Expert Fees and Costs in Medical Liability Litigation

Overview

The two previous notes showed that a medical liability claim in Quebec cannot be proved without expert evidence (preuve d'expertise) and that the expert's independence is policed by the courts. Expert evidence is also expensive, and the expense falls on a claimant who has already suffered an injury and who faces a defendant whose defence is funded by an institution. This note deals with the money. It sets out what the Code of Civil Procedure (Code de procédure civile, CCP) treats as recoverable under arts. 339 to 341, asks whether a claimant of limited means can obtain a (provision pour frais) before trial, examines the that private operators have offered as an alternative, and describes how the courts allocate costs once judgment is rendered. The pre-trial question is dominated by the Court of Appeal's decision in St-Arnaud c. C.L. and by the abuse-based provision of art. 53 CCP; the post-trial question by a line of Superior Court decisions, from Charbonneau to Fiocco, in which unsuccessful medical claimants were spared the defendant's costs.

Learning Objectives

Identify the components of expert costs (frais d'expertise) that art. 339 CCP includes in , and explain how the expert's attendance at trial affects both the weight of the evidence and the bill.
Describe the two routes to a provision for costs and explain why both are rarely successful in medical liability.
State the rule of art. 340 CCP that , and explain when and why courts in Charbonneau, Minier, Robitaille and Fiocco ordered that each party bear its own costs.

The Cost of Expert Evidence

What Counts as Expert Costs under Article 339

Article 339 CCP lists the legal costs (frais de justice) of a proceeding, and expert costs are among them. The second paragraph defines the item. Expert costs include those relating to the drafting of the report, to the preparation of the testimony where applicable, and to the time spent by the expert to testify or, to the extent useful, to attend the trial.

Three consequences follow for a medical file. First, the report is only part of the bill: the expert's preparation for the hearing and the hours spent in the witness box are also recoverable costs. Second, the expert's presence in the courtroom while other witnesses testify is recoverable, but only "to the extent useful" (dans la mesure utile), a qualification that invites the taxing court to ask whether the attendance served the proof or merely the comfort of counsel. Third, because these amounts are legal costs, their allocation is governed by the rule of art. 340 CCP that costs follow the event, discussed below, and by the further power the course material flags in art. 341 CCP to take a party's conduct of the proceeding into account in allocating costs.

The Expert Who Attends the Whole Trial

The phrase "to the extent useful" matters because an expert who attends the entire trial gains an advantage in credibility. Lalonde c. Tessier, 2011 QCCS 3935, shows the advantage at work. The court recalled that it is for the judge to assess the credibility of expert witnesses and the value of their approach, and that the expert opinion must be examined in light of the testimony heard. Both experts agreed on almost everything. Where they diverged, the court preferred the opinion of Dr Michel Lemay, the expert for the Lalonde side, who had explained what the acceptable conduct of a physician of reasonable competence placed in the same circumstances should have been. At paragraph 317, the court gave a further reason: Dr Lemay had enjoyed the immense advantage of being present in court throughout the trial, had heard the witnesses and the other experts, and had an intimate knowledge of the file, so that his comments carried the court's adhesion. The court added that this took nothing away from the qualities of the opposing expert's opinion and testimony.

The course material draws the practical lesson. An expert who sits through the trial produces evidence the judge finds more persuasive. The same attendance multiplies the expert's hours and therefore the expert costs. The "to the extent useful" limit in art. 339 CCP is the legislature's answer to that tension: attendance that adds to the proof is recoverable, attendance that only adds to the bill is not.

Access to Justice Concerns

Judges have said openly that the cost of experts threatens the right to be heard. In Godbout c. Bolduc, 2007 QCCS 726, at paragraph 129, the court observed that the cost of experts has become so significant that it is likely to discourage a litigant who has a good right to assert, and that it therefore constitutes a factor compromising the free access of a citizen to justice, to which the citizen has a constitutional right.

Fiocco c. De Varennes, 2017 QCCS 5042, put figures on the concern. At paragraph 147, the court said that at a time when access to justice is a major societal challenge that engages the confidence of citizens in their system of justice, it remained preoccupied by the impact of a judgment condemning the plaintiffs to pay the defendant nearly $60,000 in costs, all the more so since they were already bearing nearly $50,000 for their own experts, to which lawyers' fees would certainly be added.

