An interesting issue arose last month at a trial in which our office was involved. The action, Quattrocchi v. Chiquita et al. (link to decision appears above), was a subrogated claim arising out of a fire at a Smiths Falls warehouse. Damages had been agreed upon and the action proceeded to trial on the issue of liability for the fire.
Both sides had retained experts. Three of the plaintiff’s four experts were professional engineers, licensed to practise in Ontario. The main defence expert was an American engineer who has written a book on investigation of electrical fires. He was not licensed as an engineer in Ontario. The defence expert and several of the plaintiff’s experts had been retained to address origin and cause issues.
At trial, counsel for the plaintiff moved for an order preventing the American engineer from being qualified as an expert. The plaintiff contended that by testifying in an Ontario court, the defence expert would be engaging in the practice of professional engineering without being properly licensed under the Professional Engineers Act. Counsel for the plaintiff relied on section 12 of that statute, which reads:
No person shall engage in the practice of professional engineering or hold himself, herself or itself out as engaging in the practice of professional engineering unless the person is the holder of a licence, a temporary licence, a provisional licence or a limited licence.
The plaintiff also cited an unreported 2003 decision of Mr. Justice William J. Festeryga in Weslee Mann-Tattersall v. The Corporation of the City of Hamilton, in which this argument (that a professional engineer not licensed in Ontario was prohibited by s. 12 of the PEA from testifying as an expert at an Ontario trial) had succeeded.
In the Quattrocchi case, Mr. Justice A. deLotbinière Panet of the Ontario Superior Court dismissed the plaintiff’s motion and ruled that s. 12 of the PEA did not prevent the defence expert from testifying. A copy of His Honour’s reasons is attached at the top of this post as a PDF.
His Honour accepted some Illinois caselaw cited by the defence, in which it had been held that “licensing may be a factor to consider in determining whether an engineer is qualified to testify as a witness” but that an engineering licence was not required as a prerequisite to testifying.
Justice Panet also focused on the definition of “practice of professional engineering” which appears in s. 1 of the PEA:
“practice of professional engineering” means any act of designing, composing, evaluating, advising, reporting, directing or supervising wherein the safeguarding of life, health, property or the public welfare is concerned and that requires the application of engineering principles, but does not include practising as a natural scientist
His Honour held that “the obvious purpose is to protect the interests of the public in these areas” and that it was “doubtful” whether engineering evidence about the origin and cause of a fire that had taken place in 2002 “would involve the safeguarding of life, health, property or the public welfare”.
Still, Justice Panet did not say that ruling of Justice Festeryga in Weslee Mann-Tattersall was wrong. He merely distinguished it on its facts. Thus, an objection to testimony from a non-Ontario engineer, based on s. 12 of the PEA, might still be viable in an appropriate case.