Mod 3 - CBV as an Expert Flashcards
(40 cards)
In the role of an expert witness, what to characteristics are paramount?
1) Objectivity
2) Impartiality
With regards to Valuator Bias, who do the courts see the opinion of a professional valuator?
1) Bias goes to weight, not admissibility. Put another way, the courts will consider the amount of bias the valuator has in the situation before determining how much weight should be placed on the accuracy of the report.
2) Bias means lack of objectivity.
The goal is to gain opinions from the expert that the courts could not arrive to on their own, however, it is believed that no party can be 100% neutral, as they are engaged by a party to offer an opinion to support the advocate of the party.
Common ways that bias can arise
1) a pre-existing relationship with a client (if payment is excessive or based upon a particular result)
2) the terms of the engagement, including payment of a fee, adopting facts and assumptions without sufficient analysis
3) Advocating a particular position such as one that was authored in a textbook by the expert.
Types and levels of Provincial Court System
1) Provincial and Territorial - have unlimited jurisdiction and unlimited power to adjudicate disputes including federal and provincial law (they are able to administer civil law in Canada, even though set out by feds). Each Province has a Superior Court.
2) Appellate Courts - hears appeals from the Superior Courts and sometimes administrative tribunals.
3) Country or District Courts - some provinces have these, whose jurisdiction is typically limited to a specified geographical area within the province and has jurisdiction over subject matters similar to that of the Superior Court.
Types and Levels of the Federal Court System
Supreme Court of Canada - is the highest court of appeal for all of Canada. It hears appeals from other courts of appeal of all provinces and territories, and from the Federal Court of Appeal.
Federal Court of Canada - Limited jurisdiction, governing
1) intellectual property
2) patents
3) trademarks
4) copyright
5) claims against the federal government
Administrative Tribunals
Both federal and provincial jurisdictions have a set of administrative tribunals that handle specialized matters.
Commons examples in ONT include:
1) Land Compensation Board - deals with expropriation claims, including claims of loss of business profit and relocation expenses.
2) Workplace Safety and Insurance Board - hears disputes with respect to Ontario Workplace and Safety Insurance Act. It makes decisions on claims, assessments, and the enforcement of the regulations.
3) Environmental Appeal Board - hears appeals from administrative decisions related to environmental issues.
Common examples of Federal tribunals include:
1) Canadian Radio and Television Commission - regulates matters relating to all forms of electronic communication, including radio, TV, and telephone communications.
2) Competition Tribunal - investigates and regulates matters covered by the Canadian Competition Act, including mergers, misleading advertising, and anti-competitive practices.
3) Canada Industrial Relations Board - investigates and regulates labour matters involving corporations that are subject to the laws of the Federal Parliament (for example, Canada Post of Air Canada).
The core steps of the litigation process
1) Pleadings
2) Affidavit of Documents
3) Examination for Discovery
4) Interlocutory Motions
5) The Trial
6) Judgement
7) Appeals
Pleadings Process (Step 1 of litigation process)
Pleadings (are the official documentation that is served on the opposing party and filed with the court, used to define issues in dispute and provide notice t othe opposing part of the claim.)
Three components of Pleadings include:
1) Statement of Claim - plaintiff files statement of claim, including name of plaintiff, name of defendant, facts alleged by plaintiff in support of claim (relationship, reference to applicant agreements/contracts, material facts that give rise to claim, sought after remedy). Document is provided to the court and defendant. The defendant can then pay the remedy, contest in whole, or contest in part.
- Valuator can help ensure the description of the damages claimed is adequately set out and quantified.
2) Statement of Defence - if defendant contests claim, they are to file a statement of Defence and serve it to plaintiff and file with court.
Statement of Defence will include:
a) Admit to those facts alleged in statement of claim that are true.
b) Deny those facts alleged in the statement of claim that the defendant claims are false.
c) Identify those facts alleged that the defendant has no knowledge.
*CBV can assist in the preparation of defence by identifying damage-related issues and assessing the validity and quantum of the plaintiffs damages claims.
3) Reply
In response to Statement of Defence, the plaintiff can reply with additional facts that were not set out in the Statement of claim, which will be relied upon in the proceeding.
4) Other Pleadings - in complex disputes other types of pleadings may be made allowable by the courts:
Counter-claim - where the defendant defends the claim and also assets its own claim against the plaintiff
Cross-claim - where there are multiple defendants and one of the co-defendants assets a claim against a co-defendant that arises out of the plaintiff’s claim.
