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Expert evidence faces greater scrutiny by the courts

Who is qualified?
|Written By Julius Melnitzer

The detailed attention and careful ruling given early in December by Justice Robert Stack of the Supreme Court of Newfoundland and Labrador to the admissibility of an expert’s report highlights a year in which issues surrounding expert evidence took centre stage in Canadian courts.

‘The problem is that lawyers on both sides of the bar know where to find that kind of expert,’ says Jerome Morse.

“This year, expert evidence was more than just a hot topic in the appellate courts,” says Jennifer Hunter of Lerners LLP in Toronto. “It was a year in which the very role of the expert was at the centre of at least a dozen appeals.”

Stack’s 17-page ruling came in Anderson v. Canada, a hotly contested proceeding involving five class actions including allegations of abuse in Newfoundland and Labrador’s residential schools for native Canadians. After close examination of the qualifications of Dr. Richard Enns of the University of Calgary, Stack ruled that only part of his report on the socio-historical aspects of the trial was admissible.

Not surprisingly, Stack relied on the Supreme Court of Canada’s decision earlier this year in White Burgess Langille Inman v. Abbott and Haliburton Co., a decision in which the high court emphasized the trial judge’s “gatekeeper” role in dealing with expert evidence.

“Expert evidence has been a thorny problem in the courts of many jurisdictions for about 150 years, and the attitude was particularly laissez-faire in Canada in the ’70s and ’80s at a time when our society was enamoured with science,” says John Olah of Beard Winter LLP in Toronto. “But White Burgess has opened the door much wider for challenging witnesses at the voir dire stage for bias and you have to wonder whether we will be moving toward an American-like procedure in civil cases that permits expert witness challenges at preliminary proceedings at the outset of trial and before the expert gets into the stand at trial.”

Attempts to tighten the screws in Canada go back to the SCC’s 1994 judgment in in R. v. Mohan.

Arguably, the jurisprudence that pre-dated White Burgess was only marginally successful in this respect.

“Unfortunately, dubious science has still been penetrating our courts,” Olah says. “Too often, both the plaintiffs and the defence bar utilize the same old experts saying the same thing time and time again — to the point where their credibility has dubious value in some cases.”

By way of example, Jerome Morse of Toronto’s Morse Shannon LLP, whose practice includes a focus on acting for plaintiffs in medical malpractice suits, cites an orthopedic surgeon who was notorious for using boilerplate templates as the basis of his evidence.

“In one case, this doctor forgot to substitute the name of the current plaintiff for that of a former plaintiff,” Morse explains. “The problem is that lawyers on both sides of the bar know where to find that kind of expert.”

Indeed, a recent study in the U.S., which has a more rigorous test for the admissibility of expert evidence than Canada, revealed that the average trial featured 3.1 experts.

It’s hardly that White Burgess and other recent cases have brought expert evidence to the point of extinction in Canada. Indeed, the White Burgess test sets a fairly low bar for admissibility. But expert qualifications are being scrutinized more closely.

“The SCC has cautiously and correctly [been] opening up the screening process to a broader range of situations,” Olah says. “What we’re seeing is the high tide receding, the genie being put back into the bottle to some degree.”

For her part, Hunter categorizes appellate jurisprudence in the past year as falling into three categories.

“White Burgess gives us the framework for analysis,” she says. “The second category deals with whether and how courts will view experts as necessary, reliable, or independent, and the third with the application of Ontario’s requirements for experts as set out in the Rules of Civil Procedure.”

In terms of how courts will view experts — the “gatekeeper” function — the three cases that stand out are the Ontario Court of Appeal’s decisions in Meady v. Greyhound Canada Transportation Group and Moore v. Getahun, and the SCC’s judgment in Mouvement laïque québécois v. Saguenay (City) .

In Meady, the appeal court affirmed a trial judge’s ruling that he did not require expert evidence to help him with the issue at hand. Mouvement laïque québécois affirmed that the mere appearance of bias does not suffice to exclude expert evidence (White Burgess also dealt with impartiality), and Moore v. Getahun entrenched counsel’s important part in ensuring that experts understand their responsibility to the courts by communicating with them through litigation-privileged consultations.

Moore fits in very well with the gatekeeper concept as the OCA not only confirmed that communications between counsel and expert were appropriate but encouraged them,” Hunter says.

On the procedural side, Westerhof v. Gee Estate stands out. “Westerhof involved an issue the Ontario bar had been struggling with since the amendments to the Rules of Civil Procedure in 2010,” Hunter notes.

“Who is an ‘expert’ according to the rules?” In Westerhof, the question arose in the context of the strict requirements of Rule 53, which requires an “expert” to deliver written reports that meet certain specifications. The OCA ruled that Rule 53 applied only to “litigation experts” retained by the parties to opine on issues raised in the litigation.

Rule 53 did not, however, apply to “participant experts.”                               

  • We need a public inquiry into the quality of the expert evidence

    Rhona DesRoches
    Quality of the expert evidence in Ontario’s courts has reached a new low in Bruff-Murphy v Gunawardena. Leaves the question of what will the next trier of fact do when or if faced with these adverse comments in the future - there’s no certainty that the issues in Bruff-Murphy will be brought up by future plaintiff lawyers. We cannot reach justice if the evidence is tainted by bias or where the purpose is purely to manipulate. Experts should be challenged before testifying and bogus or biased medical reports need to be challenged upon receipt and not years later at trial when the damage has been done to the victims trying to access insurer resources. Ontario needs a public inquiry into the quality of the medical evidence used in our courts and administrative tribunals - not just in the context of auto insurance claims. One can only imagine how the new LAT system will manage this wave of flawed medical evidence that will coming their way.
  • new LAT system versus WSIB

    Brian Francis
    RE: " One can only imagine how the new LAT system will manage this wave of flawed medical evidence that will coming their way."

    To the extent that the new LAT system seeks to emulate the WSIB tribunal/adjudication system; one can reasonably suppose the LAT adjudicators will turn a blind eye to shoddy expert medico-legal reports and partisan testimony proffered by rogue experts.
  • rogue experts

    Brian Francis
    In 2011 the then president of the Canadian Society of Medical Evaluators warned members (and long-time medico-legal expert evidence vendors) that "bias, amateurism and fraud" in the expert witness business might soon become "less tolerated" due to the increasing potential for mainstream press coverage and consequent "public scandal. The problem is as bad now as it was then. So is it only a matter of time till we see the same sort of public scandal (and widespread lack of trust in the integrity of the system) that gave rise to the Goudge Inquiry? And if so, will the next Inquiry accomplish more in terms of purging the rogue "hired gun" experts from the system?
  • adverse judicial comments

    Brian Francis
    Unless/until counsel always search for and seek to adduce all prior adverse/negative judicial comments aimed toward an expert's partisanship and/or lack of competency; the courts, particularly Ontario's personal injury/civil justice system, will never purge themselves of the long-lamented proliferation of "hired gun" experts. That said, unless triers of fact allow and consider the prior adverse comments of previous judges when performing their function as gatekeepers of expert evidence; the courts will continue to be the authors of their own misfortune in terms of wrongful decisions tainted (and unduly influenced) by highly partisan and or (under)unqualified rogue experts. It is stunning that so little was learned from the Goudge Inquiry in this regard given the central attention placed on "missed warnings" regarding Dr. Charles Smith - the first of which was Justice Dunn's 16 "warnings" in the form of adverse judicial comment aimed toward Dr. Smith.
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