Tax Court Of Canada Limits Shopping For Expert Witnesses: Aecon Construction Group Inc. v. The Queen

In his recent decision in Aecon Construction Group Inc. v. The Queen, Justice Angers of the Tax Court of Canada adopted a practical and sensible approach to the problem of an expert witness potentially being conflicted out of a tax appeal because of having been approached by one of the parties which then decides not to commission a report from that expert.

In Aecon, the disputed turned on the fair market value of mining properties in 1993. The taxpayer contended that the value was $32 million while the Crown contended that the value was $3 million. The taxpayer relied on two expert reports. The Crown originally relied upon one expert report. Prior to trial Crown counsel approached two other experts, Mr. F and Mr. R, both of whom had already been approached by the taxpayer. The Crown wrote counsel for the taxpayer taking the position that the taxpayer's limited contact with Mr. F should not disqualify him from acting for the Crown in the tax appeal. The taxpayer's counsel took the position that both Mr. F and Mr. R were disqualified and the Crown took this motion in the Tax Court to have the status of Mr. F determined in advance of trial.

Justice Angers quoted the famous statement of Lord Denning in Harmony Shipping Co SA v. Davis et al. as reproduced by Justice O'Keefe of the Federal Court in Abbott Laboratories v. Canada (Minister of Health), 2006 F.C. 340.

[20] Accordingly, the principles require that the Court balance the interests of the party seeking to retain an expert witness and the party seeking to protect its confidential information. In that regard, counsel for Pharmascience raises the danger of expert witnesses being contacted simply to deprive an opposing party of their expertise. This danger was eloquently described by Lord Denning in Harmony Shipping Co SA v. Davis et al, [1979] 3 All ER 177 (C.A.):

If an expert could have his hands tied by being instructed by one side, it would be very easy for a rich client to consult each of the acknowledged experts in the field. Each expert might give an opinion adverse to the rich man, yet the rich man could say to each, "Your mouth is closed and you cannot give evidence in court against me" ..... Does that mean that the other side is debarred from getting the help of any expert evidence because all the experts have been taken up by the other side? The answer is clearly No .... There is no property in an expert witness as to the fact he has observed and his own independent opinion of...