Canadian lawyers are divided over the efficacy of a British Supreme Court judgment that abolishes a 400-year-old rule granting expert witnesses immunity from suit over their participation in legal proceedings.
But Erik Magraken of MacIsaac & Co. in Victoria disagrees.
“The decision is a welcome development from the perspective of accountability,” he says. “Being an independent expert can be lucrative and plays an important role in our system.
And while most witnesses are fair, there’s not a lot of disincentive to rein in careless opinion if someone chooses to be intellectually dishonest.”
Jones involved a claim against a consultant clinical psychologist who had prepared an expert statement in the context of a personal injury dispute. The plaintiff alleged the expert had acted negligently in preparing the statement and that the claim had settled for a much lower figure than it would have otherwise.
The High Court, relying on the rule of expert immunity, struck the claim. But the Supreme Court abolished the rule by a 5-2 majority. It reasoned that there was no justification for maintaining immunity considering that the House of Lords had earlier abolished such protection for advocates in its decision in Hall v. Simons.
As the court saw it, the primary rationale for the immunity was the concern that an expert witness might be reluctant to give evidence against a client’s interest and in breach of the duty to the court if there was a risk of suit.
As was the case with lawyers, there was no conflict between the expert’s duty to the client and the duty to the court. Nor was there evidence that the immunity was necessary to secure an adequate supply of expert witnesses as the abolition of the rule protecting advocates had had no such impact.
But Barry Leon of Ottawa’s Perley-Robertson Hill & McDougall LLP says there’s a distinction between counsel and experts. “It is true that there is logic to saying that expert witnesses’ immunity from suit is not justified when advocates no longer have that immunity,” he says.
“However, it must be remembered that there is a strong move to recognize that expert witnesses have a primary duty to the court or arbitral tribunal. From that perspective, the result is somewhat of a less comfortable fit.”
As well, Forbes notes that the principle of absolute immunity has historically applied to all witnesses, not just experts. “I’m surprised that the Supreme Court would carve out an exception for experts instead of trying to narrow the breadth of the immunity in general,” she tells Law Times.
Forbes cites the issue of child custody assessors in family law cases facing lawsuits by the losing parent. “Even where the immunity exists, the experts have to hire a lawyer and spend time, money, and emotional energy to defend themselves,” she says.
The expert immunity rule came before the Ontario Court of Appeal in the 2007 case of Reynolds v. Kingston (Police Services Board) that dealt with the infamous Ontario forensic pathologist Charles Smith.
“The Court of Appeal decided that the matter should not be determined on a preliminary motion, but the bench confirmed that the rule was well-established in the common law on the basis that the proper administration of justice requires that witnesses have no fear of retaliatory suits,” Forbes says.
As she points out, the core issue that the Court of Appeal left to the trial judge was whether Smith’s conduct fell within the scope of the protection rather than whether the immunity existed.
“I believe that Canadian courts will try to narrow the scope of the immunity instead of carving out categories of witnesses who aren’t subject to it,” she says.