- Expert evidence shows up across many types of civil claims: - Construction disputes, where engineers assess workmanship or defects - Property disputes, where appraisers value real estate…
- Ontario civil litigation generally follows a "loser pays" approach: an unsuccessful party is usually ordered to contribute toward the successful party's costs.
Many Ontario civil disputes turn on a question that requires specialized knowledge — what a property was actually worth, whether a structure was built to standard, or the extent of a medical injury. Answering that question often means hiring an expert witness: an engineer, appraiser, accountant, or physician who prepares a report and, if needed, testifies.
Expert witnesses are not cheap, which raises an obvious question: can you recover expert witness fees from the other side if you win? The honest answer is: sometimes, partially, and never automatically. This article explains how that works.
Expert Witnesses Are a Common — and Costly — Part of Litigation
Expert evidence shows up across many types of civil claims:
- Construction disputes, where engineers assess workmanship or defects
- Property disputes, where appraisers value real estate or business assets
- Personal injury matters, where physicians assess injury and prognosis
- Business disputes, where accountants calculate financial losses
Retaining an expert typically involves paying for their report, their time reviewing materials, and often their time testifying, all of which add up as a disbursement — a real out-of-pocket cost separate from your lawyer's own fees.
Can Expert Fees Be Recovered as Costs?
Ontario civil litigation generally follows a "loser pays" approach: an unsuccessful party is usually ordered to contribute toward the successful party's costs. Costs awards can include an allowance for reasonable disbursements, and expert fees, where the expert evidence was genuinely necessary to the case, can potentially be included in that category.
However, this is never automatic. A few important qualifiers:
- Costs, including any disbursement component, are always at the court's discretion — there is no fixed formula or guaranteed percentage of expert fees recovered.
- The court will generally look at whether the expert evidence was necessary and proportionate to the case, not simply whether you chose to hire one.
- Even where an expert's fees are found appropriate to include, recovery is typically partial rather than a full reimbursement of what you paid.
Factors That Influence Whether Expert Fees Are Recovered
| Factor | Why it matters |
|---|---|
| Was the expert genuinely necessary? | Courts are more willing to include fees for experts central to proving the claim than for a peripheral or duplicative expert |
| Was the expert's fee reasonable and proportionate? | An unusually expensive expert relative to the size of the claim may draw more scrutiny |
| Did the expert's evidence actually help decide the case? | An expert whose evidence was rejected, unnecessary, or excluded is less likely to have their fee included |
| Which court is the case in? | Small Claims Court's overall costs approach is more modest and proportionate than Superior Court's, which affects how much of any expert fee realistically gets recovered |
| Did you win the underlying claim? | A costs award, including any disbursement component, generally only goes to the successful party |
Budgeting for Expert Costs Regardless of Outcome
Because recovery is never guaranteed, the safest approach is to budget for expert fees as a real cost of pursuing or defending your claim, not as money you expect to get back automatically. Practical steps:
- Get a clear quote from the expert before retaining them, including what's covered — report only, or report plus testimony.
- Confirm with your lawyer whether the expert is genuinely necessary for your specific claim, rather than a precaution.
- Keep detailed records of the expert's invoices and the reasoning for retaining them, in case you later need to justify the expense in a costs argument.
- Discuss disbursement handling with your lawyer upfront — some firms advance disbursements and bill later; others require the client to pay experts directly.
- Reassess as the case develops — if the dispute narrows or settles before trial, you may not need the full scope of expert work originally anticipated.
Frequently asked questions
Will I automatically get my expert's full fee back if I win?
No. Even where expert fees are included in a costs award, recovery is typically partial, and always subject to the court's discretion about whether the expert was necessary and reasonable.
What if the other side's expert fees seem excessive?
You, or your lawyer, can challenge the reasonableness of the other side's claimed disbursements, including expert fees, as part of any costs dispute — the same scrutiny applies in both directions.
Do I need an expert for every civil claim?
No. Many disputes turn on facts within a judge's or deputy judge's own understanding and don't require specialized expert evidence. Retaining an expert unnecessarily adds cost without necessarily helping your case.
Does Small Claims Court allow expert evidence?
Yes, expert evidence can be used in Small Claims Court, though the proportionate, simplified nature of that court means both the use of experts and any related costs recovery tend to be more modest than in Superior Court.
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