White Burgess Langille Inman v. Abbott and Haliburton Co.

White Burgess Langille Inman v. Abbott and Haliburton Co.
Collection
Supreme Court Judgments
Date
2015-04-30
Neutral citation
2015 SCC 23
Report
[2015] 2 SCR 182
Case number
35492
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Wagner, Richard; Gascon, Clément
On appeal from
Nova Scotia
Subjects
Evidence
Notes
SCC Case Information: 35492
Decision Content
SUPREME COURT OF CANADA
Citation: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182
Date: 20150430
Docket: 35492
Between:
White Burgess Langille Inman, carrying on business as
WBLI Chartered Accountants and R. Brian Burgess
Appellants
and
Abbott and Haliburton Company Limited,
A.W. Allen & Son Limited, Berwick Building Supplies Limited, Bishop’s Falls Building Supplies Limited, Arthur Boudreau & Fils Ltée, Brennan Contractors & Supplies Ltd.,
F. J. Brideau & Fils Limitée, Cabot Building Supplies Company (1988) Limited,
Robert Churchill Building Supplies Limited, CDL Holdings Limited, formerly
Chester Dawe Limited, Fraser Supplies (1980) Ltd., R. D. Gillis Building Supplies Limited, Yvon Godin Ltd., Truro Wood Industries Limited/Home Care Properties Limited,
Hann’s Hardware and Sporting Goods Limited, Harbour Breton Building Supplies Limited, Hillier’s Trades Limited, Hubcraft Building Supplies Limited, Lumbermart Limited, Maple Leaf Farm Supplies Limited, S.W. Mifflin Ltd., Nauss Brothers Limited, O’Leary Farmers’ Co-operative Ass’n. Ltd., Pellerin Building Supplies Inc.,
Pleasant Supplies Incorporated, J. I. Pritchett & Sons Limited, Centre Multi-Décor de Richibucto Ltée, U. J. Robichaud & Sons Woodworkers Limited, Quincaillerie
Saint-Louis Ltée, R & J Swinamer’s Supplies Limited, 508686 N.B. INC. operating as T.N.T. Insulation and Building Supplies, Taylor Lumber and Building Supplies Limited, Two by Four Lumber Sales Ltd., Walbourne Enterprises Ltd., Western Bay Hardware Limited, White’s Construction Limited, D. J. Williams and Sons Limited and
Woodland Building Supplies Limited
Respondents
- and -
Attorney General of Canada and Criminal Lawyers’ Association (Ontario)
Interveners
Coram: McLachlin C.J. and Abella, Rothstein, Cromwell, Moldaver, Wagner and Gascon JJ.
Reasons for Judgment:
(paras. 1 to 63)
Cromwell J. (McLachlin C.J. and Abella, Rothstein, Moldaver, Wagner and Gascon JJ. concurring)
White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182
White Burgess Langille Inman, carrying
on business as WBLI Chartered Accountants and
R. Brian Burgess Appellants
v.
Abbott and Haliburton Company Limited, A.W. Allen & Son
Limited, Berwick Building Supplies Limited, Bishop’s Falls
Building Supplies Limited, Arthur Boudreau & Fils Ltée,
Brennan Contractors & Supplies Ltd., F. J. Brideau & Fils
Limitée, Cabot Building Supplies Company (1988) Limited,
Robert Churchill Building Supplies Limited, CDL Holdings
Limited, formerly Chester Dawe Limited, Fraser Supplies
(1980) Ltd., R. D. Gillis Building Supplies Limited, Yvon
Godin Ltd., Truro Wood Industries Limited/Home Care
Properties Limited, Hann’s Hardware and Sporting Goods
Limited, Harbour Breton Building Supplies Limited,
Hillier’s Trades Limited, Hubcraft Building Supplies
Limited, Lumbermart Limited, Maple Leaf Farm Supplies
Limited, S.W. Mifflin Ltd., Nauss Brothers Limited, O’Leary
Farmers’ Co-operative Ass’n. Ltd., Pellerin Building Supplies
Inc., Pleasant Supplies Incorporated, J. I. Pritchett & Sons
Limited, Centre Multi-Décor de Richibucto Ltée,
U. J. Robichaud & Sons Woodworkers Limited,
Quincaillerie Saint-Louis Ltée, R & J Swinamer’s Supplies
Limited, 508686 N.B. INC. operating as T.N.T. Insulation
and Building Supplies, Taylor Lumber and Building Supplies
Limited, Two by Four Lumber Sales Ltd., Walbourne
Enterprises Ltd., Western Bay Hardware Limited, White’s
Construction Limited, D. J. Williams and Sons Limited and
Woodland Building Supplies Limited Respondents
and
Attorney General of Canada and
Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: White Burgess Langille Inman v. Abbott and Haliburton Co.
