In a decision a lawyer says is “huge,” an Ontario Court judge has found a government engineer may not testify as an expert witness due to questions about his independence as an employee of the prosecutor.
Justice Brent Knazan didn’t doubt whether Saeed Khorsand, an employee of the Ministry of Labour, had sufficient qualifications to give evidence. But Knazan found the engineer was “too involved” in the investigation of a drill-rig collapse accident at a construction site that resulted in one death and a serious injury. The judge also found Khorsand had behaved in a way that led him to believe he wouldn’t be able to testify without concerns about his impartiality.
“He has been too involved in the investigation leading up to the charges, the contacts with other witnesses and outside agencies and the unfolding of the trial after it began to provide a reliable objective opinion on a question that is so fundamental to the charges,” wrote Knazan in his April 21 ruling in a case involving Advance Construction Techniques Ltd.
Khorsand’s conduct during the proceedings only added to the judge’s doubts. For example, Khorsand left out some information about an abandoned water main from a report he had written for another engineer retained by the Ministry of Labour, the judge found. But on the day that engineer was to testify, Khorsand told him about the water main and wondered if that would change his expert opinion.
“But the combination of his intensive involvement in the investigation and his too enthusiastic following of the watermain issue in the middle of the trial lead me to conclude that Mr. Khorsand could not give an unbiased opinion on the root causes of the collapse of the rig to assist this court,” wrote Knazan.
Counsel for the defendant in the case says the ruling has broader implications for government departments that want to use their employees as expert witnesses.
“It’s huge. Many provincial government departments have in-house engineers or other technical people that they’d probably want to use as experts, but this ruling puts a bit of a damper on that,” says Norm Keith, a partner at Fasken Martineau DuMoulin LLP.
“In this case, the Ministry of Labour engineer is not allowed to be an investigator or a fact finder and also put on a different hat and be an independent, impartial engineering expert,” he adds.
The judge, however, was clear the court couldn’t disqualify an expert only on the basis that the person works for the same employer as the prosecutor. In this case, Khorsand wasn’t just an employee of the investigating body as in the situation of a police officer who’s an expert on drug deals, the judge said.
“He was in constant contact with the informant and lead investigator Mr. Duncan throughout the investigation. Mr. Duncan could not interpret the evidence without the assistance of Mr. Khorsand,” wrote Knazan.
“This puts him in a different position from an expert employed by either a ministry department or a police force who is asked for their opinion on a hypothetical fact situation that happens to correspond to the facts in the case.
“There is a reason why those witnesses are often asked as part of their qualifications if they have any contact with the case or had any knowledge of the case before being presented with the hypothetical.”
Keith says the judge did a thorough analysis in the case and made the right decision.
“I think the fact that there’s more caution being prescribed by the court before they let somebody be qualified as an expert is a good thing. I think it’s going to enhance the reliability of the evidence going in front of the court,” he says. “And I think it’s going to reduce the appearance that employees are just giving evidence to please their employers.”
Thomson Rogers partner David Germain, whose practice largely involves appearing before the Ontario Municipal Board, says it’s common for municipalities to use their own employees as expert witnesses in proceedings.
“Almost in every case, I’d say the municipality will have an in-house planner who will give evidence on behalf of the municipality at the hearing,” says Germain.
“Sometimes, they go and retain somebody else to do that kind of thing but often, as a matter of course, the in-house experts will be qualified.”
Knazan’s decision “doesn’t question that practice,” according to Germain.
“The decision makes it quite clear that just because the engineer in question was employed by the Ministry of Labour, that act in and of itself doesn’t diminish his ability to qualify as an expert,” he says.
To Germain, the disqualifier in this case wasn’t Khorsand’s deep involvement but the way he conducted himself.
“This decision is, I’d say, pretty fact-specific, turning on the specific conduct of that expert at trial,” he says.
In his decision, Knazan found he didn’t need to decide whether Khorsand’s deep involvement alone could disqualify him.
“That is because his identification with the prosecution did not stop with the commencement of the trial,” wrote Knazan.
“Even if his relation to the investigation does not amount to a lack of independence such as to make his opinion unreliable, events at the trial demonstrate conclusively that Dr. Khorsand identifies too closely with the prosecution to be able give an impartial opinion. As counsel for the ministry so stressed, a voir dire to determine expertise is fact specific.”
The law around the independence of expert witnesses is a constantly evolving one. According to Germain, the case doesn’t establish “a bright line” of when experts’ conduct would render them impartial but it does provide an example lawyers would want to learn from.