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