2015 SCC 23
File No.: 35492.
2014: October 7; 2015: April 30.
Present: McLachlin C.J. and Abella, Rothstein, Cromwell, Moldaver, Wagner and Gascon JJ.
on appeal from the court of appeal for nova scotia
Evidence — Admissibility — Expert evidence — Basic standards for admissibility — Qualified expert — Independence and impartiality — Nature of expert’s duty to court — How expert’s duty relates to admissibility of expert’s evidence — Forensic accountant providing opinion on whether former auditors were negligent in performance of duties — Former auditors applying to strike out expert’s affidavit on grounds she was not impartial expert witness — Whether elements of expert’s duty to court go to admissibility of evidence rather than simply to its weight — If so, whether there is a threshold admissibility requirement in relation to independence and impartiality.
The shareholders started a professional negligence action against the former auditors of their company after they had retained a different accounting firm, the Kentville office of GT, to perform various accounting tasks and which in their view revealed problems with the former auditors’ work. The auditors brought a motion for summary judgment seeking to have the shareholders’ action dismissed. In response, the shareholders retained M, a forensic accounting partner at the Halifax office of GT, to review all the relevant materials and to prepare a report of her findings. Her affidavit set out her findings, including her opinion that the auditors had not complied with their professional obligations to the shareholders. The auditors applied to strike out M’s affidavit on the grounds that she was not an impartial expert witness.
The motions judge essentially agreed with the auditors and struck out M’s affidavit in its entirety. The majority of the Court of Appeal concluded that the motions judge erred in excluding M’s affidavit and allowed the appeal.
Held: The appeal should be dismissed.
The inquiry for determining the admissibility of expert opinion evidence is divided into two steps. At the first step, the proponent of the evidence must establish the threshold requirements of admissibility. These are the four factors set out in R. v. Mohan, [1994] 2 S.C.R. 9 (relevance, necessity, absence of an exclusionary rule and a properly qualified expert). Evidence that does not meet these threshold requirements should be excluded. At the second discretionary gatekeeping step, the trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence.
Expert witnesses have a duty to the court to give fair, objective and non-partisan opinion evidence. They must be aware of this duty and able and willing to carry it out. The expert’s opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense 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 the sense that it does not unfairly favour one party’s position over another. The acid test is whether the expert’s opinion would not change regardless of which party retained him or her. These concepts, of course, must be applied to the realities of adversary litigation.
Concerns related to the expert’s duty to the court and his or her willingness and capacity to comply with it are best addressed initially in the “qualified expert” element of the Mohan framework. A proposed expert witness who is unable or unwilling to fulfill his or her duty to the court is not properly qualified to perform the role of an expert. If the expert witness does not meet this threshold admissibility requirement, his or her evidence should not be admitted. Once this threshold is met, however, remaining concerns about an expert witness’s compliance with his or her duty should be considered as part of the overall cost-benefit analysis which the judge conducts to carry out his or her gatekeeping role.
Imposing this additional threshold requirement is not intended to and should not result in trials becoming longer or more complex. The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court. Absent challenge, the expert’s attestation or testimony recognizing and accepting the duty will generally be sufficient to establish that this threshold is met. However, if a party opposing admissibility shows that there is a realistic concern that the expert is unable and/or unwilling to comply with his or her duty, the proponent of the evidence has the burden of establishing its admissibility. Exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence.
The concept of apparent bias is not relevant to the question of whether or not an expert witness will be unable or unwilling to fulfill its primary duty to the court. When looking at an expert’s interest or relationship with a party, the question is not whether a reasonable observer would think that the expert is not independent. The question is whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance.
In this case, there was no basis disclosed in the record to find that M’s evidence should be excluded because she was not able and willing to provide the court with fair, objective and non-partisan evidence. The majority of the Court of Appeal was correct in concluding that the motions judge committed a palpable and overriding error in determining that M was in a conflict of interest that prevented her from giving impartial and objective evidence.
