Expert Testimony Around the World:

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1 Expert Testimony Around the World: Getting the Straight Goods from Expert Witnesses John A. Olah Beard Winter LLP 130 Adelaide Street West Suite 701 Toronto, Ontario M5H 2K4 (416)

2 John A. Olah is a senior litigation partner at the law firm of Beard Winter LLP in Toronto. He defends a variety of complex tort claims including product liability claims, sports injuries, bar liability litigation, and private international law cases. Mr. Olah has litigated a number of leading cases including Club Resorts Ltd. v. Van Breda in which the Supreme Court of Canada modernized the law as to when Canadian courts can take jurisdiction over torts occurring abroad. He recently represented the Canadian Defence Lawyers before the Ontario Court of Appeal in Moore v. Getahun, a case dealing with the propriety of communication between an expert and the briefing lawyer. And he acted in Groia v. The Law Society of Upper Canada, where the issue before the Court of Appeal was as to when does zealous advocacy cross the line and becomes professional misconduct. Mr. Olah is the author of the Art and Science of Advocacy, a two-volume book on a trial advocacy. The author would like to thank Mr. Munish Mehta for his invaluable assistance in the preparation of this paper.

3 Expert Testimony Around the World: Getting the Straight Goods from Expert Witnesses Table of Contents I. Introduction...5 II. Do I Need an Expert?...5 III. Admissibility of Expert Evidence...6 A. Stage 1 The Pre-Conditions to Admissibility...6 B. Stage 2 The Cost Benefit Analysis...7 IV. The Ultimate Issue Rule...8 V. Further Measures to Tighten Control Over Expert Evidence...8 A. The Woolf Report...8 B. The Osborne and the Goudge Report...9 C. The Amendments to the Rules of Civil Procedure...9 VI. White Burgess Langille Inman v. Abbott and Haliburton Co...11 VII. How Many Experts Can You Call?...12 VIII. Counsel s Review of the Draft Report with the Expert...13 IX. Final Thoughts...13 Endnotes...14 Expert Testimony Around the World: Getting the Straight Goods... Olah 3

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5 Expert Testimony Around the World: Getting the Straight Goods from Expert Witnesses I. Introduction The debate over expert witnesses and their testimony is not new. It is has been the subject of discussion for over 100 years. A judge of the U.S. Supreme Court lamented almost 150 years ago: 1 experience has shown that opposite opinions of persons professing to be experts may be obtained to any amount; and it often occurs that not only many days, but even weeks are consumed in examinations to test the skill or knowledge of such witnesses and the correctness of their opinions, wasting the time and wearying the patience of both court and jury, and perplexing instead of elucidating the questions involved in the issue. Similarly, Lord Chief Justice Campbell, in charging a jury in 1856 in a murder case, cautioned: 2 With regard to the medical witnesses, I must observe that, although there were among them gentlemen of high honor, consummate integrity, and profound scientific knowledge, who came here with a sincere wish to speak the truth, there were also gentlemen whose object was to procure an acquittal of the prisoner. It is, in my opinion, indispensable to the administration of justice that a witness should not be turned into an advocate, nor an advocate into a witness. As can be seen from these quotes, the courts have been grappling with the problem of expert witnesses for a very long time. In the last 25 years or so, Canada, the United Kingdom, the United States and Australia have all addressed this concern differently. For example, in 1994, shortly after the development of the Daubert rule, the Supreme Court of Canada crafted the Mohan rule imposing a gatekeeper function on trial judges. In Canada, there have been several major studies which have looked at measures about how to improve this important aspect of the justice system. 3 As a result of the Osborne Report, several important changes to the Rules of Civil Procedure dealing with expert evidence were implemented. In England, the Woolf Report made a number of recommendations which resulted in key changes to the English expert witness system. In the United States, the Supreme Court addressed the problem by creating more stringent rules on the admissibility of expert evidence. Shortly after the Daubert and Kumho Tire decisions, the Federal Rules of Civil Procedure were amended and imposed requirements on the content of expert reports. In 2004, the Federal Court of Australia implemented Guidelines for Expert Reports which, like Ontario s Rule 53.03(2.1), mandated the contents of the expert s report. In short, there has been a re-thinking of how expert evidence should be handled in a number of the common law jurisdictions in an effort to overcome the concerns associated with expert evidence. In Canada, expert evidence has received closer scrutiny at the admissibility stage and additional procedural safeguards have been implemented to ensure the accuracy of expert evidence. As well, there has been an emphasis on the trial judge s gatekeeping role. 4 This paper discusses some of the legal developments relating to expert evidence in Canada, and the various substantive and procedural safeguards that have been built into the process. II. Do I Need an Expert? The first question you have to ask yourself is this: do I really need an expert for this case? Recent Canadian case law in this area has clarified when expert evidence is necessary. The general rule is that the nature of the standard of care in cases involving a professional such as a doctor, lawyer or police officer will generally require expert evidence. 5 There are two exceptions to this rule. First, expert evidence is not required Expert Testimony Around the World: Getting the Straight Goods... Olah 5

