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

 

Supreme Court Confirms Test For Judicial Bias

The Supreme Court of Canada recently released a decision which established the test for determining bias in a trial judge.  In the case of Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, the Supreme Court partially allowed an appeal from the Court of Appeal for the Yukon. 

 

In this case, the Yukon Francophone School Board (“School Board”) which had responsibility for one school, a French-language school founded in 1984, sued the Yukon government for what it claimed were deficiencies in the provision of minority language education.  The trial judge ruled in the School Board’s favour on most issues.

 

The Yukon government appealed to the Court of Appeal which concluded that there was a reasonable apprehension that the trial judge was biased based on a number of incidents during the trial as well as the trial judge’s involvement as a governor of a philanthropic francophone community organization in Alberta.  The Court of Appeal ordered a new trial. 

 

The School Board appealed the matter to the Supreme Court of Canada.  The Supreme Court partially allowed the appeal and agreed with the Court of Appeal’s conclusion that there was a reasonable apprehension of bias requiring a new trial.

 

The Supreme Court  held that the test for a reasonable apprehension of bias is what would a reasonable, informed person think?  It ruled that the objective of such a test is to protect public confidence in the legal system by ensuring not only the reality but the appearance of a fair adjudicative process.  The Court held that impartiality and the absence of bias have developed as both legal and ethical requirements.  Judges are required and expected to approach every case with impartiality and an open mind.  Judicial impartiality and mutuality do not mean that a judge must have no prior conceptions, opinions or sensibilities.  However, they require that the judge’s identity and experiences not close his or her mind to the evidence and the issues. 

 

In this case, the court found that the threshold for finding a reasonable apprehension of bias had been met.  In addition to several disparaging and disrespectful remarks made by the judge to counsel for the Yukon, several incidents, when viewed together, led to the conclusion.

 

1. On one occasion, counsel for the Yukon attempted to cross-examine a witness based on confidential information.  After hearing some argument on the issue, the judge told counsel that he would entertain addition arguments on the following day.  However, he started the next day’s proceeding with a ruling against the Yukon without giving the parties an opportunity to present further argument.

 

2. He then characterized Yukon’s behaviour as reprehensible and accused counsel for the Yukon of playing games.

 

3. When Yukon requested to submit affidavit evidence from a witness who had suffered a stroke, the judge accused counsel for the Yukon of trying to delay the trial and suggested that he was acting in bad faith.  He warned counsel for the Yukon that he could be ordered to pay costs personally if he brought the application.  The Supreme Court held that there was no basis for the accusations.

 

4. The judge refused to allow Yukon to file a reply on the costs after the trial.  After releasing his reasons on the merits, the judge required each party to file their costs submissions on the same day.  The School Board sought solicitor and client costs, punitive damages and solicitor and client costs retroactive to 2002.  The trial judge refused to allow the Yukon to file a reply factum which the Court of Appeal held was a mistake.

 

The Supreme Court held that all of these incidents taken together and viewed in their context would lead a reasonable and informed person to see the trial judge’s conduct as giving rise to a reasonable apprehension of bias.

 

However, the Supreme Court held that the Court of Appeal had erred when it concluded that the trial judge’s current service as a governor of the francophone organization substantially contributed to a reasonable apprehension of bias.  The court held that membership in an association affiliated with the interest of a particular race, nationality, religion, or language was not, without more, a basis for concluding that a perception of bias could reasonably said to arise.  The court held that Canada has devoted a great deal of effort to creating a more diverse bench.  That very diversity should not operate as a presumption that a judge’s identity closes the judicial mind.

Regards,

Blair

 

Ontario Appeal Court Clarifies Lawyers' Role in Communicating With Experts

In a much anticipated decision, the Ontario Court of Appeal recently released its reasons setting out the parameters of legal counsel’s communication with expert witnesses.  The issue arose in a case called Moore v. Getahun (2015 ONCA 55) in which the plaintiff, Blake Moore seriously injured his right wrist in a motorcycle accident.  As a result of the treatment that he received at the emergency department at Scarborough General Hospital, including the realigning of the bones in his broken wrist and the application of a plaster cast to his wrist and forearm, Moore suffered permanent muscle damage.  He brought an action for negligence against the attending physician and the hospital. 