Cases Cited
Applied: R. v. Mohan, [1994] 2 S.C.R. 9; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3; adopted: R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, leave to appeal refused, [2010] 2 S.C.R. v; referred to: Lord Abinger v. Ashton (1873), L.R. 17 Eq. 358; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275; Graat v. The Queen, [1982] 2 S.C.R. 819; R. v. Abbey, [1982] 2 S.C.R. 24; R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272; Masterpiece Inc. v. Alavida Lifestyles Inc., 2011 SCC 27, [2011] 2 S.C.R. 387; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239; R. v. Boswell, 2011 ONCA 283, 85 C.R. (6th) 290; R. v. C. (M.), 2014 ONCA 611, 13 C.R. (7th) 396; National Justice Compania Naviera S.A. v. Prudential Assurance Co., [1993] 2 Lloyd’s Rep. 68, rev’d [1995] 1 Lloyd’s Rep. 455; Fellowes, McNeil v. Kansa General International Insurance Co. (1998), 40 O.R. (3d) 456; Royal Trust Corp. of Canada v. Fisherman (2000), 49 O.R. (3d) 187; R. v. Docherty, 2010 ONSC 3628; Ocean v. Economical Mutual Insurance Co., 2010 NSSC 315, 293 N.S.R. (2d) 394; Handley v. Punnett, 2003 BCSC 294; Bank of Montreal v. Citak, [2001] O.J. No. 1096 (QL); Dean Construction Co. v. M.J. Dixon Construction Ltd., 2011 ONSC 4629, 5 C.L.R. (4th) 240; Hutchingame v. Johnstone, 2006 BCSC 271; Alfano v. Piersanti, 2012 ONCA 297, 291 O.A.C. 62; Kirby Lowbed Services Ltd. v. Bank of Nova Scotia, 2003 BCSC 617; Gould v. Western Coal Corp., 2012 ONSC 5184, 7 B.L.R. (5th) 19; United City Properties Ltd. v. Tong, 2010 BCSC 111; R. v. INCO Ltd. (2006), 80 O.R. (3d) 594; R. v. Klassen, 2003 MBQB 253, 179 Man. R. (2d) 115; Gallant v. Brake-Patten, 2012 NLCA 23, 321 Nfld. & P.E.I.R. 77; R. v. Violette, 2008 BCSC 920; Armchair Passenger Transport Ltd. v. Helical Bar Plc, [2003] EWHC 367; R. (Factortame Ltd.) v. Secretary of State for Transport, [2002] EWCA Civ 932, [2003] Q.B. 381; Gallaher International Ltd. v. Tlais Enterprises Ltd., [2007] EWHC 464; Meat Corp. of Namibia Ltd. v. Dawn Meats (U.K.) Ltd., [2011] EWHC 474; Matchbet Ltd. v. Openbet Retail Ltd., [2013] EWHC 3067; FGT Custodians Pty. Ltd. v. Fagenblat, [2003] VSCA 33; Collins Thomson v. Clayton, [2002] NSWSC 366; Kirch Communications Pty Ltd. v. Gene Engineering Pty Ltd., [2002] NSWSC 485; SmithKline Beecham (Australia) Pty Ltd. v. Chipman, [2003] FCA 796, 131 F.C.R. 500; Rodriguez v. Pacificare of Texas, Inc., 980 F.2d 1014 (1993); Tagatz v. Marquette University, 861 F.2d 1040 (1988); Apple Inc. v. Motorola, Inc., 757 F.3d 1286 (2014); Agribrands Purina Canada Inc. v. Kasamekas, 2010 ONSC 166; R. v. Demetrius, 2009 CanLII 22797; International Hi-Tech Industries Inc. v. FANUC Robotics Canada Ltd., 2006 BCSC 2011; Casurina Ltd. Partnership v. Rio Algom Ltd. (2002), 28 B.L.R. (3d) 44; Prairie Well Servicing Ltd. v. Tundra Oil and Gas Ltd., 2000 MBQB 52, 146 Man. R. (2d) 284; Deemar v. College of Veterinarians of Ontario, 2008 ONCA 600, 92 O.R. (3d) 97; Coady v. Burton Canada Co., 2013 NSCA 95, 333 N.S.R. (2d) 348; Fougere v. Blunden Construction Ltd., 2014 NSCA 52, 345 N.S.R. (2d) 385.
Statutes and Regulations Cited
Act to establish the new Code of Civil Procedure, S.Q. 2014, c. 1, arts. 22, 235 [not yet in force].
Civil Procedure Rules (Nova Scotia), rr. 55.01(2), 55.04(1)(a), (b), (c).
Federal Courts Rules, SOR/98-106, r. 52.2(1)(c).
Queen’s Bench Rules (Saskatchewan), r. 5-37.
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr. 4.1.01(1), (2), 53.03(2.1).
Rules of Civil Procedure (Prince Edward Island), r. 53.03(3)(g).
