County Held Liable To Farmer For Excessive Use of Road Salt

In the case indexed as Steadman v. Lambton (County) 2015 ONSC 101, the plaintiff, (“Steadman”) and his wife, lived on a farm bordering Nauvoo Road in Lambton County, Ontario (“County”).  Mr. Steadman had been a full-time farmer for all of his adult life.  His wife was a retired nurse.  

 

Mr. Steadman farmed wheat and soybeans on his land and had been doing so for more than 40 years.  In the mid to late 1990s he observed crop damage due to the County spraying salt on Nauvoo Road.  He sued the County for nuisance, claiming crop losses, diminution of the value of his farm.  Mr. Steadman also claimed that the farm was now burdened with a "stigma' of having been damaged by the salt.   

 

The County defended the action claiming that the real culprit was the poor drainage on Mr. Steadman’s property; he had taken no steps to fence the property and restrict the wind's distribution of salt or use gypsum to mediate the effects of salt on his land.

 

The matter proceeded to trial before Justice Carey of the Ontario Superior Court of Justice.

 

Justice Carey reviewed extensive factual and expert evidence with respect to both liability and damages.  He concluded on all of the evidence, that the pattern of salt dispersal on Mr. Steadman’s farm was consistent with his engineering expert's opinion that higher levels of salt contamination were found closest to the road.  The only reasonable logical inference was that the salt was coming from road spray and off the road itself.  Justice Carey found on the balance of probabilities that the dispersion of the road salt along the portion of the land that bordered the road was the cause of the damage to Mr. Steadman's wheat and soya crops from about 1999 to the date of trial.

 

Justice Carey relied on the leading case in Ontario in considering whether road salt constitutes a nuisance – Schenck v. The Queen; Rokeby v. The Queen.  In that 1981 case, (which was upheld on appeal to the Ontario Court of Appeal and Supreme Court of Canada), Justice Robins balanced the interests between the plaintiffs' private property rights with the importance of proper highway maintenance to the public at large.  He found that on a balancing of the conflicting interests it would be unreasonable to compel the plaintiffs to continue to suffer interference for an indeterminate time without compensation from the government.  The injury was a cost of highway maintenance and the harm suffered by the plaintiffs was greater than they should be required to bear in the circumstances, at least without compensation.   Fairness between the citizen and the state demands that the burden imposed be borne by the public generally and not by the plaintiff farmers alone. 

 

As for damages, Justice Carey assessed damages at approximately $107,000 for crop losses, the cost of soil and plant tissue analysis, and diminution in the value of Mr. Steadman’s property.   

He concluded that on the evidence, Mr. Steadman had not satisfied him that there should be separate damage award for stigma (the seminal case in Ontario on stigma is Tridan Developments Limited v. Shell Canada Products Limited).  In that case, the Ontario Court of Appeal considered whether there would be a residual reduction in the value of land, even after it had been restored to a pristine condition caused by the knowledge that it had once been polluted.

Justice Carey reviewed the cases following Tridan as well as the evidence presented by Mr. Steadman.  He concluded that the salt contamination posed no human safety concern.  Additionally, he did not accept that the highest and best use of the land was cash crop farming.  Portions of the farm were unaffected by the salt and there was the ability to sever and/or consolidate the farm and its buildings for other uses.

Regards,

Blair

Supreme Court to Pot Users: No Need To Smoke Your Medicine

The Supreme Court of Canada has ruled that users of medical marihuana need not “smoke their medicine” but rather can get access to the drug in other forms.  In the case of R. v. Smith, 2015 SCC 34, the court ruled that under the Controlled Drugs and Substances Act (“Act”), a medical access regime that permits access to only dried marihuana unjustifiably violates the guarantee of life, liberty and security of a person contrary to section 7 of the Canadian Charter of Rights and Freedoms (“Charter”). 