6 where the case involves non-technical matters that an ordinary person can understand. Alternatively, where the defendant s egregious conduct has clearly fallen short of the standard of care then expert evidence is not needed. 6 It is not always necessary to lead expert evidence to prove the standard of care in other cases as the trial judge or the jury can use common sense to arrive at the standard based on the trier of fact s experience and taking into account relevant legislation, policies or custom. It is only when the issue is beyond the common understanding of the judge or jury that expert evidence will be required to determine the appropriate standard of care. 7 If you do try to adduce evidence that is deemed by the trial judge to be unnecessary, you may be barred from calling the evidence. 8 As a matter of strategy, it is important to consider whether you should call expert evidence as your failure to do so may result in the trial judge or the jury imposing a standard of care which is at odds with industry practice or common sense. 9 Alternatively, the court may find against you for failing to lead necessary evidence. III. Admissibility of Expert Evidence In R. v. Mohan, 10 the Supreme Court of Canada articulated the modern test for admissibility of expert evidence in Canada. Previously, there had been less stringent approach to the admission of expert testimony. 11 Several considerations drove this change. First, there was the concern that expert evidence would be misused and would distort the fact finding process. As Sopinka J. pointed out in Mohan: 12 [d]ressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves. Another concern was that new scientific evidence was coming forward and that this testimony needed closer scrutiny. Finally, there was concern that expert evidence is highly resistant to effective crossexamination by counsel who are not experts in the field. 13 However, expert evidence is a critical element of the litigation process and therefore the challenge for the courts is how to properly control the admissibility of this testimony. The Ontario Court of Appeal explained in R. v. Abbey 14 that the Mohan test involves a two-step approach to the admission of expert evidence. At the first stage, the party calling the evidence must show the four preconditions to admissibility. At the second stage, the inquiry focuses on a cost benefit analysis of the proposed evidence. The Supreme Court of Canada adopted the Abbey two stage analysis with minor modifications in White Burgess Langille Inman v. Abbott and Haliburton Co. 15 A. Stage 1 The Pre-Conditions to Admissibility At this stage, the proponent of the expert evidence must show four elements: (i) relevance, (ii) the evidence is necessary to assist the trier of fact, (iii) the evidence does not violate one of the exclusionary rules and (iv) the expert has the necessary qualifications. Relevance, that is legal relevance, must be shown. The party calling the expert must demonstrate that the proposed opinion testimony tends to establish an issue of fact in the case. 16 Once legal relevance has been shown then the Court must move to the next element to assess whether the expert evidence will assist the Court. It must be shown that the expert evidence is necessary in the sense that it will provide information 6 Product Liability February 2017