Rules of Court, Y.O.I.C. 2009/65, r. 34(23).
Supreme Court Civil Rules, B.C. Reg. 168/2009, rr. 11-2(1), (2).
Authors Cited
Anderson, Glenn R. Expert Evidence, 3rd ed. Markham, Ont.: LexisNexis, 2014.
Béchard, Donald, avec la collaboration de Jessica Béchard. L’expert. Cowansville, Qué.: Yvon Blais, 2011.
Canadian Encyclopedic Digest, Ontario 4th ed., vol. 24. Toronto: Carswell, 2014 (loose-leaf updated 2014, release 6).
Chamberland, Luc. Le nouveau Code de procédure civile commenté. Cowansville, Qué.: Yvon Blais, 2014.
Corpus Juris Secundum, vol. 32. Eagan, Minn.: Thomson West, 2008.
Cross and Tapper on Evidence, 12th ed. by Colin Tapper. Oxford: Oxford University Press, 2010.
Freckelton, Ian, and Hugh Selby. Expert Evidence: Law, Practice, Procedure and Advocacy, 5th ed. Pyrmont, N.S.W.: Lawbook Co., 2013.
Halsbury’s Laws of Canada: Evidence, 2014 Reissue, contributed by Hamish C. Stewart. Markham, Ont.: LexisNexis, 2014.
Lederman, Sidney N., Alan W. Bryant and Michelle K. Fuerst. The Law of Evidence in Canada, 4th ed. Markham, Ont.: LexisNexis, 2014.
McWilliams’ Canadian Criminal Evidence, 5th ed. by S. Casey Hill, David M. Tanovich and Louis P. Strezos, eds. Toronto: Canada Law Book, 2013 (loose-leaf updated 2014, release 5).
Michell, Paul, and Renu Mandhane. “The Uncertain Duty of the Expert Witness” (2005), 42 Alta. L. Rev. 635.
Ontario. Civil Justice Reform Project: Summary of Findings & Recommendations (Osborne Report). Toronto: Ministry of Attorney General, 2007.
Ontario. Inquiry into Pediatric Forensic Pathology in Ontario: Report (Goudge Report). Toronto: Ministry of the Attorney General, 2008.
Ontario. The Commission on Proceedings Involving Guy Paul Morin: Report (Kaufman Report). Toronto: Ministry of the Attorney General, 1998.
Paciocco, David. “Taking a ‘Goudge’ out of Bluster and Blarney: an ‘Evidence-Based Approach’ to Expert Testimony” (2009), 13 Can. Crim. L.R. 135.
Paciocco, David M. “Unplugging Jukebox Testimony in an Adversarial System: Strategies for Changing the Tune on Partial Experts” (2009), 34 Queen’s L.J. 565.
Paciocco, David M., and Lee Stuesser. The Law of Evidence, 7th ed. Toronto: Irwin Law, 2015.
Phipson on Evidence, 18th ed. by Hodge M. Malek et al., eds. London: Sweet & Maxwell, 2013.
Royer, Jean-Claude, et Sophie Lavallée. La preuve civile, 4e éd. Cowansville, Qué.: Yvon Blais, 2008.
Thayer, James Bradley. A Preliminary Treatise on Evidence at the Common Law. Boston: Little, Brown and Co., 1898 (reprinted South Hackensack, N.J.: Rothman Reprints, Inc., 1969).
United Kingdom. Access to Justice: Final Report (Woolf Report). London: HMSO, 1996.
APPEAL from a judgment of the Nova Scotia Court of Appeal (MacDonald C.J. and Oland and Beveridge JJ.A.), 2013 NSCA 66, 330 N.S.R. (2d) 301, 361 D.L.R. (4th) 659, 36 C.P.C. (7th) 22, [2013] N.S.J. No. 259 (QL), 2013 CarswellNS 360 (WL Can.), setting aside in part a decision of Pickup J., 2012 NSSC 210, 317 N.S.R. (2d) 283, 26 C.P.C. (7th) 280, [2012] N.S.J. No. 289 (QL), 2012 CarswellNS 376 (WL Can.). Appeal dismissed.
Alan D’Silva, James Wilson and Aaron Kreaden, for the appellants.
Jon Laxer and Brian F. P. Murphy, for the respondents.
Michael H. Morris, for the intervener the Attorney General of Canada.
Matthew Gourlay, for the intervener the Criminal Lawyers’ Association (Ontario).