Paying the Costs Before Trial

A claimant who cannot pay for experts cannot prove the claim. Three private and public responses have been tried: the expert who agrees to be paid only on success, the provision for costs ordered against the defendant, and funding by an outside investor. The first was examined in the previous note through Trudeau c. Pellemans, 2006 QCCS 199, and Fillion c. Cantin, 2012 QCCS 2666, which treat the contingent fee as a matter of weight rather than admissibility. The course material lists those two decisions again under the heading of pre-trial payment, because the expert's waiver is, in substance, a form of financing.

The St-Arnaud Litigation

C.L. c. St-Arnaud, [2008] R.J.Q. 1907 (C.S.), reversed by St-Arnaud c. C.L., [2009] R.J.Q. 239 (C.A.), arose from a premature birth. The claimants applied to compel the physician, Dr St-Arnaud, to pay a first instalment towards the compensation claimed, to be used for the proof. Their expert costs were estimated at $60,000, and they asked that the defence be ordered to advance a provision for costs.

The Superior Court granted the application. The judge found an imbalance between the means of the parties. The course material records the reasoning in blunt terms: the family suing the physician already pays for the defence through its taxes, while it must fund its own proof from private resources. The physician was ordered to pay $30,000, half the anticipated expert costs.

The Court of Appeal reversed. Its reasons, at paragraphs 29 and following, set out the conditions on which a provision for costs may be granted and held that they were not met. The core of the decision is institutional. Ordering one litigant to finance the other's proof, on the ground that the other is poorer, is an exercise of distributive justice, and distributive justice belongs to the legislature rather than to the courts. Paragraph 23 adds the requirement that the case raise a question of public interest. The three conditions the Court of Appeal restated, drawn from the Supreme Court of Canada's case law on advance costs, are: the absence of financial resources, a claim that appears prima facie well founded in law, and exceptional circumstances raising a question of public interest. A medical liability claim between private parties, however sympathetic, will rarely satisfy the third.

The Rejected Idea of Provisional Damages

The course material identifies an argument that could have been raised in St-Arnaud and that explains why the courts hold back. Article 1688, second paragraph, of the 1987 Avant-projet de loi portant réforme au Code civil du Québec du droit des obligations, associated with Paul-André Crépeau, would have allowed the court, during the proceeding, to order the debtor to pay the creditor where the creditor showed a sufficiently serious appearance of a right to damages.

The provision was not enacted. The inference is a contrario: the legislature considered interim damages, decided against them, and the remedy therefore forms no part of Quebec law. A court that orders a defendant to advance money towards the plaintiff's proof before any finding of fault is granting, under another name, the interim award the legislature declined to create. Change, if it comes, must come from the legislature, and the course material observes that the legislature did act, though only "a little," through arts. 51 and following CCP on .

The Provision for Costs under Article 53

Article 53 CCP is the provision that resulted. Where a proceeding is abusive, the court may dismiss the application or other pleading, strike a conclusion or require its amendment, refuse or terminate an examination, or annul a subpoena. In such a case, or where there appears to be abuse, the court may, if it considers it appropriate, order the party who introduced the application or presented the pleading to pay the other party, on pain of dismissal of the application or pleading, a provision for the costs of the proceeding, if the circumstances justify it and if the court finds that, without that assistance, the other party risks finding itself in an economic situation such that it could not validly assert its point of view.

Two features confine the remedy. It is tied to abuse: the court must find that the proceeding is abusive or appears to be so. And it runs against the party who introduced the abusive proceeding, which in a medical liability claim would ordinarily be the plaintiff, not the physician. A claimant seeking money from the defence to pay for experts must therefore show that the defence itself is abusive, a showing that is rarely available where the physician simply denies fault and calls experts of his own.

The result is a two-track system. A provision for costs may be obtained either on the three conditions restated in St-Arnaud (lack of resources, prima facie good right, public interest) or on the abuse conditions of art. 53 CCP. In both tracks the remedy runs against the ordinary rule that each party finances its own proof until judgment, and in both it is difficult. Droit de la famille 2226, 2022 QCCS 73, at paragraph 51, states the current position in civil matters: a provision for costs is granted only in exceptional circumstances, notably where the interest of the litigation exceeds that of the parties involved or where the abusive conduct of the other party justifies it.