7 to the trier of fact which is likely outside the judge s or the jury s experience and knowledge. In other words, expert evidence will be admitted where the area is not likely to be understood by the average person. 17 Canadian courts have been reluctant to admit expert testimony where the trier of fact was capable of making the necessary determination. It is for this reason that evidence such as polygraph evidence has been excluded 18 and evidence of a psychologist as to the frailties of eye witness identification has been held inadmissible. 19 Oath helping under the guise of expert evidence will not be permitted. Next, the expert evidence may be excluded if the proposed testimony breaches one of the exclusionary rules, for example in a criminal case, the expert evidence is led for the purpose of showing the accused s disposition to commit the charge before the court. It must be remembered that the Mohan rule was fashioned in the crucible of criminal law and this element will generally not play a significant role in a civil case. Finally, the party calling the expert must show that the witness has the necessary qualifications. The requisite specialized knowledge may come from the expert s education or experience. As long as the expert had the necessary specialized knowledge, his or her lack of practical experience in the field will go to credibility and not admissibility. Just because the expert has the requisite expertise that is not the end of the story. You have to be sure that you have the right expert, namely that the issue falls within the expert s area of knowledge 20 and that your expert has the requisite subject matter knowledge. B. Stage 2 The Cost Benefit Analysis At this stage of the admissibility hearing the court will carry out a cost-benefit analysis. This involves an assessment of whether the expert evidence is sufficiently beneficial to the trial process to warrant its admissions despite the potential harm to the trial process that may flow from its reception. 21 On the benefit side of the equation, the trial judge must consider the probative value of the evidence and the significance of the issue for which the evidence is being adduced. In this process, the trial judge must look at the probative value of the evidence which also involves looking at the reliability of the evidence. This involves not only the substance of the evidence but as well the methodology used by the witness at arriving at the opinion. As well, the trial judge must also consider the witness s expertise and whether the witness has been impartial and objective. It is important to remember that in performing the gatekeeper function, the trial judge is dealing with admissibility and not what weight should be given to the evidence. Traditional concerns as to credibility rest with the jury. The Supreme Court of Canada has emphasized on several occasions the importance of the gatekeeper function and that a trial judge should not simply default to simply admitting the expert evidence. This gatekeeping process was perhaps best explained by Watt J.A. in R. v. C.(M.) 22 as follows: To determine the benefits associated with the introduction of expert opinion evidence, the judge considers the probative value of the evidence, the significance of and the issue to which the evidence is relevant. Potential probative value includes an assessment of the reliability of the evidence, not merely of its subject-matter, but also the expert s methodology, expertise and objectivity: Abbey, at para. 87. On the cost side, the trial judge considers the consumption of time, prejudice and confusion. The trier of fact may not be adequately equipped to effectively and critically assess the evidence. The underlying material may be complex, the witness jargon impenetrable, and the evidence resistant to effective cross-examination: Abbey, at para. 90. In short, the Daubert analysis as to the reliability of the evidence is assessed at this second stage or at the cost-benefit analysis stage. Expert Testimony Around the World: Getting the Straight Goods... Olah 7

8 As part of this gatekeeping function, the trial judge, independent of counsel, has a duty to ensure that the expert stays within the proper bounds of his or her expertise and that the testimony is properly the subject matter of expert evidence. If during the testimony, the expert strays into an area outside the expert s qualifications or gets into anecdotal or irrelevant evidence, or advances evidence with prejudicial value that outweighs its probative value, then the trial judge must intervene. 23 This is the case even if defense counsel fails to object. In some cases a remedial instructions may be necessary instructing the jury to disabuse their minds of the inadmissible evidence. 24 One final point. This test for the admissibility of expert evidence also applies at a Summary Judgment motions 25 and other stages of the criminal, civil and administrative proceedings where expert evidence is sought to be admitted. IV. The Ultimate Issue Rule Although the ultimate issue rule, the rule preventing an expert from testifying on the very issue that the judge or jury must decide, is no longer operative in Canada, 26 it still lives on in another manner. The closer the expert testimony comes to the ultimate issue, the greater scrutiny must be given to the testimony. 27 Again, the concern here is that powerful expert evidence not distort the fact finding process because the leap from the expert s conclusion to the issue before the court can be a very short step. As well, the trial judge has discretion to exclude the conclusory statements where the opinion can be given just as accurately and in less conclusory terms in order to prevent the risk of the jury not carrying out an independent analysis and bowing to the expert s opinion. 28 V. Further Measures to Tighten Control Over Expert Evidence A. The Woolf Report Lord Woolf, who at that time held the position of Master of the Rolls and later Lord Chief Justice, reviewed the British civil justice system in His report resulted in the consolidation of the various existing rules of civil procedure for England and Wales. 29 One area that received specific attention was expert evidence, which Lord Woolf considered to be one of the major generators of unnecessary cost in civil litigation. 30 Lord Woolf was concerned that experts sometimes took on the role of partisan advocates. 31 He noted that the expert s lack of objectivity could be a serious problem and that it may sometimes arise from improper pressure on experts by lawyers. 32 Lord Woolf s recommendations on expert witnesses were subsequently implemented. Part 35.3 of the UK Civil Procedure Rules now provides that the overriding duty of an expert witness is to the Court rather than the persons who instructed or paid the witness. 33 The form and content of the expert report are governed by Part 35.10(4) and Practice Direction 35 Experts and Assessors. Part 35.10(4) provides that instructions given to an expert are not privileged but that the court will not order disclosure of an instructing letter or permit cross-examination on the instructions unless there are reasonable grounds to suggest that the instructions were inaccurate or incomplete. Similarly, the Australian Federal Court Rules 2011 and incorporated Practice Note establish that an expert s paramount duty is to the court and not the party retaining the expert Product Liability February 2017