Third party claim - defendant assets a claim against a third party who the defendant alleges is responsible for the damages claimed by the plaintiff.
Statement of agreed facts - a list of various facts that both parties agree too, such as names of those involved, date of occurrence, ect.
Affidavit of Documents (Step 2 of litigation process)
Develop and provide a list of documents in each party’s possession, control, or power that are relevant to the issues in the action as defined by the pleadings. One the list is provided, each party must swear an affidavit, verifying that all relevant documents are listed. All documents in possession must be listed, even if not in party’s best interest. (exceptions to this rule include confidential info between party and counsel protected by solicitor/client privilege, documents prepared by client/counsel/CBV in contemplation of the litigation that are protected by litigation privilege, and communications between opposing parties made on a “without prejudice” basis that are made for the purpose of attempting to settle the litigation).
“document” includes all paper documents, electronic documents, emails, video, and audio recordings.
This documents must all be made available to opposing party for inspection and copying. This is referred to as Production of Documents.
*CBVs can assist in identifying documents that are particular relevance to the quantification of damages, and in assisting the lawyer in understanding those documents.
Examination for Discover (Step 3 of litigation process)
enables a party to a civil action to examine another person orally and before trial to obtain relevant facts to the claim.
The scope of the examination is broad, but the right to examine a witness before trial is restricted in most Canadian jurisdictions.
Interlocutory Motions (Step 4 of litigation process)
a written notice by defending party that they disagree that the statement of claim disclosed a valid cause for the claim or the opposing party has not sufficiently discharged its obligation to disclose all relevant documents. ie, trying to get the case stopped before going to trial.
The court will look to resolve the dispute in the interlocutory motion, determining if the claim will proceed to trial of be actioned in a different way.
Trial (Step 5 of litigation process)
Focus of trial is to resolve outstanding factual and legal disputes that were not resolved during discovery and interlocutory motions.
The plaintiff will present evidence of fact to prove their claim.
The defendant may introduce evidence intended to disprove or diminish the plaintiffs claims.
All facts not admitted by opposing parties before hand must be established at trail by witnesses testimony and/or documentary evidence.
Judgement (Step 6 of litigation process)
Just will render their judgement following trial, and will typically issue written reasons for their decision. If the plaintiff is successful, they will be awarded damages in a specified amount, which may include interest on damages and costs (including expert costs).
Appeals (Step 7 of litigation process)
The party may appeal a judgement to the court of appeal of the province in which the action was commenced.
Appellate courts do not typically overturn findings of original court, unless the original judge made a “palpable and overriding error in assessing the facts”.
Who is the burden of proof on?
Burden of prrof falls on the plaintiff to prove the damages were caused by the defendants wrongful actions and to prove the quantum of damages it claims was caused by defendant’s wrongdoing.
Facts can be proven in a number of ways, including:
1) admissions in pleadings
2) oral testimony
3) documents
4) circumstantial evidence (suggestive evidence, like a fingerprint implying someone was at the scene)
5) demonstrative evidence (factual material, such as an x-ray, video tape, sound recording)
What is an Alternative Dispute Resolution, the three classes of ADR and 5 types that can be used.
Due to the time and cost of going through tranditional court system, most cases are solved through ADRs. Some jurisdictions require that parties go through mediation process prior to making claim through the courts.
1) Informative - parties rely on third party to seek out information and bring it back to them for consideration (valuation of a business by a neutral expert)
2) Consensual (mediation) - use of a third party to come to a conclusion, for which the parties have the right to accept or reject an outcome.
3) Adjudicative (arbitration) - parties delegate decision-making power to a mutually agreeable third party and agree in advance to accept the decision as the resolution of their dispute.
Types of common ADRs:
1) Negotiations
2) Mediation
3) Mini-trial
4) Arbitration
5) Neutral Case Evaluation
ADR: Negotiation
1) Negotiation - parties try to find a resolution themselves. CBV can act as a member of one of the negotiation parties by preparing a report to aid in their argument, or, to negotiate with opposing team’s financial experts to agree on key facts, such as the quantum of damages.
ADR: Mediation
2) Mediation - Third party works with the opposing parties to come to a solutions. CBVs can be involved as a neutral expert, a member of one negotiating party, or jointly retained whose job is to inform both parties and mediator.