 

The central issues at trial were whether the doctor had fallen below the standard of care by applying a full circumferential cast on Moore’s wrist and whether the full cast had caused the permanent muscle damage.  The trial ended in a finding of liability.  Before trial the parties had agreed that the appropriate award of damages would be $350,000. 

 

The doctor appealed.

 

During the course of the trial, a number of issues were raised involving the preparation of the written report of the doctor’s expert witnesses.  The trial judge, Justice Janet Wilson, held that it was improper for counsel to assist an expert witness in the preparation of the expert’s report.  She was critical of the doctor’s counsel discussing the expert’s draft report with him during an hour and half telephone call.  She concluded that there had been significant changes to the expert’s report as a result.  Justice Wilson concluded that it had put the expert in a very awkward position as he was “obviously totally unaware that it may be improper to discuss and change a draft report, as a breach of his duty of impartiality”. 

 

Justice Wilson referred to rule 53.03 of the Ontario  Rules of Civil Procedure.  That rule was amended in 2010, as a result of recommendations of the Honourable Coulter Osborne in his review of Ontario's civil justice system and included requiring an expert witness to provide an acknowledgement that his or her opinion evidence was fair, objective and non-partisan and that such duty prevailed over any obligation which the expert may owe to any party on behalf of whom she was engaged.  Justice Wilson concluded the purpose of the rule was to ensure the independence and integrity of the expert witness.   Justice Wilson concluded that the expert's primary duty was to the court and in light of the change of the role of expert witnesses under the “new rule”, she concluded that counsel’s practice of reviewing draft reports should stop.   "There should be full disclosure in writing of any changes to an expert's final report as a result of counsel’s corrections, suggestions or clarifications to ensure transparency in the process and to ensure that the expert witness is neutral."

 

There was significant uproar from the legal profession and in the community of expert witnesses as a result of Justice Wilson's decision   The Advocates' Society and the Canadian Institute of Chartered Business Valuators struck task forces to develop a response.  Both of these organizations intervened in the appeal to provide their perspectives.  The Holland Access to Justice in Malpractice Group, also an intervener, prepared a positon paper that stated that the trial judge’s ruling would have the effect of impairing normal, reasonable and prudent litigation practices, would substantially increase the cost of litigation, would do a disservice to the court in terms of hearing “fulsome, well organized and appropriate evidence, and ultimately would result in a chilling and significantly restrictive effect on access to justice”.

 

The Canadian Defence Lawyers Association submitted that the trial judge’s ruling was “unprecedented, unsupported in law and seriously flawed”.

 

In all, six interveners put forward positions on counsel’s role in helping to shape and prepare expert reports for use at trial.

 

The appeal was heard before Justices Laskin, Sharpe and Simmons of the Ontario Court of Appeal.  Justice Sharpe wrote the decision.

 

Not surprisingly, Justice Sharpe accepted the positions taken by the interveners as to counsel’s role in communicating with expert witnesses. 

 

First, he disagreed with Justice Wilson’s statement that the 2010 amendments to rule 53.03 introduced a “change in the role of expert witnesses”.  He held that the amendments were only intended to clarify and emphasise the existing duties of expert witnesses.  Expert evidence presented should be seen to be the independent product of the expert uninfluenced as to form or content by counsel. Expert witnesses should provide independent assistance to the court by way of objective unbiased evidence and should not assume the role of an advocate.  However, Justice Sharpe found that lawyers have a very important role to play in ensuring that expert reports are appropriately shaped and address the relevant issues to be determined at trial: "The independence and objectivity of expert witnesses is fostered under existing law and practiced in a number of ways including the ethical and professional standards of the legal profession which forbid counsel from engaging in practices likely to interfere with the independence and objectivity of expert witnesses."

 

Justice Sharpe agreed that it would be bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports.  Expert witnesses need the existence of lawyers in framing the reports in a way that is comprehensible and responsive to the pertinent legal issues in a case. 

 

He further held that consultation and collaboration between counsel and expert witnesses is essential to ensure that the expert understands the duties reflected by the rules and the acknowledgement of the expert’s duty.

