It is a common practice in all forms of litigation to have experts involved. Sometimes they are retained to provide advice and guidance in the background, but most often one of the parties will want the experts to testify and provide “opinions” to the court which support their position. If you are asked to perform that role, what do you need to know before you accept such a retainer or agree to testify? It is understood that you may not have an option if you are summoned to appear.
The general rule is that witnesses are to testify about what they have seen, heard or read. They are not to draw inferences from the facts they attest to, nor are they allowed to give their opinions based on those events. The trier of fact is there to do that, be it judge or jury.
There is an exception to the general rule where expert evidence is offered on matters requiring specialized knowledge or skill. This makes sense as there will be issues before the court where the trier of fact is not equipped to draw true or accurate inferences and conclusions from the bare facts. This would be true in most health law matters.
An ongoing concern is the independence and impartiality of the expert. Are they providing to the court an unbiased and independent assessment by the standards of their profession or about a party's health issues? The worry is that they will have a natural inclination to favour the position of those who retain them, especially where they hope to be hired again or are dependant on such work for their livelihood.
The issues involved in allowing a potential expert to testify were set out by the Supreme Court of Canada (SCC) in White Burgess Langille Inman v. Abbott and Haliburton Co. as follows:
To decide how our law of evidence should best respond to these concerns, we must confront several questions: Should concerns about potentially biased expert opinion go to admissibility or only to weight?; If to admissibility, should these concerns be addressed by a threshold requirement for admissibility, by a judicial discretion to exclude, or both?; At what point do these concerns justify exclusion of the evidence?; And finally, how is our response to these concerns integrated into the existing legal framework governing the admissibility of expert opinion evidence? To answer these questions, we must first consider the existing legal framework governing admissibility, identify the duties that an expert witness has to the court and then turn to how those duties are best reflected in that legal framework.
The threshold for admissibility was established by the SCC in R. v. Mohan as follows:
Admission of expert evidence depends on the application of the following criteria:
- A necessity in assisting the trier of fact;
- Absence of any exclusionary rule; and
- A properly qualified expert.
Mohanalso underlined the vital role of trial judges in assessing whether otherwise admissible expert evidence should be excluded because its probative value was overborne by its prejudicial effect and provided a residual discretion to exclude evidence based on a cost-benefit analysis.
A further concern is to ensure that the dispute is resolved by the trier of fact and not the experts. The court strives to allow the trier of fact to make an informed judgment based on the evidence over a leap of faith in accepting at face value the opinions of the experts.
Finally, the court must carefully examine the admissibility of expert opinion when it is based on a novel or contested science by considering the reliability of that underlying science.
Expert evidence which does not meet the threshold tests should be excluded.
Assuming the threshold tests are met, the adjudicator (usually a judge) must still balance the potential benefit of admitting the evidence against the risks of its prejudicial effect.
There is a common law duty owed by all experts to the court. They must provide their evidence as an independent product of their skill uninfluenced by the exigencies of litigation. They must never assume the role of advocate. They must be seen to be unbiased, impartial and independent.
As was held in White Burgess, this common law duty is part of the admissibility analysis. The elements of this duty go to the admissibility of the evidence rather than merely to its weight. Secondly, there is a threshold admissibility requirement being independence and impartiality. The threshold for admissibility flows from this duty. The expert witnesses must assist the court, and this principle overrides their obligation to the party calling them. If an expert witness is unable or unwilling to fulfill that duty, they do not qualify to perform the role of an expert, and their evidence should be excluded.
Next week, we will continue the discussion and deal with the remaining issues.
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In December 2019, Ontario’s Attorney General introduced Bill 161, the Smarter and Stronger Justice Act (the “Act”), which became law on July 8, 2020. The Act hopes to simplify a complex and outdated justice system by bringing changes to how legal aid services are delivered, how class actions are handled, and how court processes are administered.
Of note, the Act has amended the Judicial Review Procedures Act (JRPA) to establish new rules as to when an application for judicial review may be brought.
Any decisions made on or after July 8, 2020 are now subject to a 30-day limit for bringing an application for judicial review unless another Act provides otherwise. Courts, however, retain powers to extend the time for making an application for judicial review if satisfied that there are apparent grounds for relief and that no prejudice or hardship will be incurred by the delay. Before these amendments, the JRPA did not set out any time limits for bringing an application, but courts had powers to extend the time to bring an application if another Act prescribed the limit.
In early August 2020, the Federal Minister of Health granted an exemption under the Controlled Drugs and Substances Act (CDSA) to four terminally ill Canadians to use psilocybin in their end of life care.
Psilocybin is one of the active ingredients/chemicals in “magic mushrooms,” the other is psilocin. Both psilocybin and psilocin are controlled substances under Schedule III of the CDSA. The sale, possession, production, etc. are prohibited unless authorized for clinical trial or research purposes under Part J of the Food and Drug Regulations. Both have been illegal in Canada since 1974. According to Health Canada, there are no approved therapeutic products containing psilocybin in Canada. However, the purified active ingredient, i.e. psilocybin, is being studied in supervised clinical settings for its potential to treat various conditions such as anxiety and depression.