Admissibility and Perceived Conflict

Several recent Canadian decisions clarify issues around admissibility of expert evidence, perceived conflict of interest and whether counsel can review draft reports prior to trial
Admissibility and Perceived Conflict
APPELLATE COURT RULINGS in 2015 provided much-needed clarification regarding the admissibility of expert evidence in Canadian civil trials. One important decision restored the validity of traditional pre-trial communications between litigants and their expert witnesses; a second one offered new guidance on when allegations of bias are sufficient to exclude expert evidence; and a third reinforced the discretion of trial judges over which expert evidence is admissible.

Moore v. Getahun

In January 2015, the Ontario Court of Appeal ruled unanimously in Moore v. Getahun that allowing lawyers and experts to discuss the contents of expert reports while they’re being written is in the best interest of justice. The court ruled that there was no impropriety in having counsel review draft reports with experts, and that such reports are immune from production unless there is a reasonable basis to suspect that counsel improperly influenced the expert.

The ruling upheld the lower-court verdict in a medical malpractice trial that turned on expert testimony. It emerged at trial, however, that one of the defendants’ experts had altered his report following suggestions by defense counsel during a 90-minute conversation.

In the trial decision, Justice Janet Wilson of Ontario’s Superior Court criticized the tradition of litigators communicating with experts during the preparation of their reports, which she found to undermine the “expert’s credibility and neutrality.” The decision finds that “counsel’s prior practice of reviewing draft reports should stop,” and that “discussions or meetings between counsel and an expert to review and shape a draft report are no longer acceptable.”

Justice Wilson’s comments alarmed the litigation Bar throughout Canada. For a brief period, many litigators hesitated to talk to their expert witnesses as they prepared their reports “for fear that, if that came out at trial, the report would be disallowed,” says Paul Pape, of Pape Barristers Professional Corp. in Toronto. (Pape represented the defendant hospital and its doctors on the appeal.) Six groups representing lawyers and experts sought intervenor status and made submissions in the appeal.

On appeal, Justice Robert Sharpe, writing for the OCA, held that Justice Wilson erred in finding it improper for counsel to review and discuss reports with expert witnesses. He agreed with the submissions of the appellant and the intervenors that it would be “bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports. Just as lawyers and judges need the input of experts, so too do expert witnesses need the assistance of lawyers in framing their reports in a way that is comprehensible and responsive to the pertinent legal issues in a case.”

“It is one of the most significant cases on admissibility of expert evidence in recent times,” says Monique Jilesen, a partner at Lenczner Slaght Royce Smith Griffin LLP in Toronto. “The decision has provided counsel and experts with guidance on how to conduct themselves, and allowed that relationship to progress in a way that the evidence before courts will be better.”

The appellate court’s ruling also largely ended the practice of litigators having to disclose draft reports of their experts to the other side. These remain subject to litigation privilege. “It’s not an absolute rule,” says Jilesen. “But opposing counsel can’t just ask for the draft report and get it. They must have some factual basis for suggesting there’s been improper conduct [around the report].” (The only documents an expert witness is obligated to produce are the foundational documents. These, for example, may include financial statements or medical charts that the expert relied on to form their opinion.)

Jeff Pellarin, President of Pellarin Inc., a Toronto-based forensic accountant and business evaluator who is frequently called as an expert witness, says “there is some molding of the expert opinion that occurs while the mandate unrolls; that happens, say, 50 per cent of the time.” For example, he says, the plaintiff may have a choice of two remedies to seek. “Sometimes counsel may ask you to start calculating the amount of each remedy, and when it becomes clear which yields the higher number, they’ll tell you to just do a report on that remedy, because they’re not going to pursue the other one.”

Another area where collaboration is often needed is in showing liability. That often requires input from counsel on what the legal tests are, because intent may have to be established.

White Burgess

The Supreme Court of Canada (SCC) decision in White Burgess Langille Inman v. Abbott and Haliburton Co. offered new guidance on when allegations of bias are sufficient to exclude expert evidence. The ruling clarifies the test for the admissibility of an expert witness, holding that an expert may be qualified to give expert evidence despite having a pre-existing relationship with one or both litigants.

In White Burgess, the plaintiff shareholders sued their company’s former auditors for professional negligence after retaining a new accounting firm as auditor. The new auditor revealed problems with the previous auditor’s work, which had caused financial losses. In response to the defendants’ summary-judgment motion, the plaintiffs filed an affidavit from a forensic accounting expert who was a partner in a different office of the same accounting firm as the new auditors. The defendants argued that the expert was not impartial and should be disqualified due to this relationship.

The Nova Scotia Supreme Court ordered that the expert’s affidavit be excluded, finding that an expert “must be, and be seen to be, independent and impartial.” However, the Nova Scotia Court of Appeal disagreed with the lower court, finding that the affidavit should not have been excluded.

The Supreme Court in this instance upheld the appeal court’s decision. Justice Thomas Cromwell, writing for a unanimous SCC, emphasized three related concepts — impartiality, independence and absence of bias — underpinning the duty that expert witnesses owe the court. Independence and impartiality can be threshold issues bearing on an expert’s admissibility, the SCC held, but these thresholds are meant to be low. Unless challenged, experts’ testimony accepting their duty to the court should be taken at face value.

