include high quality work,
high standard of professional ethics,
constant upgrading
Appraiser – one who is expected to perform
valuation services competently and in a
manner that is independent, impartial and
objective
The purpose of U.S.P.A.P is to promote and
maintain a high level of public trust in
appraisal practice by establishing
requirements for appraisers U.S.P.A.P.
reflects the current standards of the
appraisal profession.
• Discipline regulation
• Reliance by members of society
• Right to earn substantial rewards
• Privilege = Responsibility
Standards
Code of ethics = Rules of coduct
Self Imposed and 3rd Party Imposition
Morality Code of Ethics
• Basically revolve around responsibilities to the
profession, the public, and the society in general
• Six C’s
1. Competency
2. Confidentiality
3. Conflicts of Interest
4. Contingency
5. Conduct
6. Continued Education
Enhancing Creditability
Benjamin Franklin: “Expensive china, glass and reputation crack easily but
very seldom can be repaired”
• Reputation and credibility must be protected
Why: Once profession and judiciary lose respect then have serious issues
restoring it
Why Constantly ask “were you the same individual that gave evidence in
_____________ case.