The judgment of the Court was delivered by
Cromwell J. —
I. Introduction and Issues
[1] Expert opinion evidence can be a key element in the search for truth, but it may also pose special dangers. To guard against them, the Court over the last 20 years or so has progressively tightened the rules of admissibility and enhanced the trial judge’s gatekeeping role. These developments seek to ensure that expert opinion evidence meets certain basic standards before it is admitted. The question on this appeal is whether one of these basic standards for admissibility should relate to the proposed expert’s independence and impartiality. In my view, it should.
[2] 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.
[3] Applying these principles, I agree with the conclusion reached by the majority of the Nova Scotia Court of Appeal and would therefore dismiss this appeal with costs.
II. Overview of the Facts and Judicial History
A. Facts and Proceedings
[4] The appeal arises out of a professional negligence action by the respondents (who I will call the shareholders) against the appellants, the former auditors of their company (I will refer to them as the auditors). The shareholders started the action after they had retained a different accounting firm, the Kentville office of Grant Thornton LLP, to perform various accounting tasks and which in their view revealed problems with the auditors’ previous work. The central allegation in the action is that the auditors’ failure to apply generally accepted auditing and accounting standards while carrying out their functions caused financial loss to the shareholders. The main question in the action boils down to whether the auditors were negligent in the performance of their professional duties.
[5] The auditors brought a motion for summary judgment in August of 2010, seeking to have the shareholders’ action dismissed. In response, the shareholders retained Susan MacMillan, a forensic accounting partner at the Halifax office of Grant Thornton, to review all the relevant materials, including the documents filed in the action, and to prepare a report of her findings. Her affidavit set out her findings, including her opinion that the auditors had not complied with their professional obligations to the shareholders. The auditors applied to strike out Ms. MacMillan’s affidavit on the grounds that she was not an impartial expert witness. They argued that the action comes down to a battle of opinion between two accounting firms — the auditors’ and the expert witness’s. Ms. MacMillan’s firm could be exposed to liability if its approach was not accepted by the court and, as a partner, Ms. MacMillan could be personally liable. Her potential liability if her opinion were not accepted gives her a personal financial interest in the outcome of the litigations and this, in the auditors’ submission, ought to disqualify her from testifying.
[6] The proceedings since have been neither summary nor resulted in a judgment. Instead, the litigation has been focused on the expert evidence issue; the summary judgment application has not yet been heard on its merits.
B. Judgments Below
(1) Nova Scotia Supreme Court: 2012 NSSC 210, 317 N.S.R. (2d) 283 (Pickup J.)
[7] Pickup J. essentially agreed with the auditors and struck out the MacMillan affidavit in its entirety: para. 106. He found that, in order to be admissible, an expert’s evidence “must be, and be seen to be, independent and impartial”: para. 99. Applying that test, he concluded that this was one of those “clearest of cases where the reliability of the expert . . . does not meet the threshold requirements for admissibility”: para. 101.
(2) Nova Scotia Court of Appeal: 2013 NSCA 66, 330 N.S.R. (2d) 301 (Beveridge J.A., Oland J.A. Concurring; MacDonald C.J.N.S. Dissenting)
[8] The majority of the Court of Appeal concluded that the motions judge erred in excluding Ms. MacMillan’s affidavit. Beveridge J.A. wrote that while the court has discretion to exclude expert evidence due to actual bias or partiality, the test adopted by the motions judge — that an expert “must be, and be seen to be, independent and impartial” — was wrong in law. He ought not to have ruled her evidence inadmissible and struck out her affidavit.
[9] MacDonald C.J.N.S., dissenting, would have upheld the motions judge’s decision because he had properly articulated and applied the relevant legal principles.
III. Analysis
A. Overview
[10] In my view, expert witnesses have a duty to the court to give fair, objective and non-partisan opinion evidence. They must be aware of this duty and able and willing to carry it out. If they do not meet this threshold requirement, their evidence should not be admitted. Once this threshold is met, however, concerns about an expert witness’s independence or impartiality should be considered as part of the overall weighing of the costs and benefits of admitting the evidence. This common law approach is, of course, subject to statutory and related provisions which may establish different rules of admissibility.
B. Expert Witness Independence and Impartiality
[11] There have been long-standing concerns about whether expert witnesses hired by the parties are impartial in the sense that they are expressing their own unbiased professional opinion and whether they are independent in the sense that their opinion is the product of their own, independent conclusions based on their own knowledge and judgment: see, e.g., G. R. Anderson, Expert Evidence (3rd ed. 2014), at p. 509; S. N. Lederman, A. W. Bryant and M. K. Fuerst, The Law of Evidence in Canada (4th ed. 2014), at p. 783. As Sir George Jessel, M.R., put it in the 1870s, “[u]ndoubtedly there is a natural bias to do something serviceable for those who employ you and adequately remunerate you. It is very natural, and it is so effectual, that we constantly see persons, instead of considering themselves witnesses, rather consider themselves as the paid agents of the person who employs them”: Lord Abinger v. Ashton (1873), L.R. 17 Eq. 358, at p. 374.