When assessing impartiality, it’s not merely the connection to the litigant that matters but the nature and extent of that connection, the court ruled. Expert evidence should only be excluded in “very clear cases” where the court has been able to clearly determine that the expert witness is unwilling or unable to carry out their duty to the court.

The concept of “apparent bias” is not the proper test, the SCC held. The issue is not whether a reasonable observer would think that the expert is not independent, but whether the relationship results in the expert being unable or unwilling to carry out his or her duty to the court. The SCC found no evidence that the plaintiffs’ expert was unwilling or unable to meet their duty to the court; therefore the expert’s evidence should not have been excluded.

Jilesen acknowledges that the ruling has been interpreted as setting the bar for admissibility of expert evidence very low. But she says that if judges see the expert acting as an advocate rather than an impartial witness, they are likely to say, “I heard them, I found them to be argumentative and I reject their evidence.”

The ruling also clarified that challenges to the testimony of an expert witness based on their alleged lack of independence, partiality or bias can now occur in the admissibility stage of a trial rather than having to await the cross-examination, says John Olah, a partner at Beard Winter LLP in Toronto.

In a paper entitled “A Road Map to the Admissibility of Expert Evidence,” presented at a Law Society of Upper Canada forum last December, he raises the possibility that civil trials, post-White Burgess, will move toward in limine hearings to deal with the admissibility of expert evidence, as criminal trials often do. “An early resolution of these issues [at the outset of jury trials] will make [them] more efficient,” he writes.

Meady v. Greyhound Canada

In Meady v. Greyhound Canada Transportation, the Ontario Court of Appeal upheld a trial judge’s decision to exclude evidence from two experts. The case involved an action against a Greyhound bus driver and the Ontario Provincial Police (OPP), who had allowed a visibly disturbed young man to stay on a bus traveling from Calgary to Nova Scotia through a remote part of Northern Ontario. The passenger grabbed the wheel from the driver and sent the bus hurtling into a ravine. One person was killed and 30 were injured.

The plaintiffs claimed the police mishandled the situation by failing to detain the passenger under the Mental Health Act. Plaintiffs’ counsel wished to lead evidence from two expert witnesses — a police officer with knowledge of use-of-force principles and a transportation safety consultant familiar with accident investigation and bus standards. The trial judge refused to admit expert evidence from both.

The admissibility of expert evidence is governed by the SCC’s decision in R. v. Mohan and the Ontario Court of Appeal’s decision in R. v. Abbey. The admissibility test has four parts: (a) the evidence must be relevant; (b) it must be necessary to assist the trier of fact; (c) it must not be subject to an exclusionary rule; and (d) the expert must be properly qualified.

The admissibility of both expert witnesses turned on the trial judge’s application of the second criterion. While expert evidence is usually needed by the trier of fact, the trial judge cited the exception for “non technical matters or those which an ordinary person may be expected to have knowledge” to exclude the evidence. On appeal, the court found that the trial judge had properly performed his gatekeeper function, and that deference must be accorded his decision.

“What I take from this case is that the trial judge’s role — in admitting expert evidence or not admitting it — has become enhanced in the last year,” says Pape. “You’re not going to get any help in the court of appeal if you think the trial judge got it wrong. The trial judge is taking a much closer look at whether or not she is going to allow the expert to testify. It used to be, ‘Let it in and it will all go to weight.’”

Bob Cooper, the founder of Cooper Litigation in Vancouver, agrees that the Supreme Court’s intention was to direct trial courts to scrutinize expert evidence more strongly, “but that direction is applied inconsistently in the trial courts,” he says. “I think expert evidence is still readily received in the trial courts, and concerns about its independence and impartiality are generally dealt with as matters of weight.”

Class Actions

Expert evidence has a reduced role in the pre-certification stage of class actions. At that stage, any expert evidence that is filed will deal with the criteria for certification. “Usually the battleground on certification motions is whether there are common issues among the class members,” says Sandra Forbes, a partner at Davies Ward Phillips & Vineberg LLP in Toronto.

If the case does manage to pass the certification stage, the trial proceeds on the merits and further expert evidence is adduced, but it’s of a very different kind. The expert who provided an opinion on commonality at the pre-certification stage is usually not the same expert who testifies on, for example, the standard of care or the damages at trial. Expert evidence at the merit stage is given in testimony before a judge (unlike at the pre-certification stage, when it is filed as a written report).

Judges used to be much more willing to evaluate the expert evidence on the merits at the pre-certification stage, says Forbes. “More recently, the courts have been very reluctant to get into that expert evidence. Certification should not be a battle of the experts, they say. The courts don’t want to resolve certification motions on the basis of whose expert is right.”

The same is true in Québec’s “authorization” stage of class actions. Under amendments to Québec’s Code of Civil Procedure in 2002, counsel must convince the court that expert evidence will be relevant or helpful for deciding whether the four conditions for authorization are met. “It’s less often allowed at that stage because it’s seen as an attempt to debate the merits of the case,” says Yves Martineau, a partner at Stikeman Elliott LLP in Montréal. “There are a few cases where it’s been allowed, but the examples are rather scarce since 2002.”

In general litigation in Québec, the recent trend has been for court-appointed experts to replace litigants’ experts. “Will that also apply as frequently in class actions?” asks Martineau. “Maybe not.” In individual actions, the amounts at issue don’t usually justify the litigants hiring their own experts. “In class actions, the amounts are very significant and there will be less incentive to reduce costs.”