Expert Evidence by Madame Justice Epstein

Krawchuk v. Scherbak, 2011 ONCA 352 (upheld by Supreme Court of Canada 9 December 2011)

Background

In Krawchuk v. Scherbak, the plaintiff purchased a property that turned out to have severe structural defects. She sued both the sellers’ and the buyer’s agent (herown agent), alleging negligence and misrepresentation.

At trial, the expert witness for the defence testified about the standard of care for a real estate agent. The trial judge accepted that evidence and dismissed the claim against the agent. However, on appeal, Justice Epstein took a much closer look at what that expert had actually said—and what was missing.

Justice Epstein’s Key Observations

1. Expert Evidence Must Reflect the True Standard of Care
   1. Justice Epstein emphasized that expert evidence is useful but not determinative.
   1. The ultimate question of whether a realtor met the legal standard of care is for the court to decide, not the expert.
   1. The expert in this case failed to adequately address what a competent agent should have done when the purchaser was told of visible defects that clearly suggested serious underlying issues.

“While the trial judge accepted the expert’s opinion, I am of the view that the court must look beyond the expert’s conclusions to the factual matrix that informs the duty of care.”

• Courts Are Not Bound by an Expert’s Conclusions
  • Justice Epstein observed that even if an expert says the agent’s conduct was acceptable, that opinion cannot shield an agent from liability if the facts demonstrate otherwise.
  • The appellate court found that the agent’s conduct fell below the reasonable professional standard—despite the supportive expert testimony at trial.

“An expert opinion cannot override the court’s own assessment of what is reasonable in the circumstances.”

• Expert Evidence Must Be Grounded in Specific, Practical Obligations
  • The expert had described the agent’s obligations in general terms but failed to deal with the specific red flags (uneven floors, misaligned doors, and sloping) that should have prompted the agent to advise the buyer to obtain further inspection.
  • Justice Epstein held that a competent agent must do more than simply pass along information from the seller; they must identify and respond to clear signs of potential defects.

“The expert’s testimony did not address the precise conduct that would be expected of a reasonably competent agent when faced with such obvious indicators of structural problems.”

Findings/Result

• The Court of Appeal found the agent negligent despite the expert’s favourable opinion.
• Justice Epstein held that the agent’s failure to recommend further inspection was a breach of the standard of care.
• Liability was split 50/50 between the sellers and the agent under the Negligence Act.

Conclusions about the use of Expert Witnesses

Justice Epstein’s reasoning in Krawchuk v. Schebak highlights several enduring principles about expert witnesses in real estate negligence cases:

• Expert evidence assists but does not decide.
• Courts retain the final word on what is reasonable conduct.
• A supportive expert cannot rescue an agent whose conduct is objectively careless.
• The standard of care is contextual—it depends on what a prudent agent should have done with the information available at the time.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com