Cases Granting and Refusing a Provision

The decisions in which a provision was granted show what the abuse track requires and how the economic condition is read.

Hétu c. Notre-Dame de Lourdes (Municipalité de), 2005 QCCA 199, is the source. At paragraph 57, the Court of Appeal held that a provision for costs corresponding to part of the reasonable anticipated remained possible under the former art. 46 CCP, if the party seeking it established that it was so deprived of resources that it would be unable, without the order, to have its case heard (a state of ), and that the other party's proceeding appeared prima facie abusive. In other words, there had to be circumstances sufficiently special for the court to be satisfied that the safeguard of the party's rights justified the exercise of the broad discretionary power conferred by art. 46 CCP as in force since 1 January 2003. As Barrick Gold later noted, the principles of Hétu were codified in art. 54.3 of the former Code, the predecessor of art. 53 CCP.

Barrick Gold Corporation c. Éditions Écosociété Inc., 2011 QCCS 4232, applied Hétu to a defendant sued for defamation and identified as the potential victim of a strategic lawsuit against public participation. At paragraph 39, the court recalled that in Hétu the Court of Appeal had granted a provision corresponding to part of the reasonable anticipated extrajudicial fees, and it awarded $143,190, half of the anticipated fees.

Syndicat des copropriétaires Les-Dauphins-sur-le-Parc c. Beauregard, decided by the Superior Court in 2013, read the economic condition generously. At paragraph 16, the court identified the two conditions under the former art. 54.3 CCP once the proceeding was declared to appear abusive: the circumstances must justify the order, and the court must find that without the assistance the party sued risks finding itself in an economic situation in which it could not validly assert its point of view. At paragraphs 18 to 20, the court held that the party need not prove a total absence of means. The text requires a risk of an economic situation in which the party could not validly defend itself, not certainty; it suffices to prove that the risk exists; and the expression "validly assert its point of view" contemplates a capacity to defend validly, not minimally. Given the cost of litigation today, the court added, few people can assert their point of view without ruining themselves, as the Chief Justice of Canada had herself denounced. A provision of $8,000 was granted to a defendant sued for defamation.

Cadieux c. Boileau, 2019 QCCS 4772, shows the refusal. The plaintiffs had sued after a hunting rifle accident of 12 October 2013 that left the plaintiff with serious sequelae; the defendant's insurer was impleaded and the vendor of the weapon was called in warranty. The plaintiffs claimed $113,000 as a provisional indemnity and provision for costs, framed variously as a safeguard measure, a provisional indemnity, a provision for costs, art. 49 CCP, and the court's judicial discretion. At paragraph 37, the court held that a provision for costs is discretionary in nature and is granted only in particular cases, in the presence of exceptional circumstances, the Supreme Court having recognized a broad discretionary power in the matter. The three conditions applied were those stated by the Supreme Court and restated in St-Arnaud: absence of financial resources, a claim prima facie founded in law, and exceptional circumstances raising a question of public interest. The application was dismissed. Measured against those conditions, an ordinary personal injury claim between private parties, whatever the plaintiff's need, is hard to bring within the public interest component.

The pattern is consistent: provisions were granted to defendants facing abusive or gagging suits, and refused to plaintiffs seeking to finance their own proof against a defendant who was merely defending, whether in St-Arnaud or in Cadieux.

Third-Party Litigation Funding

Since the courts will not order the defendant to finance the plaintiff's proof, the market has offered to do so. The course material describes the Bentham IMF fund, an international litigation financier that has operated for some thirty-five years, is active in Germany, the United States and Asia, and has been present in Canada since 2016. The first litigation it funded in Quebec was Banque de Montréal c. Marcotte, 2014 SCC 55, argued and won by the firm Trudel, Johnston, Lespérance. The model works as follows: a committee of jurists and financial analysts reviews files on the merits and decides whether to fund the suit, the appeals and the legal analysis; if the claim succeeds, the fund is paid a percentage of the recovery that may reach 35 percent; if the claim fails, the fund absorbs the loss.