[12] Recent experience has only exacerbated these concerns; we are now all too aware that an expert’s lack of independence and impartiality can result in egregious miscarriages of justice: R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 52. As observed by Beveridge J.A. in this case, The Commission on Proceedings Involving Guy Paul Morin: Report (1998) authored by the Honourable Fred Kaufman and the Inquiry into Pediatric Forensic Pathology in Ontario: Report (2008) conducted by the Honourable Stephen T. Goudge provide two striking examples where “[s]eemingly solid and impartial, but flawed, forensic scientific opinion has played a prominent role in miscarriages of justiceˮ: para. 105. Other reports outline the critical need for impartial and independent expert evidence in civil litigation: ibid., at para. 106; see the Right Honourable Lord Woolf, Access to Justice: Final Report (1996); the Honourable Coulter A. Osborne, Civil Justice Reform Project: Summary of Findings & Recommendations (2007).
[13] To decide how our law of evidence should best respond to these concerns, we must confront several questions: Should concerns about potentially biased expert opinion go to admissibility or only to weight?; If to admissibility, should these concerns be addressed by a threshold requirement for admissibility, by a judicial discretion to exclude, or both?; At what point do these concerns justify exclusion of the evidence?; And finally, how is our response to these concerns integrated into the existing legal framework governing the admissibility of expert opinion evidence? To answer these questions, we must first consider the existing legal framework governing admissibility, identify the duties that an expert witness has to the court and then turn to how those duties are best reflected in that legal framework.
C. The Legal Framework
(1) The Exclusionary Rule for Opinion Evidence
[14] To the modern general rule that all relevant evidence is admissible there are many qualifications. One of them relates to opinion evidence, which is the subject of a complicated exclusionary rule. Witnesses are to testify as to the facts which they perceived, not as to the inferences — that is, the opinions — that they drew from them. As one great evidence scholar put it long ago, it is “for the jury to form opinions, and draw inferences and conclusions, and not for the witness”: J. B. Thayer, A Preliminary Treatise on Evidence at the Common Law (1898; reprinted 1969), at p. 524; see also C. Tapper, Cross and Tapper on Evidence (12th ed. 2010), at p. 530. While various rationales have been offered for this exclusionary rule, the most convincing is probably that these ready-formed inferences are not helpful to the trier of fact and might even be misleading: see, e.g., Graat v. The Queen, [1982] 2 S.C.R. 819, at p. 836; Halsbury’s Laws of Canada: Evidence (2014 Reissue), at para. HEV-137 “General rule against opinion evidence”.
[15] Not all opinion evidence is excluded, however. Most relevant for this case is the exception for expert opinion evidence on matters requiring specialized knowledge. As Prof. Tapper put it, “the law recognizes that, so far as matters calling for special knowledge or skill are concerned, judges and jurors are not necessarily equipped to draw true inferences from facts stated by witnesses. A witness is therefore allowed to state his opinion about such matters, provided he is expert in them”: p. 530; see also R. v. Abbey, [1982] 2 S.C.R. 24, at p. 42.
(2) The Current Legal Framework for Expert Opinion Evidence
[16] Since at least the mid-1990s, the Court has responded to a number of concerns about the impact on the litigation process of expert evidence of dubious value. The jurisprudence has clarified and tightened the threshold requirements for admissibility, added new requirements in order to assure reliability, particularly of novel scientific evidence, and emphasized the important role that judges should play as “gatekeepers” to screen out proposed evidence whose value does not justify the risk of confusion, time and expense that may result from its admission.
[17] We can take as the starting point for these developments the Court’s decision in R. v. Mohan, [1994] 2 S.C.R. 9. That case described the potential dangers of expert evidence and established a four-part threshold test for admissibility. The dangers are well known. One is that the trier of fact will inappropriately defer to the expert’s opinion rather than carefully evaluate it. As Sopinka J. observed in Mohan:
There is a danger that expert evidence will be misused and will distort the fact-finding process. Dressed 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. [p. 21]
(See also D.D., at para. 53; R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at paras. 25-26; R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 46.)