9 B. The Osborne and the Goudge Report Two important reports have been released in Ontario in the past ten years or so addressing the civil justice system 35 and the pediatric forensic pathology system. 36 Both reports examined the role of the expert and made important recommendations for reform. Justice Osborne was asked to recommend ways to make the Ontario civil justice system more accessible and affordable. He recognized that expert evidence increased the cost of litigation and caused delays. One concern he specifically addressed was the use of hired guns and opinions for sale. 37 Justice Osborne concluded that the best mechanism to counteract expert bias was to expressly impose on experts an overriding duty to the court. 38 The inquiry headed by Justice Goudge was intended to restore the public s confidence in pediatric forensic pathology in Ontario and to remedy a significant array of failures and systemic issues following a cautionary tale of the devastating impact that irresponsible expert testimony can have. 39 Justice Goudge heard extensive evidence and commissioned independent research by a group of world-renowned experts from Canada, Australia, the United Kingdom and the United States as to pediatric forensic pathology and its interaction with the justice system. The Goudge Report is probably the most in depth review of expert evidence ever carried out in Canada. It reviewed and made recommendations on all phases of pediatric forensic pathology and made recommendations about report writing, trial preparation and testimony. C. The Amendments to the Rules of Civil Procedure In January 2010, the Ontario Rules of Civil Procedure were amended and incorporated many of the recommendations from the Osborne Report. Notably, a rule was added that explicitly states that the duty of an expert is to the Court and not to the party by whom or on whose behalf the expert is engaged. 40 Experts testifying in Ontario are now also required to sign an acknowledgment of expert s duty form before giving evidence at trial. 41 As the Osborne Report recommended, experts have an overriding duty to the court and the introduction of these new provisions should cause experts to pause and consider the contents of their reports and the extent to which their opinions may have been subjected to subtle or overt pressure. 42 Recently, in Henderson v Risi, the Court explained that these new provisions did not impose any higher duties than already existed at common law but were to remind experts of their already existing obligations. 43 The British Columbia s Civil Justice Reform Working Group and the Alberta Law Reform Institute each extensively surveyed the issues involving expert witnesses. The Alberta report made a number of recommendations similar to the Osborne Report, including standardizing the format and prescribing minimum standards for expert reports, and prepared draft Guidelines for Experts. In short, there has been a move in Canada, the United Kingdom and Australia to tighten the reign on expert witnesses and try to get away from the hired gun mentality by making it clear to expert witnesses that their primary obligation is to the Court and not the litigant who hired the expert. As well, there has been a movement to articulate what matters must be addressed in the expert s report. As can be seen, the Ontario Rules of Practice dealing with experts altered the landscape in Ontario as to expert testimony. Rule 4.1 provides as follows: DUTY OF EXPERT (1) It is the duty of every expert engaged by or on behalf of a party to provide evidence in relation to a proceeding under these rules, (a) to provide opinion evidence that is fair, objective and non-partisan; Expert Testimony Around the World: Getting the Straight Goods... Olah 9

10 (b) to provide opinion evidence that is related only to matters that are within the expert s area of expertise; and (c) to provide such additional assistance as the court may reasonably require to determine a matter in issue. Duty Prevails (2) The duty in subrule (1) prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged. Pursuant to Rule 53.03(2.1)(7) an expert s report now has to contain an acknowledgment of expert s duty, Form 53, signed by the expert in which he or she acknowledges the duties in Rule (1), namely to provide evidence that is fair, objective and non-partisan, within his or her area of expertise and to provide additional assistance to the court as required. Although the expert owed these duties at common law, this acknowledgement process now makes it very clear to experts and lawyers that first and foremost the expert s duty is to the court and not the party retaining the expert. Similar provisions are contained in the British Columbia Supreme Court Civil Rules 44 and Civil Procedure Rules of Nova Scotia. 45 In addition, Ontario Rule 53.03(2.1) sets out certain mandatory information that must now be contained in the expert s report: 1. The expert s name, address and area of expertise. 2. The expert s qualifications and employment and educational experiences in his or her area of expertise. 3. The instructions provided to the expert in relation to the proceeding. 4. The nature of the opinion being sought and each issue in the proceeding to which the opinion relates. 5. The expert s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert s own opinion within that range. 6. The expert s reasons for his or her opinion, including, i. a description of the factual assumptions on which the opinion is based, ii. a description of any research conducted by the expert that led him or her to form the opinion, and iii. a list of every document, if any, relied on by the expert in forming the opinion. These changes were designed to clarify and re-emphasize the duties of expert witnesses. As noted earlier, these rules are a restatement of the common law principle that it is the duty of an expert witness to provide opinion evidence that is fair, objective and non-partisan. 46 These common law duties of expert witnesses were set out in the well-known English case, National Justice Compania Naviera S.A. v. Prudential Assurance Co. Ltd. ( The Ikarian Reefer ) where the Court stated: Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation [citation omitted]. 2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise [citation omitted]. An expert witness should never assume the role of an advocate. 10 Product Liability February 2017

