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.
At Wise Health Law, our lawyers rely on our significant experience before all levels of courts and tribunals to provide our clients with exceptional guidance and representation through the often-overwhelming litigation process. To find out more about how we can help, contact us online, or at 416-915-4234for a consultation.
The Chief Medical Officer of Health for Ontario has issued an updated Directive #2 (dated May 26, 2020) for Regulated Health Professionals in the province.
Pursuant to the updated Directive #2, all deferred non-essential and elective services by health care providers may be gradually restarted – subject to the rest of the requirements set out in the Directive.
The updated Directive #2 does not provide particularly detailed guidance to health professionals on how to proceed, likely because it applies to such a broad spectrum of health care and health professionals. It does, however, provide some principles to assist health care providers in making decisions as we enter this transitional period.
In addition to the mask and hand sanitizer shortages, Ontario’s response to COVID-19 highlights the need for more frontline health care workers. Each regulated health profession’s college responded differently, and we have discussed some of those changes in other posts to keep you apprised.
Today, we focus on the College of Physicians and Surgeons of Ontario (CPSO), who set out to increase the number of available and licenced physicians out on the frontlines through certificates of registration that authorize supervised practice of short duration. The temporary licences authorize practice for 30 days.
Undoubtedly, COVID-19 has affected how health professionals practice. Pharmacists across the country are not only experiencing changes in how they practice (for example, accepting emailed prescriptions, where appropriate) but the scope of their practice as well. The latter change is not permanent, although the disruptions in practice may be felt long after the COVID-19 emergency subsides.
On March 19, 2020, Health Canada issued a short-term section 56(1) exemption under the Controlled Drugs and Substances Act (CDSA) that would authorize pharmacists to prescribe, sell, or provide controlled substances in limited circumstances, or transfer prescriptions for controlled substances (the CDSA Exemption).