 

The Act prohibits the possession, production and distribution of cannabis, its active compounds and its derivatives.  However, in recognition of the fact that controlled substances may have beneficial uses, the Act empowers the government to create exemptions by regulation for medical, scientific or industrial purposes.  The Marihuana Medical Access Regulations created such an exemption for people who can demonstrate a medical need for cannabis.  Applicants are required to provide a declaration from a medical practitioner certifying that conventional treatments were ineffective or medically inappropriate for treatment of their medical condition.  Once they had met all regulatory requirements patients were legally authorized to possess dried marihuana, defined as “harvested marihuana that has been subjected to any drying process”.

 

The regulations were replaced in 2013 with new regulations, but the situation remained unchanged – for medical marihuana patients the exemptions from the offence was still confined to dried marihuana. 

 

In this case, the accused, Owen Smith worked for an entity called the Cannabis Buyers Club of Canada located on Vancouver Island.  The club sold marihuana and cannabis derivative products to its members.  It sold dried marihuana for smoking but also edible and topical cannabis products – cookies, gel capsules, rubbing oil, topical patches, butters and lip balms.  It also provided members with recipe books for how to make products by extracting the active compounds from dried marihuana.

 

Responding to a complaint about the smell of pot, police raided Mr. Smith’s apartment and charged him with possession of THC for the purpose of trafficking contrary to the Act and with possession of cannabis contrary to the Act.  

 

At trial, the judge held that the prohibition on non-dried forms of medical marihuana unjustifiably infringed section 7 of the Charter.  A majority of the British Columbia Court of Appeal dismissed the Crown’s appeal.  The matter was further appealed to the Supreme Court of Canada.

 

The judgment of the seven member court was delivered by “the court”.  The court dismissed the appeal.  It held that the prohibition on possession of non-dried forms of medical marihuana limited the section 7 Charter right to liberty of the person in two ways:  (1)  the prohibition deprived Smith as well as medical marihuana users of their liberty by imposing a threat of imprisonment or conviction under the Act;  and (2)  it limited the liberty of medical users by foreclosing reasonable medical choices through the threat of criminal prosecution.  The court ruled that by forcing a person to choose between a legal but inadequate treatment (smoking) and an illegal but more effective one, the law also infringed security of the person. 

 

The court held that the limits in the regulations were contrary to the principles of fundamental justice because they were arbitrary.  The effects of the prohibition contradicted the objective of protecting health and safety. 

 

The evidence presented at trial amply supported the trial judge’s conclusions that inhaling marihuana can present health risks and that it is less effective for some conditions than administration of cannabis derivatives.   In other words, there was no connection between the prohibition of non-dried forms of medical marihuana and the health and safety of the patients who qualified for legal access to it.   

 

The expert evidence, along with the anecdotal evidence from the medical marihuana patients who testified did more than establish a subjective preference for oral or topical treatment forms.  The evidence demonstrated that the decision to use non-dried forms of marihuana for treatment of some serious health conditions was medically reasonable.  To put it another way, there were cases where alternative forms of cannabis will be “reasonably required” for the treatment of serious illnesses.  In those circumstances, the criminalization of access to the treatment infringed the liberty and the security of the person.

 

In this case, the objective of the prohibition frustrated the requirement under section 1 of the Charter that the limit on the right be rationally connected to a pressing objective.  The court found that it was not and therefore the infringement of section 7 was not justified under section 1 of the Charter.

 

Regards,

 

Blair

Supreme Court Denies Aboriginal Accused's Right to Representative Jury

The Supreme Court of Canada has recently tackled ( and in my view, wrongly decided) the issue of representativeness of Aboriginal people on Canadian juries.  In the case of R. v. Kokopenace, 2015 SCC 28, the appellant, Clifford Kokopenace, was an Aboriginal Canadian from the Grassy Narrows First Nations Reserve in the District of Kenora, Ontario.  He was charged with second degree murder for stabbing his friend to death in a fight.  He was tried by a judge and jury in 2008, acquitted of murder but convicted of manslaughter.  Prior to his sentencing, Kokopenace’s lawyer learned that there may have been problems with including Aboriginal on-reserve residents on the jury roll for the District of Kenora which raised questions about the representativeness of the jury in his case.  The issue was raised for the first time on appeal to the Ontario Court of Appeal.

