In Sangha v Sintra Engineering Inc., 2019 ABQB 94, Master Robertson dismissed the plaintiff's claim against the engineering company he formally retained to provide an expert opinion related to a motor vehicle accident that occurred on October 28, 2002.
The plaintiff was involved in a motor vehicle accident on October 28, 2002 where the unknown driver of a vehicle impacted the plaintiff, causing him to leave the road, spin in the median, and impact a sign. The plaintiff issued a lawsuit against the Administrator of the Motor Vehicle Accident Claims Act in 2004. As part of prosecuting that claim, the plaintiff embarked upon obtaining two accident reconstruction reports in 2003 and 2009. He then proceeded to retain Sintra Engineering to provide a biomechanical report in 2013. The retainer letter specifically provided a mutual termination clause to be exercised by either party at any time. Sintra accepted the assignment for a biomechanical report and proceeded with their investigation. Unfortunately, the plaintiff provided last minute photographs, not disclosed to his previous experts, which caused Sintra to change their opinion.
Upon receipt of the new information, Sintra provided a verbal accident reconstruction opinion to the plaintiff indicating the injuries he suffered from the accident on October 28, 2002 were transient and should have been recovered from within two weeks. The plaintiff was told this on five separate occasions. The plaintiff was also told that a subsequent biomechanical report would not help his position. Nonetheless, the plaintiff provided instructions to Sintra to complete their accident reconstruction report, and then once that was finalized, he would provide further instructions for the provision of the biomechanical report.
Thereafter, Sintra Engineering provided its first draft accident reconstruction report. After reviewing the report, the plaintiff suggested minor revisions, which included spelling and grammar. He also wanted certain documents, although referenced in the report, physically attached to the appendix. While Sintra was of the view that these documents were not relevant to their analysis, they obliged the plaintiff and added them to the appendix. A second, third, fourth, and finally a fifth draft accident reconstruction report was provided. Each iteration of the report resulted in the plaintiff asking for further minor changes, which he admitted did not impact the overall opinion. During this process, the plaintiff began making threats against Sintra, including the use of legal proceedings and seeking media attention, if Sintra did not oblige his requests. It was at this point that Sintra decided to terminate the relationship with the plaintiff, exercising the termination clause in the contract. Three copies of the fifth and final accident reconstruction report were provided, the initial $5,000 retainer was refunded, and all further charges left to be invoiced were waived.
The plaintiff then commenced a lawsuit against Sintra in 2015 alleging fundamental breach of contract and delay.
Sintra applied for summary dismissal of the plaintiff's claim. Master Robertson described the claim as being both in breach of contract, as well as delay. The delay component was quickly dealt with as it appeared Sintra was not retained until 11½ years after the accident. Master Robertson indicated, "there has been no obvious consequence of the delay that resulted from the work done by Sintra Engineering."
With respect to fundamental breach of contract, Master Robertson indicated that in order for that claim to succeed, the plaintiff must have been affected by some action of Sintra depriving him from obtaining a biomechanical report elsewhere. However, the plaintiff did obtain a biomechanical report for a different accident in the same year from another engineer. It was plausible that the plaintiff could obtain a biomechanical report from another engineering firm. Thus, there was no fundamental breach or delay.
Accordingly, Master Robertson found there was no merit to the plaintiff's claim and summarily dismissed the action.
In support of the summary dismissal application, Sintra retained the services of a competitor to provide a standard of care report. It went unchallenged by the plaintiff. That report specifically said that Sintra performed properly in accordance with the skill and care of an engineering company in the circumstances. As a result, Sintra met the requisite standard of care. While Master Robertson did not comment extensively on this expert opinion in his reasons, it is evident from the case that the opinion played a positive role in Sintra's defence.
This case also stands for the proposition that a trial expert has a right and duty to remain independent. In Sangha, the plaintiff was trying to insert words into the expert's mouth. That is not ethical, and any expert would be supported by the courts if they chose to terminate the relationship with a client trying to dictate their opinion. Master Robertson specifically said at paragraph 77 of his decision:
A trial expert must be independent from his client. He or she is expected to give an opinion that the expert is qualified to give, not simply put into words the opinion that the client wants. An expert who agrees to include in a written opinion details or assertions that have been dictated by the client, and do not reflect the expert opinion, runs the risk of significant embarrassment and cross-examination at trial, and possibly significant damage to the expert's professional reputation.
Accordingly, the two main points of Sangha are that a trial expert has the right to terminate relationship with its client if the client is trying to influence the expert's opinion, and also the use of a competitor to provide a standard of care opinion will be helpful to the defence of a professional negligence claim.
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