[18] The point is to preserve trial by judge and jury, not devolve to trial by expert. There is a risk that the jury “will be unable to make an effective and critical assessment of the evidenceˮ: R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 90, leave to appeal refused, [2010] 2 S.C.R. v. The trier of fact must be able to use its “informed judgment”, not simply decide on the basis of an “act of faith” in the expert’s opinion: J.-L.J., at para. 56. The risk of “attornment to the opinion of the expertˮ is also exacerbated by the fact that expert evidence is resistant to effective cross-examination by counsel who are not experts in that field: D.D., at para. 54. The cases address a number of other related concerns: the potential prejudice created by the expert’s reliance on unproven material not subject to cross-examination (D.D., at para. 55); the risk of admitting “junk science” (J.-L.J., at para. 25); and the risk that a “contest of experts” distracts rather than assists the trier of fact (Mohan, at p. 24). Another well-known danger associated with the admissibility of expert evidence is that it may lead to an inordinate expenditure of time and money: Mohan, at p. 21; D.D., at para. 56; Masterpiece Inc. v. Alavida Lifestyles Inc., 2011 SCC 27, [2011] 2 S.C.R. 387, at para. 76.
[19] To address these dangers, Mohan established a basic structure for the law relating to the admissibility of expert opinion evidence. That structure has two main components. First, there are four threshold requirements that the proponent of the evidence must establish in order for proposed expert opinion evidence to be admissible: (1) relevance; (2) necessity in assisting the trier of fact; (3) absence of an exclusionary rule; and (4) a properly qualified expert (Mohan, at pp. 20-25; see also Sekhon, at para. 43). Mohan also underlined the important role of trial judges in assessing whether otherwise admissible expert evidence should be excluded because its probative value was overborne by its prejudicial effect — a residual discretion to exclude evidence based on a cost-benefit analysis: p. 21. This is the second component, which the subsequent jurisprudence has further emphasized: Lederman, Bryant and Fuerst, at pp. 789-90; J.-L.J., at para. 28.
[20] Mohan and the jurisprudence since, however, have not explicitly addressed how this “cost-benefit” component fits into the overall analysis. The reasons in Mohan engaged in a cost-benefit analysis with respect to particular elements of the four threshold requirements, but they also noted that the cost-benefit analysis could be an aspect of exercising the overall discretion to exclude evidence whose probative value does not justify its admission in light of its potentially prejudicial effects: p. 21. The jurisprudence since Mohan has also focused on particular aspects of expert opinion evidence, but again without always being explicit about where additional concerns fit into the analysis. The unmistakable overall trend of the jurisprudence, however, has been to tighten the admissibility requirements and to enhance the judge’s gatekeeping role.
[21] So, for example, the necessity threshold criterion was emphasized in cases such as D.D. The majority underlined that the necessity requirement exists “to ensure that the dangers associated with expert evidence are not lightly tolerated” and that “[m]ere relevance or ‘helpfulness’ is not enough”: para. 46. Other cases have addressed the reliability of the science underlying an opinion and indeed technical evidence in general: J.-L.J.; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239. The question remains, however, as to where the cost-benefit analysis and concerns such as those about reliability fit into the overall analysis.
[22] Abbey (ONCA) introduced helpful analytical clarity by dividing the inquiry into two steps. With minor adjustments, I would adopt that approach.
[23] At the first step, the proponent of the evidence must establish the threshold requirements of admissibility. These are the four Mohan factors (relevance, necessity, absence of an exclusionary rule and a properly qualified expert) and in 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: J.-L.J., at paras. 33, 35-36 and 47; Trochym, at para. 27; Lederman, Bryant and Fuerst, at pp. 788-89 and 800-801. Relevance at this threshold stage refers to logical relevance: Abbey (ONCA), at para. 82; J.-L.J., at para. 47. Evidence that does not meet these threshold requirements should be excluded. Note that I would retain necessity as a threshold requirement: D.D., at para. 57; see D. M. Paciocco and L. Stuesser, The Law of Evidence (7th ed. 2015), at pp. 209-10; R. v. Boswell, 2011 ONCA 283, 85 C.R. (6th) 290, at para. 13; R. v. C. (M.), 2014 ONCA 611, 13 C.R. (7th) 396, at para. 72.
[24] At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. The required balancing exercise has been described in various ways. In Mohan, Sopinka J. spoke of the “reliability versus effect factor” (p. 21), while in J.-L.J., Binnie J. spoke about “relevance, reliability and necessity” being “measured against the counterweights of consumption of time, prejudice and confusion”: para. 47. Doherty J.A. summed it up well in Abbey, stating that the “trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence”: para. 76.