 

Justice Sharpe ruled that leaving an expert entirely to his or her own devices or requiring all changes to be documented in a formalized written exchange would result in increased delay and costs in a regime already struggling to deliver justice in a timely and efficient manner. 

 

Justice Sharpe also dealt with the issue of the extent to which consultations between counsel and expert witnesses need to be documented and disclosed to an opposing party.  He found that litigation privilege protects communications with experts but that the litigation privilege was qualified and that disclosure may be required in certain situations. 

 

Absent a factual foundation to support a reasonable suspicion that counsel has improperly influenced the expert, a party should not be allowed to demand production of draft reports or notes of interactions between counsel and an expert witness.

 

In this case, although Justice Sharpe concluded that the trial judge had erred in holding that it was unacceptable for counsel to review and discuss the draft expert report and that she had further erred using the written expert reports that were not entered into evidence or the subject of cross-examination to contradict and discredit aspects of the oral testimony of the experts, those errors did not affect the outcome of the trial and as there was no substantial wrong or miscarriage of justice that flowed from the errors, a new trial would not be justified. 

Regards,

Blair  

 

Judicial Plagiarism or Simply Lack of Originality?

Is it acceptable for a judge to copy large sections of his or her reasons for judgment from the written submissions of one of the parties?  The Supreme Court of Canada has said that it is. 

In the case of Cojocaru v. British Columbia Women's Hospital and Health Center, a child who suffered brain damage during his birth at the hospital and his mother brought an action in negligence against the hospital, the attending nurses and doctors. At trial, the defendants were found liable in negligence and damages were awarded to the plaintiffs in the amount of $4 million.

The defendants appealed, in part because the trial judge's reasons reproduced large portions of the plaintiffs' submissions. However, the trial judge did not accept all of the plaintiffs' submissions. He discussed a number of issues and stated his final conclusions in his own words.

The British Columbia Court of Appeal held that the trial judge's decision should be set aside because of the extensive copying from the plaintiffs' submissions and ordered a new trial. This case was further appealed to the Supreme Court of Canada.

The Supreme Court held that as a general rule, it is good judicial practice for a judge to set out the contending positions of the parties on the facts and the law and explain in his or her own words, his conclusions on the facts and the law. However, the court conceded that judicial copying is a long-standing and accepted practice although if carried to excess, may raise problems.

A complaint that a judge's decision should be set aside because the reasons for judgment incorporate materials from other sources is essentially a procedural complaint. Judicial decisions benefit from a presumption of integrity and impartiality - a presumption that the judge has done the job that he is sworn to do. The party seeking to set aside a judicial decision because the judge's reasons incorporated the material of others, bears the burden of showing that the presumption (of integrity and impartiality) is rebutted. The threshold for rebutting that presumption is high and requires "cogent" evidence. The question is whether the evidence presented by the party challenging the judgment convinces the reviewing court that a reasonable person would conclude that the judge did not perform his sworn duty to review and consider the evidence with an open mind.

The fact that a judge attributes copied material to the author tells us nothing about whether he put his mind to the issues addressed in the copying. Lack of originality is not a flaw in judgment writing. On the contrary, it is part and parcel of the judicial process. Lack of originality and failure to attribute sources do not in themselves rebut the presumption of judicial impartiality and integrity. This only occurs if the copying is of such a character that a reasonable person apprised of the circumstances would conclude that the judge did not put his mind to the evidence and the issues and did not render an impartial and independent decision.

In this case, taking into account the complexity of the facts and accepting that it would have been preferable for the trial judge to discuss the facts and issues in his own words, the court could not conclude that the judge failed to consider the issues and make an independent decision on them. On the contrary, the reasons demonstrated that the judge addressed his mind to the issues that he had to decide. He rejected some of the plaintiffs' key submissions, demonstrated that he considered the issues independently and impartially.

However, the court found that other aspects of the reasons disclosed palpable and over-riding errors and should be set aside. For example, the court found that there was no evidence to support the trial judge's findings of liability against one of the nurses, the hospital and two doctors and set aside those findings.

Regards,

Blair