{"id":6086,"date":"2022-01-06T15:49:54","date_gmt":"2022-01-06T20:49:54","guid":{"rendered":"https:\/\/perlaw.ca\/?p=6086"},"modified":"2023-08-21T16:49:20","modified_gmt":"2023-08-21T20:49:20","slug":"how-and-when-to-safeguard-the-independence-of-the-expert","status":"publish","type":"post","link":"https:\/\/perlaw.ca\/fr\/2022\/01\/06\/how-and-when-to-safeguard-the-independence-of-the-expert\/","title":{"rendered":"How and When to Safeguard the Independence of the Expert"},"content":{"rendered":"
\n

This paper highlights cases where an Ontario Court held that expert evidence was not admissible for not meeting the test set out in\u00a0White Burgess Langille Inman v. Abbott and Haliburton Co<\/em><\/a>., 2015 SCC 23 (\u201cWhite Burgess<\/em>\u201d). It will:<\/p>\n

    \n
  1. review the test for admissibility as set out in\u00a0White Burgess<\/em>;<\/li>\n
  2. discuss four subsequent and notable Ontario cases where expert evidence was not admitted; and<\/li>\n
  3. provide practical tips on how Counsel can safeguard the independence of the expert.<\/li>\n<\/ol>\n

    (I) THE LEGAL TEST FOR ADMISSIBILITY OF AN EXPERT WITNESS<\/h2>\n

    In\u00a0White Burgess<\/em>,\u00a0at paras 23-24<\/a>, the Supreme Court of Canada provided clarity and guidance regarding admissibility of expert evidence. Cromwell J., writing for the Court, adopted the two-step approach in\u00a0R. v. Abbey<\/em>,<\/em><\/a>\u00a02009 ONCA 624,\u00a0<\/em>with minor adjustments:<\/p>\n

      \n
    1. \u201cAt the first step the proponent of the evidence must establish the threshold requirements of admissibility.\u201d These are the four traditional \u201cthreshold requirements\u201d established in\u00a0R. v. Mohan<\/em><\/a>, [1994] 2 SCR 9: 1) relevance; 2) necessity in assisting the trier of fact; 3) the absence of an exclusionary rule; and 4) a properly qualified expert. And, \u201cin addition, in the case of an opinion based on novel or contested science or science used for a novel purpose, the reliability of the underlying science for that purpose\u2026\u201d<\/li>\n
    2. The second component is a \u201cdiscretionary gatekeeping step\u201d where the \u201cjudge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks.\u201d It is a cost-benefit analysis where the Court must determine whether the expert evidence should be admitted because its probative value outweighs its prejudicial effect.<\/li>\n<\/ol>\n

      As Cromwell J. observed,\u00a0at para 33<\/a>, \u201cthere is a broad consensus about the nature of an expert\u2019s duty being to the Court. There is no such consensus, however, about how that duty relates to the admissibility of an expert\u2019s evidence.\u201d This raised two important questions in\u00a0White Burgess<\/em>\u00a0namely \u201cshould the elements of this duty go to admissibility of this evidence rather than simply to its weight? And, if so, is there a threshold admissibility requirement in relation to the\u00a0independence and impartiality?\u201d<\/p>\n

      Cromwell J. confirmed,\u00a0at para 40<\/a>, that the potential bias of an expert must be considered in the admissibility of the expert\u2019s testimony at the initial threshold inquiry and once that threshold is met, it must also be considered as the Court exercises its gatekeeping role and its discretion to exclude evidence.<\/p>\n

      In other words, as Cromwell J. described,\u00a0at para 2<\/a>: \u201cExpert witnesses have a special duty to the Court to provide fair, objective and non-partisan assistance. A proposed witness who is unable or unwilling to comply with this duty is not qualified to give expert opinion evidence and should not be permitted to do so.\u201d<\/p>\n

      (II) SINCE WHITE BURGESS, WHEN HAS EXPERT EVIDENCE NOT BEEN ADMITTED IN LEADING ONTARIO CASES AND WHY?<\/h2>\n

      Since\u00a0White Burgess,\u00a0<\/em>Ontario Courts have discussed why expert evidence should be rejected for failing to satisfy the test for admissibility set out above in at least four significant cases.<\/p>\n

      In\u00a0Bruff-Murphy v. Gunawardena<\/em><\/a>,\u00a0<\/em>2017 ONCA 502 (\u201cBruff-Murphy<\/em>\u201d),\u00a0<\/em>the Court of Appeal found that the trial judge should have excluded the expert\u2019s testimony for the defence because the expert crossed the line from an objective witness to an advocate for the defence. Despite his concerns, the trial judge did nothing to exclude the opinion evidence or alert the jury about the problems with the expert\u2019s testimony.<\/p>\n