11 3. An expert witness should state the facts or assumptions on which his opinion is based. He should not omit to consider material facts which detract from his concluded opinion An expert witness should make it clear when a particular question or issue falls outside his expertise. VI. White Burgess Langille Inman v. Abbott and Haliburton Co. In the recent and important case of White Burgess Langille Inman v. Abbott and Haliburton Co. 48 the Supreme Court of Canada addressed the duty of expert witnesses. In White Burgess, Cromwell J, speaking on behalf of the Court, stressed that experts have a duty to the court to give fair, objective and non-partisan opinion evidence. More importantly, experts must be aware of this duty and be able and willing to carry out this duty. If an expert does not meet this threshold requirement, then his or her testimony should be excluded. Justice Cromwell expressed the principle as follows: 49 Expert witnesses have a special duty to the court to provide fair, objective and non-partisan assistance. A proposed expert 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. Less fundamental concerns about an expert s independence and impartiality should be taken into account in the broader, overall weighing of the costs and benefits of receiving the evidence. (emphasis added) Once this threshold is met, any concerns about the expert s independence or impartiality should be considered in the overall weighing of the cost-benefit analysis. This analytical framework is subject to statutory or other provisions which may alter the rules of admissibility. 50 The Court stressed the need for independence and impartiality by expert witnesses and pointed out that expert testimony played an important role in miscarriages of justice. 51 The Court referred to recent reports which examined the civil litigation process and which called for impartial and independent expert evidence. 52 As well, Justice Cromwell noted that it was clear that an expert s duty to the court is to provide an objective and unbiased opinion. He referred with approval to the elements of this duty outlined by Cresswell J. in National Justice Compania Naviera S.A. v. Prudential Assurance Co. 53 Justice Cromwell also referred to the description of the expert s role as set out in the rules of a number of Canadian jurisdictions and emphasized that they were simply a reflection of the common law duty that an expert witness owes at common law. The Court stressed that at the heart of the expert s duty lay three key concepts: impartiality, independence and absence of bias. 54 The Court then turned to the critical issue of how this duty translates into admissibility. In other words, should the duty go to admissibility or to the weight to be accorded to the expert s testimony? Justice Cromwell reviewed both Canadian law and as well the law from other jurisdictions and concluded that the dominant view in Canadian cases was that lack of independence and the absence of impartiality went to admissibility in addition to the weight to be given to the testimony. He cited Binnie J. s admonition in R. v. J.- L.J. 55 that expert evidence should be scrutinized at the time it is adduced and not allowed too easy an entry on the basis that ultimately, the frailties of the evidence would go to weight. Cromwell J. concluded that the threshold requirement was whether the witness was unable or unwilling to fulfill his or her duty to assist the court. If the witness was not aware of the primary duty to the court or was not able to or was not willing to do so, then the testimony should be excluded. Justice Cromwell cautioned that imposing this additional threshold test was not intended to make trials longer and more complex. In other words, the Mohan voir dire was not intended to be recanvassed during the witness s testimony. 56 Expert Testimony Around the World: Getting the Straight Goods... Olah 11

