A Snapshot of the Law and Trends on the Admissibility and Qualification of Expert Evidence

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1 A Snapshot of the Law and Trends on the Admissibility and Qualification of Expert Evidence By Stacey Hsu and Daniel Reisler of Reisler Franklin LLP, Toronto In light of the recent media coverage surrounding hired medical experts, 1 this article examines the state of the law on the admissibility and qualification of experts at trial, and some recent trends in the case law. The general rule of evidence is that witnesses can only testify as to facts and not opinions. This is because only the trier of fact can draw inferences from proven facts. 2 Expert evidence is an exception to this rule and as such, is presumptively inadmissible. The leading case on the admissibility and qualification of experts is White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23. In White Burgess, Justice Cromwell writing for the Supreme Court of Canada stated that expert evidence can only be admitted if the party calling on it satisfies, on a balance of probabilities, all of the following threshold criteria: 1. Relevance; 2. Necessity in assisting the trier of fact; 3. Absence of any exclusionary rule; and 4. Properly qualified expert. 3 If the evidence does not meet all four criteria, the analysis ends and the evidence is inadmissible. 4 Even if the above four criteria are met, the trial judge must still decide whether the evidence is sufficiently beneficial to the trial to warrant admission despite 1 Globe and Mail, Licensed to bill: How doctors profit from injury assessments that benefit insurers by Kathy Tomlinson, December 1, 2017; Law Times, Lawyers say expert bias still significant problem by Alex Robinson, December 4, Moore v Getahun, 2015 ONCA 55 at para 33 3 R v Mohan, [1994] 2 SCR 9 at paras ( Mohan ); White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23 at para 23 ( White Burgess ); 4 R v Abbey, 2009 ONCA 624 at para 78

2 potential harm that may flow from the admission of the evidence. This is the gatekeeping step where the judge conducts a cost-benefit analysis. 5 A. Relevance On the issue of relevance, it is a question of law to be decided by the judge. 6 Relevance refers to logical (as opposed to legal) relevance. The evidence will not be admitted simply if it is interesting or imaginative but instead it must make a fact more or less likely. Relevance at this threshold stage is less stringent than at the gatekeeping stage. B. Necessity in assisting the trier of fact Expert evidence is only necessary if it deals with an area that is likely outside of the experience and knowledge of a jury. 7 The intention is to prevent experts from giving evidence that the trier of fact can give themselves. The evidence must be more than just helpful. Expert evidence should be admitted where lay persons are apt to come to a wrong conclusion without expert assistance, or where access to important information will be lost unless we borrow from the learning of experts. The case law has found expert evidence admissible when: it is related to a subject matter where the average person is unlikely to form a correct judgment; information is likely to be outside the knowledge or experience of the average individual; or additional information is required to understand something. 8 C. Absence of any Exclusionary Rule 5 White Burgess at para 24 6 Mohan at para 22 7 Mohan at paras R. v D(D), 2000 SCC 43 at para 31

3 Expert evidence may be excluded under a separate exclusionary rule of evidence. D. Properly Qualified Expert A properly qualified expert must be willing to fulfill a duty to the court to provide evidence that is impartial, independent, and unbiased. Rule of the Rules of Civil Procedure, states that experts have a duty to the court to provide a fair, objective and non-partisan opinion that is related to their area of expertise. Rule experts must acknowledge this duty by completing Form 53 and their reports must contain specific information laid out in Rule 53.03(2.1). The expert s opinion must be impartial in that it reflects an objective assessment of the questions at hand. It must be independent in that it is the product of the expert s independent judgment, uninfluenced by who has retained him or her, or the outcome of the litigation. It must be unbiased in that it does not unfairly favour one party s position over the other. For this, the acid test is whether or not the opinion would change regardless of which party retained him or her. 9 At this threshold stage, the test is not particularly onerous. Excluding an expert because of an interest or connection to the litigation at this threshold stage should only occur in very clear cases where the proposed expert is unable or unwilling to provide fair, objective and non-partisan evidence. 10 Similarly, any deficiencies in expertise should go to the weight of the evidence but not affect its admissibility. 11 In R. v Pham, 2013 ONSC 4903, the court set out a list of factors to consider when determining if an expert is qualified to testify. These factors include: 9 White Burgess at para White Burgess at paras 46,49 and R. v WDR, [1994] 77 OAC 59

