When the facts of a case surpass the knowledge and experience of the Court, particularly because of their technical or scientific aspects, parties to a suit will often call upon an expert to give an opinion based on specialized knowledge acquired during studies and professional experience. This opinion, explained in a report and, often, during testimony before the Court, should help the judge with his comprehension and analysis of certain facts, and thus assist him in the decision to be rendered¹.
However, the expert cannot give an opinion on a question of law, which comes within the competence of the judge. In fact, existing case law establishes that the courts are not bound by the opinion of an expert who testifies during a trial. The expert must play the role of an advisor to the Court, which will then elaborate its own opinion on the matters in dispute. This existing case law was recently confirmed by the Court of Appeal in the judgment La Compagnie d'assurance St-Paul et al c. SNC Lavalin inc. et al².

The Facts

In this case, the plaintiff/appellant Municipalité des Îles-de-la-Madeleine (hereafter 'Municipalité'), insured by co-plaintiff/appellant St-Paul Marine & Fire Insurance Company (hereafter 'St-Paul'), and the defendant/respondent SNC Lavalin Inc. (hereafter 'SNC Lavalin') entered into a contract for services by which SNC Lavalin would manage the designing and construction of a waste treatment centre. The centre mainly comprised of a receiving area where the waste bins are located as well as the incinerator in which the waste is inserted in order to be incinerated.

On October 21, 2011, approximately seven years after the construction of the centre, a fire occurred in the waste bins. Although the cause of the fire could not be determined, its origin was situated inside the waste bins. The building was not equipped with a fire alarm system or automatic water sprinklers.

Interestingly, the first plans that were drawn up by the defendants before the construction of the building included the installation of a fire alarm system in the centre, yet these plans were subsequently modified and the installation of this system cancelled.

After the fire, the appellant St-Paul compensated its insured, the Municipalité, in the amount of $1 410 971, the latter having paid a deductible of $50 000. The appellants then demanded from the respondents $829 964 for compensation for aggravated material damages caused during the fire and resulting from faults committed by the respondents.

The Trial Judgment

At trial, the plaintiffs pleaded that the defendants did not respect standard practices ('règles de l'art') applicable to fire protection in that they did not install a fire alarm system or automatic sprinklers, which most likely would have led to the fire being detected more rapidly and thus have limited the damages.

In order to establish the existence and specific content of applicable standard practices, the plaintiffs invoked the standards set out in the National Building Code 1985 (hereafter 'NBC'). They also had an expert witness testify to the effect that the NBC required the defendants to allow for the installation of an automatic sprinkler system and a fire alarm system in the building.

In contrast, the expert retained by the defendants was of the opinion that the provisions of the NBC did not apply to said building and that the latter was in compliance with the NBC with regards to fire protection.

After having examined the reports and testimonies of the two experts, the trial judge came to the conclusion that the NBC did not apply in this case with regards to the installation of said systems, by basing himself on the opinion given by the defendants' expert. More precisely, the judge dwelled upon assessing the credibility of the two experts and concluded that the defendants' expert was the more credible of the two. He therefore preferred the opinion of this expert regarding the interpretation and application of the standards set out in the NBC, which was to the effect that these did not apply in this case and that the building did not require the installation of sprinklers or a fire alarm.

The plaintiffs' claim was therefore dismissed.

The Court of Appeal Judgement

The plaintiffs/appellants appealed this decision and, on August 29, 2011, the Court of Appeal unanimously reversed the Superior Court's judgment and returned the case before the latter in order to determine the amount of aggravated damages, if such is the case. In fact, the Court of Appeal agreed with the arguments raised by the appellants regarding the role of an expert who is mandated to give an opinion on the facts of the case, and regarding section 6.2.6.1 et al of the NBC and the requirement to install sprinklers that are equipped with an alarm.

The appellants maintained that the interpretation and application in law of the NBC come within the authority and competence of the Court, and not of an expert's opinion. They pleaded that the trial judge erred in law by basing himself on the interpretation of the defendants'/respondents' expert in concluding that the standard practices related to fire protection did not require the installation of a fire alarm system or automatic sprinklers in the building.

The Court of Appeal noted that the section of the NBC that was invoked is a legal provision, and its interpretation must be carried out by the Court and not by an expert retained to testify before the judge. More precisely, states the Court of Appeal, the matter of how to interpret a provision should not have been determined by the trial judge basing himself on the credibility of each of the two experts involved. Rather, the Court must decide by applying pertinent rules of interpretation to any legal provision or text.

The Court of Appeal then re-evaluated the question of the application of the NBC and came to the conclusion that the respondents' expert had interpreted the provisions of this Code much too restrictively in making a distinction between two types of incinerators based on their use and thus concluding that the standards set out in the NBC did not apply to the building in this case. The trial judge therefore committed an error in setting aside the application of the provision of the NBC.

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In the field of insurance law, the services of experts, be it in construction, plumbing, engineering or other specializations, are retained on a regular basis. By confirming the current state of case law in the matter, the Court of Appeal reminds us of the role of an expert who is mandated to give his opinion before the Court. The expert provides information and conclusions which should help the trial judge with the consideration of the proof and comprehension of the facts.

However, interpreting and applying the law and legal texts, such as, among others, the National Building Code, the Plumbing Code and the Construction Code, come within the exclusive competence of the judge and not of an expert. Hence, the judge should not rule on a matter by basing himself exclusively on the opinion and credibility of the expert, without also having analysed the proof and applied the law to the facts of the case.

Mtre Pat Pelonis
Mtre Amélie Pasquin

Pasquin Viens Lawyers



¹ TESSIER, Pierre et Monique DUPUIS, Les qualités et les moyens de preuve - Le témoignage, École du Barreau du Québec, Preuve et Procédure, Collection de droit 2009-2010, vol. 2, Cowansville, Éditions Yvons Blais, 2009, p. 290-291.
² EYB 2011-194826 (C.A.).