 

Mr. Kokopenace argued at the Court of Appeal that because his jury was chosen from a jury roll that did not adequately ensure that Aboriginal on-reserve residents were included, his rights under sections 11(d), 11(f) and 15 of the Charter of Rights and Freedoms (the “Charter”) were violated. 

 

Section 11(d) of the Charter provides that any person charged with an offence has the right... to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. 

 

Section 11(f) of the Charter provides any person charged with an offence has the right…except in the case of  an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for 5 years or a more severe punishment. 

 

Section 15 of the Charter is the “equality rights” sections that provides that at 15(1) every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 

 

After reviewing the fresh evidence that was introduced on the appeal regarding the efforts that Ontario had made in preparing the jury rolls for the District of Kenora, two out of the three judges of the Ontario Court of Appeal held that Mr. Kokopenace’s section 11(d) and 11(f) rights had been violated and ordered a new trial on that basis.  The dissenting judge held that Ontario had made reasonable efforts to include Aboriginal on-reserve residents on the jury roll and would have dismissed the appeal.  All three judges rejected Mr. Kokopenace’s section 15 claims.

 

On appeal to the Supreme Court of Canada before a seven member court, the Crown was successful in having the Supreme Court overturn the decision of the Ontario Court of Appeal.   Below are the somewhat lengthy and complex reasoning of the court.  The majority decision was written by Justice Moldaver.

 

Justice Moldaver reviewed in detail the jury selection process in the District of Kenora.  He referred to the Ontario Juries Act which used municipal assessment lists obtained from Municipal Property Assessment Corporation (“MPAC”).  However, MPAC data does not capture individuals who reside on First Nations Reserves.  For that reason, the Juries Act provides a separate process for including on-reserve residents (calling them Indian reserves).  The aim of both sections is that each municipality or reserve be sent the number of jury notices that is approximately proportionate to that municipality's or reserve’s percentage of the total population in the judicial district. 

 

Staff in the Court Services Division (“CSD”) are responsible for virtually the entire process of selecting on-reserve individuals for the jury roll.  Ontario’s Ministry of the Attorney General has provided CSD staff with guidance on the process to follow in doing so.  The guidelines provided encouraged staff to attempt to obtain the best lists of on-reserve residents available. 

 

The problem was that the District of Kenora contains a large number of reserves which are associated with approximately 46 different First Nations.  The on-reserve adult population makes up between 21 – 32 per cent of the adult population in the district, however, the response rate from on-reserve residents to jury questionnaires was below 10 per cent. 

 

There had been a significant decline in the rates of response to jury notices from on-reserve residents in the District of Kenora over the years.  In 1993, the return rate for completed jury questionnaires was approximately 33 per cent for on-reserve residents (compared to about 70 per cent for off-reserve communities). 

 

Many of the Aboriginal communities in the District of Kenora are remote and are accessible only by air.  Individuals typically do not have mailboxes at their place of residence.  Some have access to a community mailbox or have an individual box in the post office.  For others, mail is held at the post office until they retrieve it.  When jury notices are sent to on-reserve residents, they are sent by “general delivery”.  Mail delivered in this manner is sent to the community post office but not to individual or community postal boxes.  The CSD relies on postal clerks with local knowledge of the residents of the community in order to ensure that these notices are properly delivered. 

 

There was, not surprisingly, much confusion in the District of Kenora and in 2007 the rate of return for on-reserve residents was approximately 10 per cent compared to an off-reserve response rate of 56 per cent.  Many of the jury notices were returned by the post offices as undeliverable. 

 

Ultimately, only 10 per cent of the questionnaires sent to on-reserve residents were returned and only 5.7 per cent of on-reserve residents who returned the questionnaires were eligible to serve as jurors.  Mr. Kokopenace’s jury was selected from a jury panel of 175 jurors, 8 of who were on-reserve residents.  No on-reserve residents were selected for Mr. Kokopenace’s jury. 

 

The Ontario Court of Appeal delivered three sets of reasons.  Justices LaForme and Goudge held in Mr. Kokopenace’s favour.  Justice Rouleau held there was no Charter violation.

