Expert evidence faces greater scrutiny by the courts

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.

“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.”