Executive Summary: Key Legal and Evidentiary Issues

• Scope of an engineer’s expert mandate in analyzing construction delays and their impact on a damages claim for late performance of structural steel work.
• Application of article 241 C.p.c. to a motion seeking partial rejection of an expert report for alleged irregularity, serious error, and partiality before trial.
• Interaction between admissibility and probative value of expert evidence, and the prudential rule favoring the trial judge’s assessment of such reports.
• Use of expert evidence to analyze the critical path, sequencing of work, and resulting delay impacts in complex construction projects.
• Allegations that the expert improperly adopts the client’s theory, weighed against the expert’s formal declaration under article 235 C.p.c. and the judge’s role in evaluating neutrality.
• Extent to which cross-examination at trial is the appropriate vehicle to challenge the expert’s factual analysis and conclusions rather than striking sections of the report at a preliminary stage.

Factual background and parties’ positions

The dispute arises out of a construction project involving structural steel work. Les Aciers Coudibec inc. (“Coudibec”) was engaged to perform steel structure works on a project for Construction Citadelle inc. (“Citadelle”). Citadelle filed a cross-demand (demande reconventionnelle) claiming additional costs and damages allegedly caused by delayed execution of the steel structure work. In response to this cross-claim, Coudibec retained an engineer, Mr. Rock Savard, to prepare an expert report dated 17 September 2025 addressing the sequence of events, the timing of the work, and the consequences of any schedule slippage on the project. The Savard report was produced specifically to answer Citadelle’s claim for delay-related damages. Citadelle then brought a preliminary motion asking the Superior Court to reject portions of this expert report before trial.

The motion to strike portions of the expert report

Citadelle’s application was framed under article 241 of the Code of Civil Procedure, which expressly allows a party, before the hearing on the merits, to seek rejection of an expert report for irregularity, serious error or partiality, provided the motion is notified within 10 days of discovering the ground for rejection. Citadelle did not ask to reject the entire report, but rather to have certain sections struck as irregular and inadmissible, arguing that doing so would better “circumscribe the debate” to what is truly pertinent and necessary to resolve the dispute. The main thrust of Citadelle’s argument was that parts of Mr. Savard’s report went beyond proper expert opinion and were biased in favor of Coudibec, such that they should not be allowed to go before the trial judge. Citadelle also criticized the way Mr. Savard analyzed the facts and built his narrative towards his conclusions, contending that this analysis reflected advocacy rather than neutral expertise.

Nature of the expertise in delay and construction matters

The Court first looked at the nature of the opinion given by Mr. Savard. At first glance, the judge found that Mr. Savard, as an engineer familiar with the construction industry, examined the sequence of events in the project to reach conclusions in the context of a claim for damages arising from delay. This type of analysis—looking at delays, their causes, and their effect on the project’s critical path—is recognized jurisprudentially as a proper subject of expert evidence because of its technical complexity. The Court relied on Le Groupe SGM inc. c. Northech Construction inc., where it was held that analysis of delays and the critical path in a construction project involves complex concepts and specialized knowledge, making expert assistance “precious, even necessary” for the court. The judgment also recalled Développement Tanaka inc. c. Corporation d’hébergement du Québec, where similar principles on delay expertise and critical path analysis in construction were confirmed on appeal. In light of this jurisprudence, the Court viewed the Savard report as falling squarely within the legitimate domain of expert evidence in complex construction litigation.

Allegations of partiality and the role of the expert’s declaration

Citadelle claimed that Mr. Savard was partial because he appeared to adopt his client Coudibec’s theory of the case without sufficient independence. This allegation was made even though Mr. Savard had signed the mandatory declaration under article 235 C.p.c. confirming that he understood his duty to the court and would execute his mission objectively. The Court acknowledged that challenges to the objectivity of an expert can, in principle, fall under article 241 C.p.c. (partiality being expressly listed as a ground). However, the judge emphasized that the mere fact an expert’s conclusions align with the position of the party who retained him is not, by itself, determinative of disqualifying partiality. The appropriate inquiry is whether the report, on its face, demonstrates such irregularity, serious error, or obvious bias that it should be excluded in whole or in part before trial. On this record, the judge did not see evidence of such obvious partiality in the contested sections that would justify pre-emptive excision under article 241 C.p.c.

