Law Times

Law TiMes • March 19, 2012 COMMENT PAGE 7 A s the so-called education premier of Ontario, Dalton McGuinty needs to school Ontario's teachers in the realities of politics. His request is simple enough. He wants them to share the pain of the needed cuts to spending through a freeze on wages and a change to the sick-day plan that allows them to bank time. Th e teachers want a meeting to talk. Mc- Guinty declined because there's no room for discussion. Th e issue, however, sets the stage for a showdown with a group that passion- ately supported McGuinty in the last elec- tion. Will the teachers be smart and stand by their man or will they turn their backs and teach McGuinty a harsh lesson in politics? Teachers argue their salaries and benefi ts refl ect changes in the demands on them and vow they're not giving back without a fi ght. Certainly, teachers' roles have changed as Ontario Court Justice Marvin Zuker knows all too well because for the past 30 years, he's had a ringside seat. Zuker, who sits in the North York family court and penned the Ontario Small Claims Court Practice refer- ence, somehow also found time to teach at the Ontario Institute for Studies in Education for the last three decades. He schools new teachers as well as those in continuing education programs on the in- tricacies of the law as it relates to their jobs. In between that, he has knocked out a couple of books on the subject, most re- cently Inspiring Th e Future: A New Teacher's Guide To the Law, that he co-wrote with OISE pro- fessor Nick Scarfo. Teachers have greater re- sponsibilities under diff erent pieces of leg- islation and need to understand them, he says. From the Education Act to the Youth Criminal Justice Act to dealing with Face- book and cyber bullying, there are a host of challenges teachers face that they're for the most part unprepared for. Th e book is necessary, the authors as- sert in the foreword, because "most teach- ers are uninformed or misinformed about the law." "I think I've taught something like 2,000 students over the years," says Zuker. "Today, I teach three diff erent courses, one a semester. Queen's Park Th ings really have changed. Back then, there weren't lawyers who practise in education law; today there are specialists." Among teachers' responsi- Ian Harvey bilities to their profession, one is to stay current. One of the things former premier Mike Harris' government got right, according to Zuker, was bringing in man- datory continuing education for teachers. Th e Liberals, however, repealed it. Zuker feels strongly that teachers need to follow other professions in updating their education continually, especially in the area of the law because it touches on their work more than ever. Like other professions, the system should hold teachers to high standards, says Zuker. He's also concerned that the existing rules under the Ontario College of Teachers Act don't cover many private schools. Still, Zuker is hopeful about the results of former Superior Court chief justice Patrick LeSage's review of the college's investigative and disciplinary procedures and outcomes. In the meantime, Scarfo and Zuker aim Expert disclosure: BY OLIVIER GUILLAUME For Law Times T he advent of the revised Rules of Civil Procedure that became eff ective on Jan. 1, 2010, has formalized what the courts require with respect to expert reports and related doc- Pushing the envelope and the "me, too" principle u SPEAKER'S CORNER uments in advance of hearing expert testimony at trial. Supposedly new rules such as Rule 4.1.01 embody the notion that experts' duties are towards the court and not the parties that engage them. Rule 53.03(2.1) for- malizes the mandatory component of disclosure with respect to expert reports. It includes the notion that an expert's report must disclose instructions given to an expert, the factual assumptions made, and the research done. But the rules appear to have sparked an even higher level of disclosure by the court. For example, in the unreported March 2011 decision of Perks v. 1326111 Ontario Ltd. o/a Steel Tile Co., the plaintiff brought an action for damages to his home aris- ing from mould contamination from the alleged faulty installation of a steel tile roof on his home. Th e plaintiff 's affi davit of documents contained a supposedly expert re- port and a resume from his proposed witness. Th e plaintiff 's proposed expert indicated he had "act- ed as an expert witness in more than 25 mould-related litigations with testimony given in the U.S. and Canada." At the plaintiff 's discovery, the defendant requested dis- closure of court fi les, decisions, and dates when the pro- posed expert had previously testifi ed at trial. Aſt er the plaintiff refused to provide that information, the court heard a motion in March 2011 dealing with the plain- tiff 's undertakings and refusals. At the motion, Master Linda Abrams had to decide on what was a likely novel point: the disclosure at the discovery stage of an expert's courtroom experience. Th e defendant provided evidence to the court that searches of three Internet-based case law databases dis- closed only one decision where the expert had testifi ed at trial. Th e defendant provided further evidence that it wouldn't be practical, effi cient or possible to obtain in- formation on the other cases where the plaintiff 's pro- posed expert apparently testifi ed in court without doing a very diffi cult search of all of the courthouses through- out Canada and the United States. One can only imagine how many courthouses there are in the United States, a country with a population of more than 312 million. Although counsel for the plaintiff had refused to provide the requested