4 the manner in which the witness acquired the special skill and knowledge upon which the application is based; the witness formal education (degrees/certificates); the witness professional qualifications (member of College of Physicians and Surgeons of Ontario); the witness membership and participation in professional associations related to the proposed evidence; his/her attendance at courses or seminars related to the area of the evidence; the witness experience in the proposed area; whether the witness has taught or written in the proposed area; whether the witness has kept up with literature in the field; whether the witness has been previously qualified to give evidence in the proposed area, including the number of times and whether it was contested; whether the witness has not been qualified to give evidence in the proposed area, and why; and whether prior case law or legal texts have identified the contested area as a proper area for the expert, and if so, who might give the evidence. 12 It is important to remember that it is not just about the expert s CV. The question is whether the expert possesses the required expertise to answer the questions in the proceeding, however they came to possess it. Gatekeeping and Trends of the Court The trial judge, in a gatekeeper role, determines if the benefits of admitting the evidence outweigh its potential risks. It is here that the courts have excluded an expert s testimony because of partiality. 12 R v Pham, 2013 ONSC 4903 at para 31

5 The dominant approach in Canadian common law has been to treat an expert s independence and partiality as bearing on both the weight of the evidence, and in certain circumstances, on its admissibility. This principle was followed in Ghiassi (Litigation guardian of) v Singh, 2017 ONSC 639 and in White Burgess. The trend in recent case law appears to enhance the trial judge s role as a gatekeeper, especially when excluding expert evidence. Expert evidence is no longer being routinely admitted with only its weight to be determined by the trier of fact. Justice Cromwell in White Burgess stated that the unmistakable overall trend of the jurisprudence has been to tighten the admissibility requirements and enhance the judge s gatekeeping role. The Court of Appeal reiterated this trend in R. v Abbey, 2017 ONCA 640, stating that the gatekeeper stage of admissibility is central to the probative value and benefits of receiving expert evidence. Unreliable opinion evidence will not be admitted. In R. v Abbey, the trial judge refused to admit an expert s testimony on gang tattoos. In Expoed Inc v Anaca Technologies, 2017 ONSC 5849, the court excluded an expert s testimony and stated that even if the testimony was admissible, it couldn t be given any weight. A voir dire was held where the expert s lack of independence was brought out. The expert undertook to give independent, and objective testimony and the court ruled that the lack of independence would go to weight. However, the testimony was unsatisfactory. The expert took liberties with word meanings and descriptions. He viewed his role as being an advocate for the Plaintiff rather than an independent expert. In Bruff-Murphy (Litigation guardian of) v Gunawardena, 2017 ONCA 502, the Court of Appeal ordered held that testimony of a psychiatric expert was inadmissible at the gatekeeping stage. Hourigan J.A. stated that on a proper balancing, the potential risks of admitting the expert s evidence far outweighed the potential benefit of the testimony. There was a high probability

6 that he would be a troublesome witness, intent on advocating for the defence and unwilling to fulfill his duties to the court. The cost-benefit analysis excluded him from testifying and the admission of the expert s testimony resulted in a miscarriage of justice. The trial judge s gatekeeping duty continues during the expert s testimony. If in the course of an expert s testimony, it becomes apparent to the trial judge that the testimony is disproportionately prejudicial or otherwise inadmissible, the trial judge may: 1. Advise counsel that he is going to give a mid-trial or final instruction excluding the expert s testimony in whole or in part, and hear submissions from counsel on the issues in the absence of the jury; or 2. Ask for counsel s submissions on whether to order a mistrial and rule accordingly. 13 Strategies and Takeaways Even where an expert is appropriately qualified, trial judges are being called upon to take a more robust gatekeeping role to exclude evidence that is prejudicial. Counsel objecting to the expert should be attuned to the expert s testimony so as to renew their objections during the testimony. When challenging expert evidence, be mindful to consider whether: o The expert s methodology is unfair to one party; o The expert usurps the role of the trier of fact and starts to determine the party s credibility; o Tests are deliberately interpreted to support a theory or conclusion; o The expert sees his role to be to expose inconsistencies and not to provide an independent assessment; o There is evidence of a lack of awareness to be impartial; or o The expert becomes an advocate for a party Bruff-Murphy v Gunawardena, 2017 ONCA Bruff-Murphy v Gunawardena, 2017 ONCA 502

7 When retaining an expert, it is important to ensure that they understand their duty of impartiality and that this is reflected in their report, which will form the basis of their testimony. One of the simplest ways to do this, is to request that the expert consider and discuss the alternative opinions or theories, and explain in an impartial way why they have reached the conclusion they have.