Hot-tubbing in cross-border litigation

Bruce Roher • September 19, 2017

Canadian and US businesses are expanding their reach into each other’s jurisdictions, often taking on new partners. As a result, shareholder disputes can arise, which can lead to cross-border litigation. As an expert witness in the areas of business valuation, economic damages, and forensic accounting, I have found that pre-trial hot-tubbing is occurring more frequently than ever before in Canadian courts.

What is Hot-Tubbing?

Hot-tubbing is a term used when experts meet before trial to attempt to resolve differences in opinion or, at a minimum, prepare a joint statement for the court outlining the main differences and the reasons for them.

Statutory Authority for Hot-Tubbing

This meeting of the experts is codified in Ontario’s Rules of Civil Procedure whereby Paragraph 20.05 (2)(k) provides that the court may direct the experts to meet on a without-prejudice basis before trial.  In making such a direction or order, the court will consider if the benefits that might be achieved from the meeting are proportionate to the amount of the claim or the importance of the issues involved, and

  • There is a reasonable prospect for agreement on some or all of the issues; or
  • The rationale for opposing expert opinions is unknown and clarification on areas of disagreement would assist the parties or the court.

Hot-tubbing prior to trial is helpful to the courts, to assist in narrowing differences or at least explaining in detail the reasons for any disagreements in opinions.

Benefit from Experienced Litigation Support

If your company is facing a cross-border shareholder dispute, be sure to consult with an experienced forensic accountant for litigation support. Our team of experts at Fuller Landau is here to help. For more information, or to schedule a complimentary consultation, contact us today.


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