Patricia VircSCC provides guidance on independence of experts

January 2, 2020by Patricia Virc

The Supreme Court of Canada’s recent decision regarding expert opinions provides some guidance on the admissibility and weight of evidence when the expert’s independence or impartiality is called into question, says Toronto litigator Patricia Virc.

Virc, lawyer with Steinberg Title Hope & Israel LLP, says the SCC’s recent decision in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (CanLII), highlights the difference between a an expert having a connection to a case versus having a disqualifying connection to a case.

“I think there can be confusion around connections and disqualifying connections,” she tells, “for example, if the expert has a connection with the party, the file, the litigation generally or the fact scenario. They aren’t a stranger to the file but is there some factor or circumstance that would taint their ability to give an objective assessment? Having a connection isn’t enough to disqualify. You have to explore whether that connection taints the expert’s ability to give an impartial, objective opinion.”

White, on appeal from the Nova Scotia Court of Appeal, began as a professional negligence action brought by a group of shareholders against the former auditors of their company. The shareholders had retained the Kentville office of Grant Thornton LLP to perform various accounting tasks and through the course of which, in their view, this revealed problems with the former auditors’ work.

“The auditors brought a motion for summary judgment seeking to have the shareholders’ action dismissed. In response, the shareholders retained M, a forensic accounting partner at the Halifax office of [Grant Thornton], to review all the relevant materials and to prepare a report of her findings. Her 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 M’s affidavit on the grounds that she was not an impartial expert witness,” the judgment reads.

“The motions judge essentially agreed with the auditors and struck out M’s affidavit in its entirety. The majority of the Court of Appeal concluded that the motions judge erred in excluding M’s affidavit and allowed the appeal,” it continues.

In dismissing the auditors’ appeal and agreeing with the conclusion reached by the majority of the Nova Scotia Court of Appeal, Justice Thomas Cromwell writes, “Expert opinion evidence can be a key element in the search for truth, but it may also pose special dangers.”

Cromwell, for the unanimous SCC, wrote: “Expert witnesses have a special duty to the court to provide fair, objective and non-partisan assistance. A proposed expert witness who is unable or unwilling to comply with this duty is not qualified to give expert opinion evidence and should not be permitted to do so. Less fundamental concerns about an expert’s independence and impartiality should be taken into account in the broader, overall weighing of the costs and benefits of receiving the evidence.”

Virc says in the case at hand, while the opinion was written by somebody who worked at Grant Thornton, the expert didn’t appear to have an agenda or axe to grind.

“When the opinion was formulated, the expert had no motivation to come to a result that was adverse to the defendant accountants. The firm wasn’t hired for the purposes of the litigation and they weren’t defending their own work either,” she says.

“While the expert had a connection, it wasn’t a disqualifying connection. There was no apparent reason why she would come out and give an opinion that would favour one party over the other. She was just giving her opinion,” Virc says.

She says the decision sets out a two-step analysis, the first step being a threshold inquiry.

“Exclusion at this stage will occur in only very clear cases. The expert must be aware of the duty to the court to give fair, objective and non-partisan opinion evidence and be able and willing to carry it out,” she notes.

“The expert’s attestation or testimony recognizing and accepting the duty will suffice.”

Virc explains the burden then shifts to the opponent to show there is a realistic concern that any of the following exists:

  • The opinion does not reflect an objective assessment of the questions at hand;
  • The opinion is not the product of the expert’s independent judgment, but has been influenced by who has retained him or her or by the outcome of the litigation;
  • The opinion unfairly favours one party’s position over another; or
  • The expert’s opinion would change if another party had retained the expert.

“For example, the expert has a disqualifying interest or connection if the expert has a close familial relationship, direct financial interest in the outcome, assumes the role of advocate, or will incur professional liability if his or her opinion is not accepted,” Virc says.

“If a realistic concern is shown, the burden shifts back to the proponent of the expert evidence to establish its admissibility, although the SCC did not say how this might be done. If the expert witness does not meet this threshold admissibility requirement, his or her evidence, or those parts of it that are tainted by a lack of independence, should be excluded,” she says.

The second step, as set out by the SCC, is a gatekeeping exclusionary discretion.

“If the expert’s lack of independence was not so clear as to disqualify the expert’s evidence at the threshold stage, concerns regarding lack of independence can still be considered by the judge as part of the overall cost-benefit analysis,” Virc says. “The court may exclude the evidence if the risks of admitting the expert evidence outweigh its helpfulness.”

She notes that the second step set out in the decision will be of particular help when the trier of fact is a jury.

“A jury could become overwhelmed by the complexity of the evidence and overly impressed with credentials of the expert and may not understand the opinion and therefore they are improperly delegating their fact-finding role to somebody else,” she says.

“That’s dangerous and I think it’s particularly a problem in criminal cases where the jury may not understand the scientific or medical evidence.”

Patricia Virc

Steinberg Title Hope & Israel LLPSteinberg Title Hope & Israel LLP

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