Adv of Mediation:
- Mediator can reduce risk associated with candid negotiations through use of confidential without prejudice discussions, allowing for parties to find common ground.
- They can help craft creative solutions through problem solving methods.
- Parties behave more civil and present cases more rationally when using a mediator, that than be driven by emotions.
- Mediators are experienced and can assisted in procedural and substantive solutions for negotiations.
- Mediators can assess the progress and recommend alternative ADR strategies, such as a neutral evaluation, mini-trail, non-binding arbitration, or binding arbitration.
- CBVs often play a role of “Fact Finder” in mediation cases. This can include basic facts (number of customers lost to a patent infringment), or an analysis of these facts (number of customers lost to the global market for each of the fiscal years concerned). From here the CBV can issue a report offering recommendations on how the matter can be settled or what they can do to prevent it from happening again.
ADR: Mini-trial
3) Mini-trail - a form of Mediation where both counsels from each side presents a summary of its case to a panel of decision-makers. This is followed by direct negotiations by the panel to come to a solution recommendation.
** A CBV may be a panel member, bringing an objective stance and expertise to the group. Or, the CBV can represent one of the parties, to clearly present specialized material to the panel.
ADR: Arbitration
4) Arbitration - Arbitration is often used where there is a need for specialized knowledge to truly understand the dispute and its key facts. Very similar to court proceedings, in that the decision is in the hands of the arbitrator, not the parties. However, this is often preferred as it is much more timely, cost effective, and typically handled privately, allowing the parties to keep the dispute and the decision confidential.
To initiate the arbitration process, both parties must agree to go to arbitration (if one party does not agree, then a statement of claim must be filed by one party through the court system). Once the process has started, both parties must agree to end the process.
Common matters include Breach of Contract, Partnership dissolutions, dissenting shareholder suits, divorce proceedings, interpretation of SHA.
Arbitration panel is typially 1 or 3 people. If 1, both parties must agree. If 3, each party chooses one and the two selected arbitrators choose a third. Typically the two chosen are specialized experts (CBV, engineer, ect) and the third is someone familiar with trial process.
*** CBVs can be members of the panel or be engaged by the panel or one of the parties to present a report to the panel.
Adv of Arbitration
- Both parties select arbitrator, making it technically fair and unbiased.
- Less time and much less expensive.
- Because the panel should be experts, less chance of unfair or extreme result. Unlike trial, where judge may not have the technical ability needed for an accurate decision.
- Can be kept confidential.
Procedure of accepting an Arbitration Assignment
1) Obtain a statement of the matter in dispute, the amount of money involved, and the remedy sought.
2) make all necessary fee arrangements (retainer, advance, estimate, etc.) and ensure that payment is inline with CICBV standards to ensure independence.
3) Following the initial meeting, CBV is to disclose any circumstances that may affect his/her impartiality, including and bias. Following this, the parties will determine if the proposal and use of the CBV is acceptable or not.
4) if yes, collect the deposit and begin the process.
Neutral Case Evaluation
NCE is when a CBV provides a valuation report on the value of a business at a predetermined fate in a dispute between a buyer and a seller of a business. It is not intended to make a determine of price, but rather to aid in the deliberations. If the dispute escalates to arbitration or trial, the valuation report may be filed.
Three requirements of the Judicial system with regards to an Expert
1) the proceeding be conducted in an impartial manner.
- the expert must not become an advocate
2) the proceeding be conducted fairly
- Adjudicator will ensure the expert’s influence over the proceedings is limited by the boundaries of fairness in weighing the experts evidence against the evidence of all other witnesses. Findings may even be re-worked by the adjudicator in order to arrive at fair outcome.
3) The expert’s experience and knowledge
- expert’s are to be used when the material at hand is outside of the experience and knowledge of a judge or jury.
Difference between fact witnesses and opinion witnesses.
Fact witness: someone who is eligible to provide evidence who had direct involvement with the matter at hand (ie. victim of a theft). They cannot speak to anything except their direct experience (not able to say what they heard from others, ect).
Opinion witness: are witnesses that have no direct involvement with the matter at hand and must be independent. This have the ability to draw on non-directly involved facts from the matter at hand, such as statistical information from third parties, comparable situations from other companies (comparable market transactions), and they are able to simply provide an opinion based on their expertise.
