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

 

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