Daniel Gardner, in Le préjudice corporel, 5th ed. (2024), at no. 353, is sceptical about the Quebec experience. A Canadian company specialized in litigation financing, Gestion Lexfund, has been in the Quebec market since 2007 without much success. The initial offer sounds attractive ("you owe nothing if the case is dismissed"), but the strict eligibility conditions for a file and, above all, the interest rate demanded, which exceeds the rates charged by credit card issuers, make it a ruinous financing tool. Gardner adds that some decisions outside Quebec have allowed the victim to recover those credit costs from the defendant on success, but that the British Columbia Court of Appeal refused to follow that path, treating the question as one of costs.

Percentage-based funding by an institutional investor may therefore suit a large, well-founded claim, whereas funding by loan at high interest shifts the risk back to the claimant, and Gardner's account gives no assurance that the credit cost can be recovered from the defendant as legal costs.

Worked example: financing the claim before trial

A family sues an obstetrician after a delivery that left their child with a permanent neurological injury. Their counsel estimates the expert costs at $55,000 for three specialists, one of whom will attend the entire twelve-day trial. Before trial, the family applies for an order that the physician advance half of that sum. The physician's defence consists of a denial of fault supported by two expert reports, and nothing in it suggests abuse.

The pre-trial application fails. Under St-Arnaud c. C.L., the court cannot redistribute the cost of proof on the ground of inequality of means, and the claim, though prima facie serious, raises no question of public interest. Article 53 CCP is unavailable because the defence is not abusive, and Cadieux c. Boileau shows a request presented as a safeguard measure, a provisional indemnity and a provision for costs being refused on the same three conditions. The family must finance the proof itself, through an expert who agrees to be paid on success, as in Trudeau c. Pellemans, or through a funder, with the warning in Gardner's treatise about loan financing at high interest.

Allocating the Costs After Trial

The Costs Follow the Event Rule and the Court's Discretion

Article 340 CCP states the rule: legal costs are owed to the party that prevailed, unless the court decides otherwise. Since expert costs are legal costs under art. 339 CCP, a medical claimant whose action is dismissed is exposed, in principle, to the defendant's expert bill in addition to their own. The course material also points to art. 341 CCP, which allows a party's conduct of the proceeding to bear on the allocation of costs.

Robitaille c. Picard, 2019 QCCS 1285, describes the discretion. At paragraphs 380 to 382, the court recalled that the principle of costs following the event, enshrined in art. 340 CCP, means that legal costs are owed to the party that prevailed by the party that failed in its contestation; that the court may nonetheless, by reasoned decision, decide otherwise if the circumstances lend themselves to it; that the court thus has a broad discretionary power, which must however be exercised judicially; and that neither the case law nor the doctrine appears to have established guidelines or real principles on the subject, each case being decided on its own facts.

The course material identifies a tendency in medical liability: courts order that the judgment be rendered (sans frais), so that each party pays its own expert costs. The tendency has two sources, the defence's waiver and the court's own departure.

Waiver by the Defence: Charbonneau and Minier

Charbonneau c. Centre hospitalier Laurentien, 2009 QCCS 4974, shows the waiver. The plaintiffs were the parents of Olivier, who had been diagnosed shortly after his premature birth with periventricular leukomalacia, the origin of the cerebral palsy from which he suffered. Acting as his tutors, they held the defendants responsible and claimed $4,750,000. At paragraph 417, the court, while expressing much sympathy for Olivier and his parents, held that it had to decide according to the rule of law and dismiss the claim. At paragraph 418, it recorded that the defendants' counsel had stated in argument that they did not ask that the plaintiffs be condemned to costs, and the judgment was rendered without costs accordingly.

Minier c. Bouchard, 2019 QCCS 962, adds a refinement: legal costs comprise more than expert costs, and a partial waiver may be extended by the court. The plaintiff lived with a permanent deficit to his right leg, the result of a rare neurological complication that occurred during a local anaesthetic administered for total knee replacement surgery. The action was dismissed. At paragraph 125, the court held that the rule that legal costs are owed to the successful party had to be set aside under art. 340 CCP. At paragraph 126, it explained that the defendant's counsel should have extended their declaration waiving expert costs to all legal costs, for the same reasons that had no doubt motivated the initial declaration: sympathy towards the victim of a medical act that had gone wrong, and the equitable distribution of costs, insofar as that single event was capable of generating and justifying the judicial proceeding the plaintiff had undertaken. The action was dismissed without legal costs.