 

Since 2008, Ontario has expanded its efforts to include on-reserve residents in the jury selection process.  In 2011, for example, Ontario appointed former Supreme Court Justice Frank Iacobucci as an independent reviewer to study the issue of the under-representation of Aboriginal on-reserve residents on juries and to make recommendations for resolving the problem.  Justice Iacobucci's report was not released until 2013.  The report revealed that the problem is multi-faceted and extends well beyond the difficulty of obtaining accurate source lists.  It explains that the problem is linked to the long history of Aboriginal estrangement from the justice system and the mistrust of that system that has resulted.  Ontario has since begun implementing some of the report’s recommendations. 

 

The majority of the Court of Appeal emphasised that the analysis of Ontario’s efforts to increase Aboriginal on-reserve representativeness must be guided by both the honour of the Crown and the principles in the Supreme Court case of R. v. Gladue.  Justices LaForme and Goudge held that Ontario was required to consider the estrangement of Aboriginal peoples from the justice system and to work with First Nations governments to create a solution to the problem.  It was unreasonable for Ontario to delegate such responsibilities to a junior public servant in the CSD. 

 

The majority also concluded that Ontario had improperly focused its attention on obtaining updated lists and was required to investigate the causes of the problem and to actively encourage responses from on-reserve residents.  Its failure to do so meant that it had not made reasonable efforts to provide a fair opportunity for the inclusion of Aboriginal on-reserve residents. 

 

In dissent, Justice Rouleau found that Ontario’s efforts were reasonable in light of what was known at the time.  In other words, at the time relevant to the appeal (before the Iacobucci report) everyone was under the impression that the low response rates were caused by outdated lists. 

 

The Supreme Court of Canada - Justices Rothstein, Moldaver, Wagner and Gascon, with partially concurring reasons written by Justice Karakatsanis agreed with the dissenting judge of the Ontario Court of Appeal.  It held that representativeness is an important feature of our jury system but its meaning is circumscribed.  What is required is a representative cross-section of society, honestly and fairly chosen.  Representativeness focuses on the process used to compile a jury roll, not its ultimate composition.  

 

The court held that to determine if the state has met its obligation in that respect, the question was whether it had provided a fair opportunity for a broad cross-section of society to participate in the jury process.  To do so, the state must make reasonable efforts to:

 

1. compile the jury roll using random selection from lists that draw from a broad cross-section of society; and
2. deliver jury notices to those who have been randomly selected.   

 

When this process is followed, the jury roll with be representative and an accused’s Charter right to a representative jury will be respected.

 

As to the alleged Charter violations, the court held that the role of representativeness under section 11(d) is limited to its effect on independence and impartiality.  Section 11(d) will be violated if the process used to compile the jury roll raises an appearance of bias at the systemic level, i.e. deliberate exclusion of a particular group or efforts in compiling the jury roll that are so deficient as to create an appearance of impartiality.  The court held that that was not the case in respect of Mr. Kokopenace’s jury. 

 

The role of representativeness in section 11(f) is broader.  It not only promotes impartiality, it legitimizes the jury’s role as the “conscious of the community” and promotes public trust in the criminal justice system.  If there is a question of unintentional exclusion, it is the quality of the state’s efforts in compiling the jury roll that will determine whether an accused’s right to a representative jury has been respected.  If the state makes reasonable efforts, but part of the population is excluded because it declines to participate (for whatever reason), the court held that the state will nonetheless have met its constitutional obligation. 

 

The majority held that representativeness is not about targeting particular groups for inclusion on the jury roll.  The province was therefore not required to address systemic problems contributing to the reluctance of Aboriginal on-reserve residents to participate in the jury process.  In other words, the accused’s individual right is not the appropriate mechanism for repairing the broader relationship between societal groups and the criminal justice system. 

 

As written by Justice Moldaver, the Supreme Court held that there was no right to a jury roll of a particular composition nor to one that proportionately represents all the diverse groups in Canadian society. 

 

The majority held that the province had met its representativeness obligation in the case and dismissed the appeal. 

