Kaul – Tax Court of Canada allows an art appraiser to testify on her opinions formed in doing reports for the promoter

An art appraiser, who had been retained by the promoter to value and prepare brief appraisal reports on art to be donated in an art donation program, had previously been prohibited from acting as an expert in Tax Court proceedings respecting the fair market value of the donated art since inter alia she was not impartial. Rossiter CJ nonetheless found that she could testify to the contents of the Appraisal Reports which she had prepared many years previously for the developer, with that testimony to be limited to the opinions that she had formed while preparing those reports.

This finding was reached on the basis that she was a “participant expert” within the meaning of Westerhof v Gee Estate, 2015 ONCA 206. Under the Westerhof test, “the opinion to be given is based on the witness's observation of or participation in the events at issue; and the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.” This test was satisfied here as her appraisals had not been performed with a view to the subsequent Tax Court litigation.

Neal Armstrong. Summary of Kaul v. The Queen, 2017 TCC 55 under Tax Court Rules, s. 145.