The more complex our world has become, the more likely it is
\nthat litigation will involve expert evidence. Many family law cases
\nrequire the expert testimony of psychologists or social workers who
\nmake recommendations on what is in a child’s best
\ninterests.<\/p>\n
Other experts appearing frequently in the family courts include
\nreal estate appraisers and chartered business valuators, who
\ntestify about the value of shares in private companies and income
\nfor support purposes.<\/p>\n
Some years ago, judges began to express concern about the
\nindependence of the experts appearing before them: some experts
\nwere perceived as being simply another advocate in the courtroom,
\nrather than providing a balanced opinion for the court’s
\nconsideration.<\/p>\n
As a result, the rules governing experts changed. Experts giving
\nevidence in an Ontario court are now obliged to sign an
\nacknowledgement that confirms that they are aware of their
\nobligation to be independent, with their obligation being to the
\ncourt, and not to the party who retained them.<\/p>\n
Despite this change, Justice Ruth Mesbur of the Ontario Superior
The case was a lengthy family law dispute over millions of
Despite the details of the marriage breakdown, Justice Mesbur
The family law trial finally took place four years after the
The experts differed by $3.6 million on the value of the
Justice Mesbur’s frustration with several of the experts
“In each case, each valuator, supposedly acting
After analyzing each real estate expert’s evidence in
She then went on to parse at length, the differences between
Her Honour’s frustration appeared to increase when she
Mr. Herjavec’s valuator estimated that his private company
Two accounting experts, however, not only escaped Justice
Her Honour’s comments left no doubt about what is expected
“I did not find her unduly aligned with Ms. Plese’s
Her Honour went further, and suggested a way to resolve the
Despite the millions of dollars at issue, Herjavec is unlikely
Instead, it may portend the beginning of the end of the
This article was originally published in the\u00a0National Post<\/a>.<\/em><\/p>\n The content of this article is intended to provide a general
\nCourt in\u00a0Plese v. Herjavec<\/em>, a decision released last
\nmonth, seems to suggest that problems with expert testimony
\ncontinue to plague the courts.<\/p>\n
\ndollars involving Robert Herjavec, an entrepreneur and Canadian
\nreality television personality best known for his appearances on
\nDragon’s Den and Shark Tank. Herjavec had separated from his
\nwife of twenty-four years, Diane Plese, leaving her for his dance
\npartner on Dancing with the Stars.<\/p>\n
\nsuccinctly described the lengthy trial before her, as follows:
\n“Ultimately, the real conflict between the parties lies not in
\nthe historical facts of their case or who did what, but rather on
\nthe considerable difference in the expert opinions each has
\nproffered both to determine the value of these assets and to
\ndetermine Mr. Herjavec’s income.”<\/p>\n
\nparties separated. It involved an expert in forensic accounting who
\nwas required to reconstruct records Mr. Herjavec had failed to keep
\nfor his family trust; two real estate experts, who valued the
\nparties’ properties, including a 22,000-square-foot Toronto
\nhome; investment experts; two chartered business valuators, who
\nvalued the shares of Mr. Herjavec’s company; and a chartered
\nbusiness valuator who gave evidence about Mr. Herjavec’s income
\nfor the purposes of the payment of support.<\/p>\n
\nparties’ Toronto home, and by more than $30 million on the
\nvalue of Mr. Herjavec’s shares in his private company.<\/p>\n
\nappearing before her was apparent early in her judgment.<\/p>\n
\nindependently, suggested values that benefitted the position of the
\nparty who had hired him,” she wrote. “Similarly, when it
\ncame to expert opinion on Mr. Herjavec’s income, Mr.
\nHerjavec’s expert, in particular, seemed particularly aligned
\nwith Mr. Herjavec’s position. Sadly, this is often the
\ncase.”<\/p>\n
\ndetail, Justice Mesbur determined that she was unable to accept
\neither expert’s opinion, adding, with some frustration,
\n“While I recognize the valuation is an art, not a science, I
\nwould have expected the ultimate opinions to have been much closer
\nto one another.”<\/p>\n
\neach expert, increasing the $14,000,000 value for the Toronto home
\nproffered by one expert and discounting the other expert’s
\nvalue of $17,600,000. She determined that the home was valued at
\n$15,500,000 at the date of separation.<\/p>\n
\nturned to the value of Mr. Herjavec’s shares in his private
\ncompany. “As was the case with the real estate appraisers,
\ntheir opinions squarely align with the interest of the Party who
\nretained them,” Justice Mesbur wrote. “I am astonished
\nthat there should be this kind of disparity between them. I wonder
\nif their results would have been the same had they been retained by
\nthe other party. This case highlights in very stark fashion the
\ncontinued problem with expert evidence. Notwithstanding the
\nexperts’ clear duties, they nevertheless end up supporting the
\nposition of the party who hired them. The changes in the expert
\nrules and the requirement for experts to acknowledge their duties
\nof independence and impartiality were supposed to solve the problem
\nof experts simply being ‘hired guns.’ Sadly, the problem
\nremains. I must therefore approach each expert’s opinion with a
\ncertain degree of caution and skepticism.”<\/p>\n
\nshares were worth $24,000,000; his wife’s valuator estimated
\nthe same shares at about $52,500,000. After careful analysis of the
\nnearly $30,000,000 difference between them, Justice Mesbur
\ndetermined that the value of the shares was $32,000,000.<\/p>\n
\nMesbur’s sharp criticism, but received her approbation: the
\nexpert who traced the disbursement of $21,000,000 from the trust,
\nand the wife’s expert who gave evidence on Mr. Herjavec’s
\nincome for support purposes.<\/p>\n
\nby the court from experts, saying the wife’s income expert, was
\n“fair and balanced.”<\/p>\n
\nposition. Her evidence was helpful and measured. She clearly took
\nher duties to the court seriously.”<\/p>\n
\ndifficulties with experts, saying “it seems to me that in
\norder to provide the court with truly independent, unbiased and
\nreliable opinions, it would be preferable to require the parties to
\njointly retain a single expert, or perhaps, to require the parties
\nto fund an expert who would be retained by the court, at the
\nparties’ expense.”<\/p>\n
\nto be remembered for its legal principles.<\/p>\n
\n“hired gun.”<\/p>\n
\nguide to the subject matter. Specialist advice should be sought
\nabout your specific circumstances.<\/em><\/p>\n<\/div>\n
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