      The Court of Appeal,\u00a0at para 2<\/a>, specifically noted that:<\/p>\n

      \u201c\u2026Appellate courts have repeatedly instructed\u00a0trial judges that they serve as gatekeepers when it comes to the admissibility of expert opinion evidence<\/strong>. They are required to carefully scrutinize, among other things, an expert witnesses\u2019 training and professional experience, along with the necessity of their testimony in assisting the trier of fact,\u00a0before<\/u>\u00a0the expert is qualified to give evidence in our courts\u2026.\u201d (<\/strong>Emphasis added.)<\/p>\n

      In ordering a new trial,\u00a0at para 5<\/a>, the Appellate Court noted that, had the trial judge properly discharged his gatekeeper duty at the qualification stage, \u201c\u2026he would have concluded that the risks of permitting the expert to testify far outweighed any potential benefit from the proposed testimony.\u201d In addition, the expert crossed the boundary of acceptable conduct and descended into the fray as a partisan advocate during his testimony. In these circumstances, the trial judge failed to fulfill his ongoing gatekeeper function and exclude in whole or in part the expert\u2019s unacceptable testimony. As the trial judge did not fulfill an ongoing gatekeeping role, the Appellate Court,\u00a0at para 6<\/a>, held that trial fairness was irreparably compromised.<\/p>\n

      As noted in the\u00a0Bruff-Murphy<\/em>, the trial judge must be vigilant in determining whether the expert meets the first component of the test set out in\u00a0White Burgess\u00a0<\/em>\u2013 namely, does the evidence meet the threshold of admissibility. However, even if the first part of the test is met, it is still possible that the expert will be subsequently disqualified; part of the trial judge\u2019s ongoing residual discretion is to exclude prejudicial evidence. This is an\u00a0ongoing<\/u>\u00a0discretion that must be exercised throughout the trial.<\/p>\n

      In reviewing why the expert evidence was not allowed, in\u00a0Bruff-Murphy<\/em>, the following are notable examples of how the expert compromised his independence:<\/p>\n

        \n
      1. The expert\u00a0attacked the accused\u2019s credibility\u00a0<\/strong>by making comments in his report of instances where the accused gave him certain information, and this information contradicted what he later found in her medical records. Counsel for the defence submitted that this exercise did not meet the test in\u00a0Browne v. Dunn<\/em>, (1893) 6 R 67 (U.K. H. L.) as it did not give the accused the opportunity to explain any inconsistencies.<\/li>\n<\/ol>\n<\/div>\n
        \n
          \n
        1. The expert\u2019s comments about the witness\u2019s credibility were\u00a0close to the task of the jury<\/strong>.<\/li>\n
        2. The expert testified that he discarded any notes he may have made during his interview with the accused. He therefore\u00a0did not have supporting documentation\u00a0<\/strong>for a number of his comments.<\/li>\n
        3. He appeared\u00a0biased<\/strong>, only considering one side of the story.<\/li>\n
        4. His methodology was questionable<\/strong>. The vast majority of the expert\u2019s evidence was not of a psychiatric nature which was his speciality of expertise. Instead of staying within the bounds of his expertise, which was to provide an independent assessment of the accused\u2019s psychiatric condition, he recited inconsistencies between what the accused said in an independent medical examination and what her medical records revealed.<\/li>\n<\/ol>\n

          In a second case,\u00a0Pentalift Equipment Corporation v. 1371787 Ontario Inc<\/em><\/a>., 2019 ONSC 4804 (\u201cPentalift<\/em>\u201d),<\/em>\u00a0the expert witness\u2019s evidence was rejected by the trial judge, almost in its entirety, as he did not critically question any of the information provided to him by the client retaining him. Therefore, he lost his objectivity because he was too aligned with the client\u2019s wishes. The expert also did not follow or apply the standard methodology in preparing his report, and took a number of \u201cshortcuts\u201d to meet his client\u2019s time deadline (at para 89<\/a>).<\/p>\n

          In a third case,\u00a0Parliament v. Conley<\/em>\u00a0and Park<\/em><\/a>, 2019 ONSC 3995 (\u201cParliament<\/em>\u201d), one expert witness was rejected based on bias. The physician for the defence was biased as she did not consider the opposing party or the Plaintiff\u2019s version of events. At times, she refused to acknowledge that there was another possible version of the facts. In fact, she \u201chigh-handedly\u201d rejected the Plaintiff\u2019s evidence without offering any semblance of an explanation (at para 36<\/a>).<\/p>\n