[25] With this delineation of the analytical framework, we can turn to the nature of an expert’s duty to the court and where it fits into that framework.
D. The Expert’s Duty to the Court or Tribunal
[26] There is little controversy about the broad outlines of the expert witness’s duty to the court. As Anderson writes, “[t]he duty to provide independent assistance to the Court by way of objective unbiased opinion has been stated many times by common law courts around the world”: p. 227. I would add that a similar duty exists in the civil law of Quebec: J.-C. Royer and S. Lavallée, La preuve civile (4th ed. 2008), at para. 468; D. Béchard, with the collaboration of J. Béchard, L’expert (2011), c. 9; An Act to establish the new Code of Civil Procedure, S.Q. 2014, c. 1, art. 22 (not yet in force); L. Chamberland, Le nouveau Code de procédure civile commenté (2014), at pp. 14 and 121.
[27] One influential statement of the elements of this duty are found in the English case National Justice Compania Naviera S.A. v. Prudential Assurance Co., [1993] 2 Lloyd’s Rep. 68 (Q.B.). Following an 87-day trial, Cresswell J. believed that a misunderstanding of the duties and responsibilities of expert witnesses contributed to the length of the trial. He listed in obiter dictum duties and responsibilities of experts, the first two of which have particularly influenced the development of Canadian law:
1. 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 . . . .
2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his [or her] expertise . . . . An expert witness in the High Court should never assume the role of an advocate. [Emphasis added; citation omitted; p. 81.]
(These duties were endorsed on appeal: [1995] 1 Lloyd’s Rep. 455 (C.A.), at p. 496.)
[28] Many provinces and territories have provided explicit guidance related to the duty of expert witnesses. In Nova Scotia, for example, the Civil Procedure Rules require that an expert’s report be signed by the expert who must make (among others) the following representations to the court: that the expert is providing an objective opinion for the assistance of the court; that the expert is prepared to apply independent judgment when assisting the court; and that the report includes everything the expert regards as relevant to the expressed opinion and draws attention to anything that could reasonably lead to a different conclusion (r. 55.04(1)(a), (b) and (c)). While these requirements do not affect the rules of evidence by which expert opinion is determined to be admissible or inadmissible, they provide a convenient summary of a fairly broadly shared sense of the duties of an expert witness to the court.
[29] There are similar descriptions of the expert’s duty in the civil procedure rules in other Canadian jurisdictions: Anderson, at p. 227; The Queen’s Bench Rules (Saskatchewan), r. 5-37; Supreme Court Civil Rules, B.C. Reg. 168/2009, r. 11-2(1); Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 4.1.01(1); Rules of Court, Y.O.I.C. 2009/65, r. 34(23); An Act to establish the new Code of Civil Procedure, art. 22. Moreover, the rules in Saskatchewan, British Columbia, Ontario, Nova Scotia, Prince Edward Island, Quebec and the Federal Courts require experts to certify that they are aware of and will comply with their duty to the court: Anderson, at p. 228; Saskatchewan Queen’s Bench Rules, r. 5-37(3); British Columbia Supreme Court Civil Rules, r. 11-2(2); Ontario Rules of Civil Procedure, r. 53.03(2.1); Nova Scotia Civil Procedure Rules, r. 55.04(1)(a); Prince Edward Island Rules of Civil Procedure, r. 53.03(3)(g); An Act to establish the new Code of Civil Procedure, art. 235 (not yet in force); Federal Courts Rules, SOR/98-106, r. 52.2(1)(c).
[30] The formulation in the Ontario Rules of Civil Procedure is perhaps the most succinct and complete statement of the expert’s duty to the court: to provide opinion evidence that is fair, objective and non-partisan (r. 4.1.01(1)(a)). The Rules are also explicit that this duty to the court prevails over any obligation owed by the expert to a party (r. 4.1.01(2)). Likewise, the newly adopted Act to establish the new Code of Civil Procedure of Quebec explicitly provides, as a guiding principle, that the expert’s duty to the court overrides the parties’ interests, and that the expert must fulfill his or her primary duty to the court “objectively, impartially and thoroughly”: art. 22; Chamberland, at pp. 14 and 121.
[31] Many of the relevant rules of court simply reflect the duty that an expert witness owes to the court at common law: Anderson, at p. 227. In my opinion, this is true of the Nova Scotia rules that apply in this case. Of course, it is always open to each jurisdiction to impose different rules of admissibility, but in the absence of a clear indication to that effect, the common law rules apply in common law cases. I note that in Nova Scotia, the Civil Procedure Rules explicitly provide that they do not change the rules of evidence by which the admissibil