12 Generally, in the absence of a challenge to the expert s testimony that the expert recognizes and accepts the duty to the court overrides his or her obligation to the party calling the testimony will be sufficient to meet the threshold. If the expert testifies under oath to this effect, the burden then shifts to the party opposing the admission of the expert testimony to show that there is a realistic concern that the expert s testimony should not be admitted because the expert was unable to and/or was unwilling to comply with this duty. If the party opposing the admission of the expert s evidence is successful in discharging this burden, then the burden shifts to the party calling the witness to show that the threshold requirements have been met on a balance of probabilities. 57 The Court stressed the threshold requirement was not particularly onerous and that it was likely quite rare that the expert s testimony would be excluded on a voir dire. The key to this process is that the trial judge has to determine whether the expert is able and willing to carry out his or her primary duty to the Court. 58 Justice Crowell also cautioned that the trial judge had to examine the nature and extent of the interest or connection that the expert had with the litigation. The mere fact of an interest or a connection does not automatically exclude the evidence. Considerations such as a direct financial interest, a very close family relationship with one of the parties or a case in which the expert would likely incur professional liability if the expert s testimony was not accepted were situations that should cause concern. As well, an expert who becomes an advocate for the party calling him or her is clearly unwilling and/or unable to carry out the duty the expert owes to the Court. Justice Cromwell stressed that is only in very clear cases where the expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence that the testimony will be excluded. Anything less than a clear unwillingness or inability to discharge this duty will not lead to the exclusion of the expert s evidence. 59 Cromwell J. rejected the appearance of bias test and emphasized that the question is whether the facts lead to the conclusion that the expert is unable or unwilling to carry out his or her primary duty to the Court. This assessment will be a factual one and will be a matter of degree. VII. How Many Experts Can You Call? It is important to bear in mind that both the Canada Evidence Act 60 and the provincial acts provide limits as to the number of experts you can call without leave of the trial judge or the administrative body hearing the matter. So if there are several issues in the case then you will be permitted to call the permitted number on each issue. However, more recently there is some case law that suggests that leave is required if you intend to call more than three expert witnesses in total. 61 In Ontario, a party is only permitted to call three witnesses offering opinion evidence without the leave of the trial judge. 62 Under the Canada Evidence Act, five such witnesses may be called by either side without leave of the trial judge or the person presiding. 63 The rationale behind these rules is to encourage judicial efficiency and avoid lengthy and expensive trials. A motion to hear more than three experts will be heard by the trial judge. The trial judge acts as a gatekeeper not only as to the expert evidence to be admitted but as well as to the number of expert witnesses that may be called. Some of the factors that a trial judge will consider in determining on a motion to allow additional expert witnesses are as follows: whether your opponent objects to leave being given to call additional witnesses the number of subjects in issue the number of experts each side proposes to advance on each subject how many experts are customarily called in cases with such issues 12 Product Liability February 2017

13 is it necessary to call more than three experts to adduce the necessary evidence on the issues in the case? will there be duplication with the evidence of other witnesses? is the time and the cost of calling the additional expert evidence disproportionate to the amount in issue in the case? VIII. Counsel s Review of the Draft Report with the Expert One of the issues that recently arose in Ontario was whether it was proper for the lawyer retaining the expert to discuss the witness s draft report with him or her. The trial judge held that it was improper for counsel to assist an expert witness in the preparation of the expert s report. The Court of Appeal reversed the trial judge on this point and held that consultation and corroboration between the lawyer and the expert witness not only was proper but in fact essential to ensure that the expert understood his or her duties and as well as ensuring that the expert s report complied with the Rules. The Court of Appeal pointed out that these communications were critical in ensuring that the expert could discharge his or her role appropriately: 64 Counsel play a crucial mediating role by explaining the legal issues to the expert witness and then by presenting complex expert evidence to the court. It is difficult to see how counsel could perform this role without engaging in communication with the expert as the report is being prepared. As well, the Court of Appeal clarified that draft reports prepared by experts were not subject to automatic disclosure and that such a practice would interfere with proper witness preparation. Where the opposing party can show reasonable grounds to suspect that the lawyer communicated in a manner with the expert witness that would interfere with the witness s duties of independence and objectivity, then the Court can order disclosure of the discussions. One such case is where the witness testifies that the witness did not prepare the report or testifies that he or she had an ongoing business relationship with the party calling him. 65 IX. Final Thoughts As can be seen from this discussion, Canadian courts and rule makers, in response to a number of problems with expert evidence in Canada, have taken steps to ensure that expert evidence is closely scrutinized before its admission. As well, these salutary changes have been designed to ensure that expert witnesses understand their role in the judicial process they are not hired guns. Rather experts first obligation is to the Court to provide objective and independent evidence rather than favor the party who retained the witness. These efforts to tighten the reign over expert evidence have worked well as expert testimony is now receiving much more scrutiny before being admitted. However, in the process, the governing legal principles have become too complex, uncertain and difficult to apply. Because the Mohan principle was primarily forged in the crucible of the criminal law, the difficult question to be asked in relation to civil cases is this would a more simple and more focused rule which had necessity and reliability at the core of the gatekeeping function--not serve the courts better in handling the admission of expert evidence? In the civil context, the Mohan test could be collapsed to essentially two key elements, necessity and reliability. As well the court could retain a residual discretion where the assessment of prejudicial value versus probative value could be made. This is an assessment Canadian trial judges are used to making. This residual discretion could be used to exclude expert evidence that threatened the fact finding process. As well, Expert Testimony Around the World: Getting the Straight Goods... Olah 13