Regards,

Blair

 

Court of Appeal Sets Aside "Breathtakingly Broad" Receivership Order

Akagi v Synergy Group (2000) Inc., 2015 ONCA 368, 14/4731,

 

In this case, the Ontario Court of Appeal overturned  a series of ex parte orders that put in place an investigative receivership over three judgment debtors from an initial fraud proceeding between Mr. Trent Akagi and Synergy Group ("Synergy"). The orders were overturned for two main reasons: first, they were deemed to be "breathtakingly broad" because while the initial proceeding involved only one plaintiff and three defendants, the applications for receivership listed 43 non-party "Alleged Offenders", and appeared to be concerned with the interests of over 3800 victims of potential fraud. Second, the applications were granted ex parte without full and fair disclosure from the Receiver. 

From 2006 to 2008, Mr. Akagi invested approximately $210,000 into small businesses managed by Integrated Business Concepts ("IBC") as part of a tax loss allocation program marketed and sold by Synergy Group ("Synergy"). Representatives of Synergy told Mr. Akagi that IBC's businesses would generate legitimate losses, thereby allowing him to claim his proportionate share of those losses on his tax returns in order to achieve tax savings. However, in 2008 the CRA and the RCMP launched fraud investigations into Synergy's tax allocation program. Mr. Akagi was disallowed from claiming the IBC tax losses, amounting to $104,000, on his 2006 tax return. He was required to pay approx. $55,000 in penalties to the CRA and sued Synergy and certain individuals associated with it for fraud. Mr. Akagi obtained summary judgment against Synergy, Shane Smith (president of Synergy), and David Prentice (vice-president). At the time of the ex parte orders that followed, there remained $182,000 outstanding in damages and costs from this initial action. Of that amount, the defendants had already paid $60,000 into court to the credit of the action pending the outcome of the proceedings, and so the remaining amount that Mr. Akagi could claim against the defendants was $122,000.

Less than two months following the judgment in the initial action, Mr. Akagi applied for and obtained an ex parte order appointing a Receiver over all assets, undertakings, and property of Synergy and IBC (note that IBC was not a party to the initial Akagi action). The ex parte order was obtained on the basis of affidavits from Mr. Akagi and from three CRA employees. The materials did not disclose that the CRA investigation had been terminated four months prior.

 

Following the initial ex parte receivership application, the order morphed into an wide-ranging "investigative receivership" which froze and otherwise reached the assets of 43 additional individuals and entities who were deemed to be "Alleged Offenders". The investigative receivership no longer acted solely in Mr. Akagi's interests, but rather in the interests of Synergy's some 3800 investors, none of whom had made efforts to advance their own claims and none of whom were parties to the initial action. The subsequent three orders empowered the Receiver to direct financial institutions to disclose information and documentation regarding payment and transfers of money not only by Synergy and IBC, but also by the list of "Alleged Offenders", any affiliates of those individuals, any corporations directly indirectly controlled by those individuals, any corporation in respect of which the listed individuals were entitled to conduct financial transactions, and any entity with a registered head office at the premises occupied by Synergy and IBC. The final order froze the accounts of these individuals and granted the Receiver a $500,000 borrowing charge against frozen funds to fund its activities, despite the fact that the maximum amount owing to Mr. Akagi from the initial action was $122,000. These ex parte applications were made with no notice of motion or application, no further evidence, and no factum. The appellants moved in a "come-back proceeding" to set aside the receivership orders. That application was dismissed.

In this case, Justice Blair clarified the concept of an "investigative receivership". He noted that the appointment of a Receiver under s. 101 of the Courts of Justice Act is "an extraordinary and intrusive remedy" which should "be granted only after a careful balancing of the effect of such an order on all of the parties and on others who may be affected by the order." Justice Blair makes specific reference to the case in Loblaw Brands Ltd. v Thornton [2009] O.J. No. 1228 (S.C.), in which the investigative Receiver's mandate was to "locate, investigate, and monitor". It was not empowered to seize and freeze assets, as the Receiver was in this case. Justice Blair asserts that, "the investigative receivership must be carefully tailored to what is required to assist in the recovery of the claimant's judgment while at the same time protecting the defendant's interests, and go no further than necessary to achieve these ends." This was misapplied here because (i) there was no indication that Mr. Akagi's right to recover on the initial judgment was in jeopardy, and (ii) there was no evidence of a "dramatic disparity" between the assets of Synergy, Smith, and Prentice, and the amount of the outstanding judgment. Justice Blair emphasized that the investigative receivership should not have the effect of creating a criminal investigation or public inquiry, as it did here.