          On appeal, in\u00a0Parliament v. Conley<\/em>,<\/a>\u00a02021 ONCA 261,\u00a0at para 2<\/a>, the Plaintiffs argued that another expert, the only expert on the standard of care for the Respondents (a different physician than the one mentioned above), gave evidence that went beyond the scope of his expertise, failed to demonstrate impartiality, and usurped the jury\u2019s proper role in opining on credibility and some of the factual questions. The Court of Appeal specifically noted,\u00a0at para 51<\/a>, that one of the dangers of experts who give evidence that oversteps their boundaries is \u201cthe risk that a jury, faced with difficult issues of credibility and reliability and a well-presented expert opinion, will abdicate its fact-finding role on the understandable assumption that a person labelled as an expert by the trial judge knows more about his or her area or expertise than do the individual members of the jury\u2026there was a risk that the members of the jury would accept Dr. Bruce\u2019s credibility and reliability assessments, rather than\u00a0assess the evidence of the witnesses and reach their own conclusions.\u201d<\/p>\n

          As the trial judge did not instruct the jury to disregard the expert\u2019s evidence in relation to the credibility and reliability of two doctors and a third person in her charge, the Court found there was a miscarriage of justice that justified a new trial:\u00a0at paras 67-71<\/a>.<\/p>\n

          The Court of Appeal in\u00a0Parliament v. Conley<\/em>,\u00a0at para 70<\/a>, quoted from\u00a0Bruff-Murphy<\/em>,\u00a0at para 72<\/a>: \u201c[t]his Court has a responsibility to protect the integrity of the justice system. This is not a \u2018no harm, no foul\u2019 situation.\u201d It further noted as follows,\u00a0at para 47<\/a>: \u201cThe continuing gatekeeper role of a trial judge includes the continuation of the residual discretion to exclude evidence when they are not satisfied that the testimony\u2019s probative value exceeds its prejudicial effect.\u201d<\/p>\n

          In a fourth case,\u00a0Barker v. Barker<\/em>,<\/a>\u00a02019 ONSC 5906 (\u201cBarker<\/em>\u201d), the expert witness for the defence was biased in favour of the Defendants. Although the expert was skilled and respected in his field, his professional association with the very institution whose programmes were being criticized by the Plaintiffs resulted in his disqualification. The trial judge found,\u00a0at para 30<\/a>: \u201cThe probative value of his report and potential testimony is rather low since his objectivity as an expert is in serious doubt; that, in turn, makes the prejudicial value of his evidence substantially higher than the probative value and effectively disqualifies him from giving expert evidence at trial.\u201d<\/p>\n

          In these four cases, it is important to note\u00a0when\u00a0<\/strong>the expert witness\u2019s testimony was rendered inadmissible. In each case, it was either at trial or appeal as follows:<\/p>\n

            \n
          1. In\u00a0Bruff-Murphy<\/em>, it was at the\u00a0appeal\u00a0<\/strong>when the Court of Appeal found that the trial judge failed to properly discharge his gatekeeper duty at the\u00a0qualification stage<\/strong>\u00a0of the defence\u2019s expert. The Court allowed the plaintiff\u2019s appeal and ordered a new trial as a result.<\/li>\n
          2. In\u00a0Pentalift<\/em>, it was not until the\u00a0expert was cross-examined at trial<\/strong>\u00a0that all the deficiencies in his report came to light. The trial judge rejected the defence\u2019s expert\u2019s evidence almost in its entirety.<\/li>\n
          3. In\u00a0Parliament<\/em>, in the\u00a0context of a voir dire at trial<\/strong>, without the jury, the trial judge<\/li>\n<\/ol>\n

            allowed the plaintiff\u2019s motion to disqualify a physician tendered by the defence. On the appeal, a new trial was ordered as the sole witness for the respondents on the issue of standard of care exceeded the admissible scope of his evidence in a way that was highly prejudicial to the appellants.\u00a0A new trial was ordered at the appeal<\/strong>.<\/p>\n

              \n
            1. In\u00a0Barker<\/em>, as a result of a\u00a0mid-trial motion<\/strong>, in which the Plaintiffs opposed the<\/li>\n<\/ol>\n

              qualification of one of the Defendant\u2019s proposed witnesses, the trial judge found that the proposed witness should be disqualified as an independent witness.<\/p>\n

              As it is often not until the trial stage, and in two cases at the appeal level, that expert evidence is rejected, the cost and prejudice to a party who has retained an expert at the initial stages of an action, or during the action, only to find out at the end of the proceeding that the expert\u2019s testimony is disqualified or not allowed, in whole or in part, is very costly.<\/p>\n

              (III) PRACTICAL TIPS FOR COUNSEL IN PROTECTING THE INDEPENDENCE AND RELIABILITY OF EXPERT EVIDENCE<\/h2>\n

              What are the implications for Counsel when an expert is disqualified? In\u00a0Pentalift<\/em>, the trial judge rejected most of the expert\u2019s testimony and then admonished Counsel, as follows,\u00a0at para 97<\/a>:<\/p>\n<\/div>\n