Prudential approach to preliminary challenges under article 241 C.p.c.

The Court then turned to the broader jurisprudential context of article 241 C.p.c. and preliminary motions to strike expert reports. Relying on Raymond Chabot Grant Thornton c. Directeur général des élections du Québec, the judge recalled that there has been abundant case law since the coming into force of the new Code of Civil Procedure, much of which reflects the courts’ discomfort in excluding expert reports at a preliminary stage, except in clear cases of irregularity, serious error or partiality. In many situations, courts have preferred a prudent approach, deferring such challenges to the trial judge who is best placed to assess both admissibility and probative value in the full evidentiary context. The Court also cited the Court of Appeal’s decision in Cardinal c. Bonneau, where Justice Roy, writing with the support of Justice Shrager, recognized that it is not always appropriate to decide admissibility of an expert report in advance of the trial. While article 241 C.p.c. aims to reduce unnecessary costs and delays, forcing a preliminary adjudication on admissibility in every case could have the opposite effect and risk fragmenting the hearing of the case. Cardinal c. Bonneau also highlighted that the distinction between admissibility and probative value can be thin, particularly concerning relevance and necessity—criteria not explicitly listed in article 241 C.p.c. In such borderline situations, the trial judge is often better positioned to decide whether an alleged irregularity, serious error, or partiality truly warrants exclusion. The Court summarized the case law trend as showing that judges generally only grant motions to reject expert reports under article 241 C.p.c. at the pre-hearing stage in the clearest, most obvious cases. In other situations, judges do not hesitate to defer the issue to the trial judge, who remains sovereign in assessing the probative value of expert reports and testimony.

Expert’s analysis of facts and the proper scope of expertise

Citadelle had also focused its criticism on the way Mr. Savard analyzed the facts. The Court observed, however, that expertise is normally tied to fact analysis, and this is expressly contemplated by article 231 C.p.c. That provision states that expertise exists to enlighten the court and assist in the appreciation of evidence by calling on a person competent in the relevant discipline or field. It specifies that expertise involves, taking into account the facts relating to the dispute, giving an opinion on factual elements connected to the integrity, state, capacity or adaptation of a person, or on factual or material elements related to the evidence. It may also involve establishing or verifying accounts or other data, dealing with liquidation or partition of property, or verifying the state or situation of certain places or property. In this light, the Court considered it normal—even necessary—that an expert’s report will recount, organize, and analyze facts as part of reaching a technical conclusion. The mere fact that Mr. Savard analyzed the factual record in order to support his opinion on delays and their impact did not, in the Court’s view, transform his report into improper advocacy. The judge further noted that Citadelle’s counsel would have full opportunity at trial to cross-examine Mr. Savard on every aspect of his report, including his factual assumptions, methodology, and conclusions. This adversarial testing was the appropriate means to challenge the strength or reliability of the expert’s opinion, rather than excising parts of the report in advance.

Outcome of the motion and implications

Having reviewed the content of the report, the parties’ arguments, and the applicable jurisprudence, the Court concluded that the contested expertise was, on its face, potentially useful to the trial judge in analyzing the dispute in light of all the evidence. The judge did not identify any clear irregularity, serious error, or obvious partiality that would justify striking sections of the report under article 241 C.p.c. at the preliminary stage. Consequently, the Superior Court rejected Citadelle’s motion for partial rejection of the expert report prepared by Mr. Rock Savard, engineer, dated 17 September 2025. The motion was dismissed “avec frais de justice,” meaning that Citadelle was ordered to pay legal costs associated with the application. However, the judgment does not quantify those costs, nor does it address the underlying damages claim relating to delay; the merits of that claim remain to be decided at trial. In this decision, therefore, the successful party is Coudibec, which retains the benefit of having its expert report, in full, available for consideration by the trial judge. The only monetary consequence ordered here consists of costs in Coudibec’s favor, but the exact amount of those costs, and any final damages award on the merits, cannot be determined from this judgment.