expert information all the way up until the date of the hearing, his lawyer requested in his oral submissions that the court, if it were inclined to grant the defendant's request, do the same for the plaintiff . I refer to this as the "me, too" principle. But in a likely unprecedented move, Abrams ordered that the plaintiff answer the refusal and have his expert disclose the court fi les, decisions, and dates when he had previ- ously testifi ed at trial. Given that this was a rather un- usual request at this stage of the proceedings, Abrams also ordered that the defendant do the same. Two potential issues arise from this decision. First, some lawyers may feel uncomfortable disclosing this in- formation at the discovery stage. Second, should a party who has refused to provide information be allowed to obtain it from the opponent when he hasn't requested it during the other side's examination for discovery and had refused to hand it over during the opposing party's examination for discovery? On the fi rst point, the reality is that an expert is there to assist the court. Accordingly, any information that the court requires to consider an expert's impartiality and prior experience can only be benefi cial to both the court and the parties. Waiting until trial for an opposing party to be able to learn about an expert's prior court ap- pearances seems unfair given that the witness may not be able to provide the required information or even the requested documentation. For example, in Perks, the plaintiff 's expert claimed he had testifi ed more than 25 times in courts through- out Canada and the United States. It would likely be very diffi cult for the expert to recall and provide infor- mation on those 25 cases if the opposing party were to cross-examine him at trial. By granting the opportunity to the defendant to learn about details of the prior court testimonies at the discovery stage, Abrams enabled it to potentially ascertain and discover relevant information, including whether the expert had testifi ed on behalf of www.lawtimesnews.com plaintiff s only and whether he had shown openness and taken an even-handed approach from one case to the other. All of this information would be use- ful to the court at trial to assess that expert's quali- fi cations and impartiality and could likely not have been available if Abrams hadn't ordered the plaintiff to have his expert disclose the court fi les, decisions, and dates when he had previously testifi ed at trial at the dis- covery stage. Th ere appears to be little to no downside, then, to forcing parties at the discovery stage to provide infor- mation about their respective experts' previous expe- riences in court. Th is takes us to the second point and what I refer to as the "me, too" principle. One of the hallmarks of what separates a great ex- amination for discovery from a good one is the ques- tions the opposing lawyers ask the other party. During the motion in Perks, the plaintiff 's lawyer ended up ask- ing the court to obtain the same relief as the defendant sought with respect to the discovery refusals related to expert disclosure. Abrams granted the request from the plaintiff 's lawyer. Th e one concern I have with this deci- sion relates to the notion that a party doesn't even need to ask proper questions at the opposite party's examina- tion for discovery if it can simply request and obtain whatever relief the court grants to the opposing side. In fact, the plaintiff in Perks could have technically elected not to conduct the defendant's examination for discovery but still obtained information that he could likely get only via the discovery process. Presumably, if one party decides to refuse to provide certain informa- tion to the other side, it shouldn't be able to ask the court to obtain it through a motion. Th at being said, it's important to point out that in her decision in Perks, Abrams noted that "the information is not of the type typically disclosed at this stage of the proceedings" when she elected to provide the same relief to the plaintiff . Th is seems to indicate that courts won't regularly allow a party to seek the same "me, too" type of relief in such a scenario. LT Olivier Guillaume is a partner at Borden Ladner Ger- vais LLP. His practice mainly includes insurance defence work involving motor vehicle accidents, slip-and-fall inci- dents, and long-term disability, product liability, and prop- erty damage claims. to raise the level of teachers' legal literacy. Certainly, teachers have been in the spotlight on that score lately with a string of child abuse allegations in California and the overreaction by police in Kitchener, Ont., who arrested, searched, and jailed a man af- ter his daughter innocently drew a picture of him with a gun. While it's true that the system over- worked teachers, paid them too little, and didn't appreciate them enough for many years, I think that guilt trip is now stale. Now more than ever, teachers are well paid as professionals who have an extraordinary variety of benefi ts and perks that more than compensate them for their education, skills, and experience. Th ey have a responsibility to the com- munity, students, and their profession and they should also be smart enough to stand by their man and work with him to get the fi scal books in order. In this case, paying back is about paying LT it forward. Ian Harvey has been a journalist for 34 years writing about a diverse range of issues including legal and political aff airs. His e-mail address is ianharvey@rogers.com. T eachers should heed harsh realities While law has made the job more complex, fiscal concerns paramount

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