http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/72207/index.do 
Blenk Development Corp. v. The Queen (June 4, 2014 – 2014 TCC 185) was a decision on a motion brought by counsel for the appellant to permit an expert witness to attend at the examination for discovery of the respondent’s witness in order to assist counsel:
[2] The Appellant, Blenk Development Corp. (“Blenk”), brings this motion for an order of this Court to permit an expert to attend at the examinations of discovery by the Appellant of the Respondent’s representative.
[3] The Minister reassessed Blenk and disallowed deductions for interest expenses claimed under paragraph 20(1)(c) of the
Income Tax Act (the “
Act”). The deduction was disallowed on the basis that the rate of interest utilized by Blenk on a non-arm’s length loan transaction, involving a friend of the 100% shareholder principal of Blenk, was unreasonable given the Minister’s assumed terms and conditions, timing and the market risks associated with the loan (the “comparative factors”). The deduction has also been denied through assumptions relating to the non-existence of the debt and loan in the first instance and its characterization as a sham.
The respondent’s counsel’s argument in opposition boiled down to the assertion that the matters at issue were simple and that expert advice would be unnecessary and irrelevant.
The respondent’s counsel did not convince the court, in large part because his own client had used an expert economist in framing the assessment before the court:
[15] On the face of the evidence before the Court, in arriving at the reassessing position, the Minister utilized the services of the CRA International Tax Directorate’s own on-staff economist. The report generated was on its face the basis for the factual assumptions regarding the unreasonable, unrestrained and artificial interest rates allegedly used by the Appellant. The Respondent has referenced that report, amendments and subsequent updates as and when needed. Apart from that point, the methodology of a transfer pricing model was used and forms a critical part of one the bases upon which the interest expense was disallowed, albeit, at its generically highest level as being “unreasonable”. The comparative factors and the economic analysis of same to disallow the Appellant’s claimed interest expense deduction embed the requirement of such expert knowledge in one of the issues in dispute before the Court in this appeal. Subject to the restrictions which follow, the need, concern of counsel and nature of assistance are established sufficiently to warrant the presence of the sought expert at examinations for discovery.
The court also rejected the contention of counsel for the respondent that the presence of the expert on the examination for discovery would be likely to turn him into an advocate for the appellant rather than an impartial expert witness:
[19] In concluding, counsel for the Respondent asserts the expert’s presence at the examination for discoveries in this matter will transform the expert into an advocate, and given the possibility he may be an expert witness at trial, taint the required independent and objective duty outlined in this Court’s Expert Witness Code of Conduct (“Expert Code of Conduct”).
[20] The Respondent’s arguments and submissions on this point have some merit. They are also premature and otherwise generally mitigated by the imposition of certain procedural requirements at this stage.
[21] The new Expert Code of Conduct relates specifically to an expert’s preparation and subsequent testimony regarding an expert’s report. Any arguments to be marshalled by a party against a proposed expert witness report logically arise when and if the report is served on opposing counsel. The case of Blake Moore dealt with an inappropriate expert report arising from “strategic” revisions and causal, factual conclusions, rather than exclusion on the basis of the expert’s presence at examinations for discovery. Moreover, inappropriate or erroneous factual assumptions in any export report or testimony are anathema to credibility and are the veins of gold mined by opposing counsel in cross-examination. However, to the extent this expert witness who shall be present at examinations for discovery seeks to be an expert witness at trial, then, in such an event a case management judge may deal with this argument of prejudice and non-compliance with the Expert Code of Conduct at that time. The content and context of the expert report will be central to that determination precisely as such issues were in Blake Moore. As such, the Respondent’s rights and the Court’s procedures on that point will be protected.
The motion was granted but the court imposed a set of protective provisions as well as a special order as to costs:
[23] For the foregoing reasons, the motion is granted and the expert, Mr. Brad Rolph, shall be permitted to attend the Appellant’s examinations for discovery of the Respondent’s representative provided that:
a. Mr. Rolph shall sign an express covenant addressed to the Respondent and this Court agreeing to comply with the implied undertaking rule; with such form to be drafted by Respondent’s counsel to the reasonable satisfaction of Appellant’s counsel;
b. the expert shall ask no direct questions nor shall he speak during the official examination process; and,
c. any assistance provided to counsel shall be delivered in advance, by inconspicuous notes during the official examination process or during off the record and regularly scheduled breaks.
[24] Given the nature of the motion, costs are fixed at $1,000.00 in favour of the Appellant, but are reserved as to payment in the event of the cause, or, as addressed further, when raised by counsel, before any case management or trial judge of this Court in the event that an issue is raised concerning prejudice caused by an expert report subsequently served and authored by the same expert, Mr. Rolph.