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November 6, 2017

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Law Times • November 6, 2017 Page 3 www.lawtimesnews.com Lawyer's claim against expert witnesses tossed BY ALEX ROBINSON Law Times T he Ontario Divisional Court has upheld the dismissal of a law- yer's defamation claim against a handwriting expert. In Deverett Law Offices v. Pitney, lawyer Michael Dever- ett's firm brought a claim against Linda Pitney — a handwriting analyst hired by a former client — accusing her of negligent and fraudulent misrepresentation. Lawyers say the Divisional Court's decision to dismiss De- verett's appeal confirms expert witnesses cannot be sued. "If it were a proceeding, there would be an absolute immunity for the witness, and it seems to me that the court is just carry- ing that forward in this respect," says Gavin Tighe, a partner with Gardiner Roberts LLP, who was not involved in the case. "There is no cause of action against a witness." Deverett had been represent- ing a client in a family law matter when she decided she no longer wanted the lawyer to represent her at the end of 2010. When the client let Deverett know, he forwarded the neces- sary form, called a Notice of In- tention to Act in Person, to her, which was signed and returned. He then signed the form and filed it with the court. But almost a year later, he received a report submitted by an "L. Powers" — Pitney's alias — saying that the NOIP had not been signed by the former client. Deverett also received a let- ter the same day, reportedly from the client, accusing him of breach of trust and forgery. A month later, he received another letter from her with three bills totalling more than $100,000, asking him to pay them in light of the report. The lawyer then hired his own expert, who concluded the client had signed the NOIP and that Pitney's qualifications could not be substantiated. Deverett filed his claim against Pitney for negligent and fraudulent mis- representation. He argued that Pitney's report accused him of forgery. A Small Claims Court dep- uty judge dismissed the claim, finding the evidence was not sufficient to create a "cause and effect" between Pitney's opinion in the report and the purported accusations of forgery and at- tempted blackmail. The judge also found there was no basis for punitive dam- ages because there was not suf- ficient evidence that the report was written maliciously and De- verett had not suffered any dam- ages. The trial judge determined that the claim should have been brought against the former cli- ent, if anyone. Michael Fenrick, a partner with Paliare Roland Rosenberg Rothstein LLP, speaking gener- ally, says legitimate experts do not have to be concerned about defamation claims as long as they are not acting maliciously, as their reports would be cov- ered by qualified privilege. "It does seem to me that the Divisional Court was correct in that the proper defendant was the former client, and it's unclear to me why the plaintiff in this case went after the purported expert," says Fenrick, who was not involved in the case. In his appeal, Deverett ar- gued a number of issues, includ- ing that the trial judge had failed to review Pitney's qualifications and failed to draw a reasonable inference from the defendant's use of a false name on the report. The Divisional Court, how- ever, dismissed Deverett's ap- peal, as the trial judge had not erred in the decision. Superior Court Justice Laurence Pattillo found the trial judge was en- titled to conclude that the evi- dence was not sufficient to cre- ate a causal connection between Pitney's report and the purport- ed accusations of forgery and blackmail. Pattillo also found that Pit- ney's qualifications were irrele- vant to the decision as the judge's reasons "focused on the defen- dant's liability in respect of the report given" the client's actions. The Divisional Court deter- mined that the trial judge did not need to draw any inference that Pitney's use of a false name on the report meant she had something to hide, as it was not relevant to the claim. The court also upheld $500 in costs that had been awarded against Deverett and ordered him to pay a further $500 for the cost of the appeal. Matt Maurer, a lawyer with Minden Gross LLP, who was not involved in the case, says experts typically don't get sued for their opinion. "If someone doesn't like the opinion, the recourse is to get your own expert, prove the op- posite and that's the end of it," he says. Pitney, who was self- represented, says she has been doing forensic handwriting examination work for more than 30 years and this was the first time a lawyer sued her. She says if suing experts becomes a common occurrence, it would send shockwaves through the expert community. "How can a person give tes- timony on any kind of opin- ion evidence such as psychol- ogy, psychiatry [or] handwriting analysis?" she says. "These are not perfect sciences." She adds that anyone could have signed the document, and that she never accused Deverett of forging the client's signature. Pitney says she is now waiting to see if Deverett will seek leave to appeal the decision. Tighe says one of the main takeaways for lawyers from the decision is that they should be careful to terminate retainers with clients as pleasantly as pos- sible, as the dispute f lowed from the cancellation of a retainer in 2010. Deverett declined to com- ment on the decision. LT NEWS Gavin Tighe says there is no cause of action against expert witnesses. 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