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Featured Case Comment, May 2015

SCC Rules on Threshold Issues for Expert Evidence – Exclusion versus Weight


by Ken Crofoot, Goodmans LLP

2015 Ken Crofoot

White Burgess Langille Inman v Abbott and Haliburton Co., 2015 SCC 23

Typical construction law trials are full of expert evidence. As a result, construction lawyers need to fully understand the requirements for the qualification of an expert to give opinion evidence before the Court. When does an issue affecting the expert’s independence go to the ability of the expert to testify at all and when does it go to the weight the trier of fact may put on that evidence? There are instances where the knowledge of the expert is so important that it may be strategic to use the person as an expert despite the fact that their independence might be subject to attack; however, can the evidence go before the court at all?

In this case, the shareholders of a company retained a new accounting firm to do accounting work and that firm raised issues with the previous firm’s work. The shareholders then brought a professional negligence action against the prior firm which brought a summary judgment motion to have the action dismissed. In response, the shareholders filed an affidavit of a forensic accounting partner of the their new accountants containing an expert report summarizing their findings. The former accountants moved to strike out the affidavit on the grounds that the partner was not an impartial expert witness. This was based on an argument that the firm was interested in the result of the motion because, as a battle between two accounting firms, the new firm was both involved in the circumstances and would suffer a potential liability to the shareholders if their opinions were found to be wrong.

In a construction claim context, this could be comparable to using an engineer as an expert who was the same engineer who had identified the construction defect and proposed the remedial solution. That engineer’s impartiality could be questioned on the basis that if those opinions are shown to be wrong, the entire analysis and remedial course of action could be wasted costs.

At the motion, the motions judge agreed with the former auditor and struck out the affidavit in its entirety. On appeal, the Nova Scotia Court of Appeal disagreed and allowed the appeal. The Supreme Court of Canada then used this case as an opportunity to try to clarify issues relating to the admission of expert evidence in the context where there was some argument as to the independence or impartiality of the expert.

The SCC noted that as a matter of fundamental principle, an expert witness has a duty to the court to give fair, objective and non-partisan opinion evidence. The expert must be aware of this duty and willing to carry it out. If this threshold cannot be met, then the evidence should be excluded. However, once the threshold is met, concerns about a witness’s independence or impartiality should be considered as part of the overall weighing of the costs and benefits of admitting the evidence1.

With that statement of general principle, the Court went on to examine the statutory provisions and case law that had developed across Canada on the issue. The starting point was stated to be R v Mohan, [1994] 2 S.C.R. 9 which set out four threshold requirements that the proponent of the evidence must establish for the 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. If these criteria are met, the court then has a further step of determining whether the evidence should be excluded because the probative value of the evidence is overborne by its prejudicial effect. This residual exclusionary discretion based on a cost-benefit approach would presumably mostly apply to criminal trials and have very limited application in a construction context.

With this framework in place, the Court then went on to consider where the expert’s duty to the court fit into the analysis. The Court reviewed the various provincial requirements contained in court procedural rules and found that these were grounded in the common law concepts of impartiality, independence and absence of bias. Impartiality requires an objective assessment, independence requires independent judgment uninfluenced by the party that retained the expert and an absence of bias requires that one party’s position is not unfairly favoured. The court noted that the case law established a consensus on these requirements but that there was inconsistency with respect to how they affect the admissibility of the evidence.

After reviewing the case law in Canada and other jurisdictions, the Court set out that an expert’s lack of independence and impartiality goes to the admissibility of the evidence as well as being considered in relation to weight. To get past the admissibility threshold, the expert must be aware of the duty to be fair, objective and non-partisan and must be able and willing to fulfill that duty. If the expert testimony supports an understanding of this duty, the burden is on the opposing party to show there is a realistic concern that the expert’s evidence should not be received because the expert is unable or unwilling to comply with the duty. If the opponent does so, the burden is then that of the proponent of the evidence to show the threshold is met on a balance of probabilities. If this is not done, the evidence, (or the tainted part of it) is to be excluded2.

However, most importantly, the Court went on to state that the threshold requirement is “not particularly onerous” and it will likely be quite rare that a proposed expert’s evidence would be ruled inadmissible. The Court stated that the mere fact of an interest or connection with the litigation or with a party thereto, would not automatically render the evidence inadmissible. The Court noted an employment relationship would be insufficient to result in exclusion though a financial interest, familial relationship or a situation where the expert would incur liability would raise a concern. Similarly, a situation where the expert assumes the role of an advocate for a party might result in exclusion as this would indicate an unwillingness to fulfill the required duty. Also of importance, the Court went out of its way to state that the question was not whether a reasonable observer would think that the expert was not independent3.

In the end, the Court decreed that a trial judge must take concerns about the expert’s independence and impartiality into account in weighing the evidence at the gatekeeping stage. This was to be assessed on a sliding scale where a basic level must first be achieved before the evidence was admissible. Once the basic level was met, the issues continued to play a part in the weighing of the evidence.

The SCC’s characterization of the admissibility stage of the analysis as “not particularly onerous” will surely mean that in all but the most egregious cases, the trial judge will opt to admit the evidence and then apply any concerns at the point of assessing it. From a trial judge’s point of view, this approach is much more difficult to attack on an appeal than a situation where potentially valuable evidence has been wholly excluded from consideration.

1 Paragraph 10

2 Paragraph 48

3 Paragraph 50

2015 Ken Crofoot

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