              \n

              \u201c\u2026 counsel have an obligation to ensure that an expert understands his or her unique role in a trial and that they are there to assist the Court and to prepare the witness for testimony. This, of course, is to be distinguished from any interference with the substance of the expert\u2019s opinion, which must be his or her independent analysis and conclusion.\u201d<\/p>\n

              Given these remarks and the case law that has evolved since\u00a0White Burgess<\/em>, there is an onerous responsibility on Counsel to select and choose an independent expert who understands and accepts their duties.<\/p>\n

              There is an ongoing obligation to prepare that witness for testimony to assist the trier of fact. As was observed by Justice Tzimas in the\u00a0Pentalift\u00a0<\/em>case,\u00a0at para 98<\/a>, who reviewed and cited Justice Paciocco\u2019s article, \u201cUnplugging Jukebox, Testimony in an Adversarial System: Strategies for Changing the Tune on Partial Experts\u201d (2009) 34 Queen\u2019s L. J. 565 at 600-608, Counsel should be reminded to guard against:<\/p>\n

                \n
              1. Selection bias (why the expert is chosen);<\/li>\n
              2. Association bias (whether the expert might demonstrate a desire to do something serviceable for his or her own customer\/ employer);<\/li>\n
              3. Professional bias (whether an expert might be defending his or her own research or own credibility);<\/li>\n
              4. Noble cause distinction (whether the expert might demonstrate a willingness to distort evidence, believing that he or she is on the side of good); and<\/li>\n
              5. Dogmatism and rigidity.<\/li>\n<\/ol>\n

                Any one or more of these flaws will render the expert\u2019s views unreliable and useless. When Counsel fail to guard against these risks, they run the risk of bringing the administration of justice into disrepute.<\/p>\n

                After reviewing the\u00a0case law\u00a0and the points above, it bears emphasizing that Counsel should:<\/p>\n

                  \n
                1. Ensure that the expert has the requisite credentials for the mandate requested and the scope of the task.<\/li>\n
                2. \u00a0Ensure that the expert has the time to properly prepare a report and provide an opinion.<\/li>\n
                3. Reinforce with the expert that they should not take shortcuts and that they follow the standard methodology as required in their profession.<\/li>\n
                4. Provide specific instructions that form the expert\u2019s retainer, and ensure that the expert\u2019s report is on point, with no tangents or issues addressed that the expert is not qualified to address.<\/li>\n<\/ol>\n<\/div>\n
                    \n
                  1. Make sure that the expert has all the salient facts.<\/li>\n
                  2. In preparing the expert to testify at trial, emphasize again that the expert\u2019s testimony must be relevant and necessary in assisting the trier of fact.<\/li>\n
                  3. Know where the onus or burden lies regarding a lack of independence \/ bias of an expert witness. As explained in\u00a0Parliament SCJ,\u00a0<\/em>at para 16<\/a>, citing to\u00a0White v Burgess<\/em>, the party opposing the admission of the expert evidence has the burden \u201cto show that there is a realistic concern that the expert\u2019s evidence should not be received because the expert is unable and\/or unwilling to comply with [their] duty.\u2026Once a realistic concern is shown, the party seeking to have the expert admitted has the burden to establish on a balance of probabilities that the expert should nonetheless be allowed to give evidence.\u201d<\/li>\n
                  4. When dealing with an opponent\u2019s expert, continue to ask about draft reports and about\u00a0the expert\u2019s assumptions used (and substantiation of same) on cross-examination. Cross- examination remains one of the best tools to undermine expert\u2019s reports that are not independent or are not factually correct.<\/li>\n<\/ol>\n

                    I hope these practical tips are of assistance and enable lawyers to avoid the consequences of having an expert disqualified at trial or on appeal. At the trial stage, or the appellate level, it is\u00a0probably too late to do any remedial work.<\/p>\n","protected":false},"excerpt":{"rendered":"

                    This paper highlights cases where an Ontario Court held that expert evidence was not admissible for not meeting the test set out in\u00a0White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (\u201cWhite Burgess\u201d). It will: review the test for admissibility as set out in\u00a0White Burgess; discuss four subsequent and notable Ontario cases […]<\/p>\n","protected":false},"author":3,"featured_media":6770,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"wds_primary_category":0,"wds_primary_expertise_area":0,"footnotes":""},"categories":[82],"tags":[],"class_list":["post-6086","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-publication","expertise_area-family","expertise_area-personal-legal-needs"],"acf":[],"_links":{"self":[{"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/posts\/6086","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/comments?post=6086"}],"version-history":[{"count":1,"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/posts\/6086\/revisions"}],"predecessor-version":[{"id":6087,"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/posts\/6086\/revisions\/6087"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/media\/6770"}],"wp:attachment":[{"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/media?parent=6086"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/categories?post=6086"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/perlaw.ca\/fr\/wp-json\/wp\/v2\/tags?post=6086"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}