14 this power could be utilized to reject highly prejudicial expert testimony that had little probative value and exclude other problematic testimony such as cumulative evidence that was of limited assistance and would unduly protract the trial process. The Mohan gatekeeping function would only come into play after the expert has been shown to be duly qualified. Concerns as to the expert s lack of independence or lack of impartiality would continue to be assessed under this rubric. Endnotes 1 Winans v. New York & Erie Railroad Co. 62 U.S. 88 (1858) at p W.L. Foster, Expert Testimony Prevalent Complaints and Proposed Remedies (1897) 11 Harv. L. Rev. 169 at Summary of Findings and Recommendations of the Civil Justice Reform Project released November 20, 2007 by former Associate Chief Justice of Ontario, Coulter A. Osborne; The Inquiry into Pediatric Forensic Pathology in Ontario by the Honorable Stephen T. Goudge released September 3, 2008 and The Report of the Kaufman Commission on Proceedings Involving Guy Paul Morin (1998). This report in part looked at the conduct of the Center for Forensic Sciences in Toronto in the charge against Mr. Morin that he murdered nine-year old Christine Jessop. Among other things, fiber evidence was contaminated and this was known to the Center s staff. This information was withheld from the police, the prosecution, the defense and the Court. As well the Center s staff failed to accurately and adequately convey the limitations of their findings to the police, the prosecution and the Court. Mr. Morin was wrongfully convicted of first degree murder. Ultimately, as a result of fresh evidence tendered jointly by the Crown and the defense, he was acquitted of the charge. As a result a Public Inquiry was held. The Commission made certain recommendations about preventing future miscarriages of justice. 4 White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 SCR 182, 2015 SCC 23 (CanLII) at paras Krawchuk v. Scherbak, 2011 ONCA 173 (Ont.C.A.) at para.130, leave to appeal refused [2011] S.C.C.A. No. 319 (S.C.C.). 6 Krawchuk v. Scherbak, supra. at para.135, see also Ontario Ltd. v. Barclay 2016 ONCA 656 (Ont.C.A.) at paras Burbank v. B. (R.T.), 2007 BCCA 215, leave to appeal refused [2007] S.C.C.A. No.316 (S.C.C.). 8 R. v. Marquard, [1994] 4 S.C.R. 223, see also Rv. Abbey, (2000), 246 C.C.C. (3d) 302, 2009 ONCA 624 (Ont.C.A.) at para.94 and as well R.v. Batista, 2008 ONCA 804, 238 C.C.C. (3d) 97 (C.A.) at paras see for example Campbell v. Municipal Corporation of the County of Bruce 2015 ONSC 230, affirmed 2016 ONCA 371 (C.A.) leave to appeal to the Supreme Court of Canada filed August 16, 2016 where the trial judge s findings imposed some standards that the industry it is submitted cannot meet. 10 (1994), 89 C.C.C. (3d) 402 (S.C.C.), see also R. v. J-L-J, 2000 SCC 51 (SCC) and R. v. D.D., [2000] 2 S.C.R. 27, [2000] 2 SCR As Doherty J.A. put it in R. v. Abbey, (2000), 246 C.C.C. (3d)302, 2009 ONCA 624 (Ont.C.A.) at para.74, leave to appeal refused 2010 CarswellOnt 4827 (SCC) Mohan replaced what had been a somewhat laissez faire attitude with a principled approach. 12 ibid. at p. 21. Or as La Forest J. stated in R. v. Beland, [1987] 2 S.C.R. 398 at p. 434 speaking about the results of a polygraph tendered by the accused, such evidence should not be admitted because of human fallibility in assessing the proper weight to be given to evidence cloaked in a mystique of science. 13 R. v. D.D., [2000] 2 S.C.R. 27, [2000] 2 SCR 275 at para opt.cit. at para [2015] 2 SCR 182, 2015 SCC 23 (CanLII) at paras ( White Burgess ). 16 R. v. Mohan, opt. cit. at p ibid. at p.413, see also R.v J.(J.-L.), 2000 SCC 5, [2000] 2 SCR 600 at para see for example Phillion v. R. (1977), 33 C.C.C. 535 (S.C.C.) and R.v. Beland (1987), 36 C.C.C.(3d) 481 at Product Liability February 2017