 

On the issue of the orders being granted ex parte, Justice Blair states that the failure to disclose that the CRA investigation had been discontinued "sailed close to the line of failing to make full and fair disclosure." He reasons that ex parte proceedings are to "be taken sparingly" and "only where it is demonstrated that notice to other parties would undermine the purpose of the proceeding." This was not the case here. Thus, even if the receivership was not unnecessarily wide, it would fail on the grounds that it should not have been granted ex parte.

Regards,

Blair

 

 

Supreme Court Finds that Apparent Bias of Expert Witness Irrelevant

The Supreme Court of Canada recently ruled again on the issue of the admissibility of expert evidence and the basic standards for such admissibility.

In the case of White Burges Langille Inman vs. Abbott and Haliburton (2015 SCC 23), the court considered an appeal arising out of a professional negligence action by shareholders of a company against the former auditors of the company.  The shareholders started the action after they had retained a different accounting firm to perform various accounting tasks, which in their view revealed problems with the previous auditors' work.  The central allegation in the action was that the auditors' failure to apply generally accepted auditing and accounting standards caused financial loss to the shareholders i.e. the auditors were negligent in the performance of their professional duties.

 

The auditors brought a motion for summary judgment seeking to dismiss the shareholders' action.  In response, the shareholders retained a forensic accounting partner of the company's new accounting firm to review all relevant materials and prepare a report.  The forensic accountant's 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 the forensic accountant's affidavit on the grounds she was not an impartial expert witness. 

 

The Nova Scotia Supreme Court judge agreed with the auditors and struck out the forensic accountant's affidavit in its entirety.  The majority of the Court of Appeal for Nova Scotia concluded that the motions judge was mistaken and allowed the appeal.

 

The Supreme Court of Canada agreed with the Court of Appeal.

The court held as follows: 

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 – 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 witness 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 be 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 a sense that it is the product of the expert's independent judgment, uninfluenced by who has retained 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 her.  These concepts must be applied to the realities of adversarial litigation.

 

The Supreme Court held that concerns related to the expert's duty to the court and her willingness and capacity to comply with it are best addressed initially in the "qualified expert" element of the Mohan framework.  If the expert witness does not meet this threshold admissibility requirement,  her evidence should not be admitted.  Once this threshold is met, remaining concerns about an expert witness's compliance with her duty should be considered as part of the overall cost-benefit analysis which the judge conducts to carry out his gatekeeping function.

 

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 her primary duty to the court.

 

Generally speaking, the expert's attestation or testimony recognizing and accepting the duty will be sufficient to establish that the threshold is met.  However, if a party opposing this ability shows there is a realistic concern that the expert is unable and or unwilling to comply with this duty, the proponent of the evidence has the burden of establishing its admissibility. 

 

The Supreme Court held that the exclusion at the threshold phase of the analysis should only occur 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 and or inability to do so should not lead to exclusion, but should be taken into account in the overall weighing of the cost and benefit of receiving the evidence.

 

In this case, the auditors argued that the forensic accountant was inherently biased because she was a member of the new firm of auditors that had replaced them.  The court held that the concept of apparent bias is not relevant to the question of whether or not an expert will be unable or unwilling to fulfill her primary duty to the court.  The court further held that 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 her primary duty to the court to provide fair non-partisan and objective assistance.

 

The court found that in this case there was no basis disclosed in the record to find that the forensic accountant's evidence should be excluded because she was not able and willing to provide the court with fair, objective and non-partisan evidence. 

Regards,

Blair