Defence counsel in medical files sometimes waive costs against an unsuccessful claimant, and where the waiver is limited to expert costs, the court may complete it on its own authority under art. 340 CCP.

Judicial Departure: Robitaille and Fiocco

Where the defence does not waive, the court may still depart. In Robitaille c. Picard, at paragraphs 387 and 388, the court described the plaintiff as an unfortunate victim of a medical act that had gone wrong, whose action had been exercised reasonably and in conformity with the guiding principles of the new procedural law. For those reasons, and since the defendant had left the award of legal costs to the court's discretion, it appeared just and equitable to order that each party bear its own legal costs.

Fiocco c. De Varennes, 2017 QCCS 5042, is the most developed statement. At paragraph 143, the court acknowledged that the Court of Appeal has held that the economic inequality of the parties cannot in itself justify departing from the principle that costs follow the event. At paragraph 146, it noted that despite that principle, some decisions, even under the former Code, had allowed the imbalance between the parties' resources to be taken into account in particular circumstances, and that in medical civil liability a certain line of authority had justified its decision on costs by the socially useful work that such actions perform. The court subscribed to that view. Civil liability aims first and foremost to compensate an injury, but it also plays, especially in professional matters, a preventive and educational role, a role in the evolution of practices and knowledge. That purpose benefits the whole community and, in particular, physicians and the , and it must be capable of being achieved; if the courts cannot facilitate it, they should at least not hinder it.

At paragraph 147, after the access-to-justice observation quoted earlier, the court concluded that Ms Fiocco was an unfortunate victim of a therapeutic accident for which she was justified in seeking liability; that her action had been exercised reasonably and in conformity with the guiding principles of the new procedural law; and that she had raised legitimate questions from which a debate of rare quality and impressive medical complexity had resulted. Guided by the interest of justice, the court declined to award costs to the defendant.

The elements that recur in these decisions can be listed:

The plaintiff is the victim of a medical act or therapeutic accident that went wrong, so that the injury itself explains and justifies the suit.
The action was conducted reasonably and in conformity with the guiding principles of procedure, without abuse or excess.
The questions raised were legitimate and the debate was of genuine medical complexity.
Medical liability actions serve a social purpose beyond compensation, in the prevention of harm and the evolution of practice.
In several of the decisions, the defendant waived costs or left them to the court's discretion; in Fiocco, the court declined to award them to a defendant who had not.

Two limits remain. Economic inequality alone does not justify departure, according to the Court of Appeal decision cited in Fiocco; something more, drawn from the conduct of the case and its social value, is required. And the discretion is exercised case by case: Robitaille records that no general guidelines exist, so a claimant cannot assume that a dismissed medical claim will always be without costs.

Worked example: allocating costs after trial

Returning to the obstetrician's case, after trial the action is dismissed. The physician's counsel asks for costs, including $40,000 in expert costs, and points out that the plaintiffs' own expert sat in court for twelve days.

The starting point is art. 340 CCP: costs, including expert costs under art. 339 CCP, follow the event. The court will however ask whether the plaintiffs' expert's attendance for twelve days was useful to the proof or only to counsel, since art. 339 CCP recovers attendance only to the extent useful. Beyond that, under Robitaille and Fiocco the court may order that each party bear its own costs: the family are victims of a medical act that went wrong, their action was conducted reasonably, the questions raised were legitimate and medically complex, and the proceeding served the preventive purpose that Fiocco attributes to medical liability litigation. If defence counsel follows the practice recorded in Charbonneau and waives expert costs, Minier allows the court to extend the waiver to all legal costs.

Practice Checklist

Budgeting the proof

Estimate expert costs under the three heads of art. 339 CCP (report, preparation of testimony, time testifying or attending) and record why any attendance at trial is useful to the proof (Lalonde c. Tessier).

Financing before trial

Before applying for a provision for costs, verify whether the three conditions restated in St-Arnaud c. C.L. (lack of resources, prima facie good right, public interest) can be met, and expect refusal in an ordinary private claim (Cadieux c. Boileau).
Reserve art. 53 CCP for a defence that is or appears abusive; the provision runs against the party that introduced the abusive proceeding (Hétu; Les Dauphins-sur-le-Parc; Barrick Gold, decided under the former Code).
If third-party funding is considered, distinguish percentage-based institutional funding from loan financing at high interest, and do not assume the credit cost is recoverable from the defendant (Gardner, no. 353).