15 19 R.v. Audy (No.2) (1977), 34 C.C.C. (2d) 231 (Ont.C.A.). 20 see for example R. v. Cohen, 2015 NSSC 330 (N.S.S.C.) at paras where the trial judge held that although the forensic pathologist who testified had the requisite expertise but that his evidence was not on point given the lack of a body. An epidemiologist or a neuropathologist would have been better suited to the task. 21 R. v. Abbey, opt.cit. at para ONCA 611 at para R. v. Sekhon, 2014 SCC 15, [2014] S SCR 272 (SCC) at paras and see also remarks of LeBel J. at para ibid.at para White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] 2 SCR 182, 2015 SCC 23 (CanLII). 26 see for example R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656, at para R. v. Mohan, [1994] 2 S.C.R. at p.24; see also the comments of Binnie J. in R. v. J.-J SCC 51, [2000] 2 S.C.R. 600 at para R. v. Abbey opt.cit. at para Access to Justice Final Report, by The Right Honorable the Lord Woolf, Master of the Rolls, July 1996, Final Report to the Lord Chancellor on the civil justice system in England and Wales (the Woolf Report ). 30 Woolf Report, para Woolf Report, Chapter 13, para Woolf Report, Chapter 13, para UK, Civil Procedure Rules. Part Federal Court of Australia, Practice Note CM 7, Expert Witnesses in Proceedings in the Federal Court of Australia, and Federal Court Rules 2011, SLI No. 134, r Summary of Findings and Recommendations of the Civil Justice Reform Project released November 20, 2007 by former Associate Chief Justice of Ontario, Coulter A. Osborne ( Osborne Report ). 36 The Inquiry into Pediatric Forensic Pathology in Ontario by the Honorable Stephen T. Goudge released September 3, 2008 ( Goudge Report ). Dr. Smith was the Director of the Ontario Pediatric Forensic Pathology Unit at the world famous Hospital for Sick Children and the leading pediatric forensic pathologist in Ontario for about a decade. A review ordered by the Chief Coroner of Ontario by five respected forensic pathologists of Dr. Smith s 45 cases found that in 20 of Dr. Smith s cases the reviewers took issue with Dr. Smith s opinion in his reports or testimony or both. In 12 of these cases there had been a finding of guilt by the courts: Goudge Report, at p Osborne Report, at pp. 71, Osborne Report, pp Justice Osborne also considered a meet and confer. 39 Goudge Report, p Rules of Civil Procedure, RRO 1990, Reg 194, r Rules of Civil Procedure, r 53.03(2.1)(7). 42 Osborne Report, pp Henderson v Risi, 2012 ONSC 3459 at para Rule 11-2(1) and (2) which provide that an expert appointed by a party or the court has a duty not to be an advocate for any party and certify that he or she is aware of this duty and that any report or testimony will be in conformity with the rule. 45 Rule 55.04(1)(1) under which the expert must state and sign in his or her report that the expert is providing an objective opinion for the assistance of the court, even if the expert is retained by a party and apply independent judgment when assisting the court. 46 Moore v. Getahun, 2015 ONCA 55 (CanLII) at para.52; see also Henderson v. Risi, 2012 ONSC 3459 (CanLII), 111 O.R. (3d) 554 (S.C.), at para.19. Expert Testimony Around the World: Getting the Straight Goods... Olah 15

16 47 [1993] 2 Lloyd s Rep. 68, at p. 81 (Eng. Q.B. Comm.), rev d on other grounds but endorsed on this point, [1995] 1 Lloyd s Rep 455 (Eng. C.A. Civ.), at p opt. cit. 49 ibid. at para White Burgess at para The Commission on Proceedings Involving Guy Paul Morin Report, by Honorable F. Kaufman and the report by the Honorable Stephen Goudge, Inquiry into Pediatric Forensic Pathology in Ontario. 52 Access to Justice Final Report, by The Right Honorable the Lord Woolf, Master of the Rolls, July 1996, Final Report to the Lord Chancellor on the Civil Justice System in England and Wales; Civil Justice Reform Project: Summary of Findings & Recommendations. 53 [1993] 2 Lloyd s Rep. 68 (Q.B.), White Burgess, supra. at para R. v. Mohan supra. at 20; White Burgess, supra. at para SCC 51, [2000] 2 SCR 600 at para White Burgess, supra. at paras ibid. at para ibid. at para ibid. at para R.S.C. 1985, c.c-5, s Bank of America Canada v. Mutual Trust Co., (1998) 39 OR. (3d) 134 (Ont.Gen.Div.). 62 s.12 of the Ontario Evidence Act, R.S.O c.e opt. cit. s Moore v. Getahun, opt. cit. at para Moore v. Getahun, opt.cit. at paras Product Liability February 2017