Costs after trial

Ask defence counsel whether they waive costs against an unsuccessful claimant, and whether the waiver covers all legal costs or only expert costs (Charbonneau; Minier).
When seeking a judgment without costs after dismissal, plead the recurring elements: victim of a medical act gone wrong, reasonable conduct of the action, legitimate and complex questions, social value of medical liability litigation (Robitaille; Fiocco).
Do not rely on economic inequality alone to displace art. 340 CCP (Fiocco, para. 143).

Glossary

Abuse of procedureabus de procédure: The conduct described in arts. 51 and following CCP that triggers the court's powers under art. 53 CCP, including the provision for costs.
Costs follow the eventsuccombance: The rule of art. 340 CCP that legal costs are owed to the successful party by the party that failed, unless the court decides otherwise.
Expert costsfrais d'expertise: The costs of drafting the expert report, preparing the testimony where applicable, and the time the expert spends testifying or, to the extent useful, attending the trial (art. 339 CCP).
Extrajudicial feeshonoraires extrajudiciaires: The fees a party pays its own lawyer, as distinct from legal costs; a provision for costs may cover part of the reasonable anticipated extrajudicial fees.
Impecuniosityimpécuniosité: The state of a party so deprived of resources that, without an order, it would be unable to have its case heard.
Indemnification fundfonds d'indemnisation: The fund identified in Fiocco, alongside physicians, as a beneficiary of the preventive role of medical liability actions.
Legal costsfrais de justice: The costs of a proceeding listed in art. 339 CCP, including expert costs among other items; owed to the successful party under art. 340 CCP unless the court decides otherwise.
Provision for costsprovision pour frais: An order that one party advance, before judgment, part of the costs the other party needs to present its case; under art. 53 CCP it is available only where a proceeding is or appears abusive, and outside abuse only on the exceptional conditions restated in St-Arnaud c. C.L.
Provisional damagesdommages-intérêts provisionnels: An interim award of damages made during the proceeding on a sufficiently serious appearance of right; proposed in the 1987 draft reform of the law of obligations and not enacted.
Third-party litigation fundingfinancement des litiges par un tiers: An arrangement under which an outside investor pays the costs of a claim in exchange for a percentage of the recovery, absorbing the loss if the claim fails.
Without costssans frais: A judgment in which each party bears its own legal costs, including its own expert costs.

References and Further Reading

Code of Civil Procedure (Code de procédure civile): arts. 49, 51 and following, 53, 339, 340, 341; former arts. 46 and 54.3.
Avant-projet de loi portant réforme au Code civil du Québec du droit des obligations (1987): art. 1688, second paragraph.
Selected case law: Lalonde c. Tessier, 2011 QCCS 3935; Godbout c. Bolduc, 2007 QCCS 726; Fiocco c. De Varennes, 2017 QCCS 5042; Trudeau c. Pellemans, 2006 QCCS 199; Fillion c. Cantin, 2012 QCCS 2666; C.L. c. St-Arnaud, [2008] R.J.Q. 1907 (C.S.); St-Arnaud c. C.L., [2009] R.J.Q. 239 (C.A.); Hétu c. Notre-Dame de Lourdes (Municipalité de), 2005 QCCA 199; Barrick Gold Corporation c. Éditions Écosociété Inc., 2011 QCCS 4232; Syndicat des copropriétaires Les-Dauphins-sur-le-Parc c. Beauregard (C.S., 2013); Cadieux c. Boileau, 2019 QCCS 4772; Droit de la famille 2226, 2022 QCCS 73; Banque de Montréal c. Marcotte, 2014 SCC 55; Charbonneau c. Centre hospitalier Laurentien, 2009 QCCS 4974; Minier c. Bouchard, 2019 QCCS 962; Robitaille c. Picard, 2019 QCCS 1285.
Doctrine: Daniel Gardner, Le préjudice corporel, 5th ed., Éditions Yvon Blais, 2024, no. 353.

Disclaimer

This article is for informational purposes only and does not constitute legal advice. Quebec civil law may evolve through legislation and judicial interpretation. For advice on a specific situation, consult a qualified Quebec lawyer or notary.