May 4, 2015 by Canadian Underwriter
The Supreme Court of Canada recently suggested that when a defendant is sued for professional negligence, a perceived lack of independence on the part of a plaintiff’s expert witness is not necessarily a reason for excluding the opinions of that witness.
“The concept of apparent bias is not relevant to the question of whether or not an expert witness will be unable or unwilling to fulfill its primary duty to the court,” wrote Mr. Justice Thomas Cromwell of the Supreme Court of Canada, in a unanimous decision released April 30, 2015, in a case involving White Burgess Langille Inman (WBLI), an accounting firm sued for professional negligence in Nova Scotia. “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 his or her primary duty to the court to provide fair, non-partisan and objective assistance.”
WBLI was sued by Abbott and Haliburton Company Ltd. and 37 other building supply stores in Atlantic Canada. A co-defendant is WBLI principal Brian Burgess. The plaintiffs are building supply stores who formed a bulk buying agent, Wholesale and Retailers Distributors Ltd. (AWARD), which would distribute rebates from suppliers to members at a level proportional to their purchases. WBLI was AWARD’s accountant from 1995 until 2005. Then AWARD retained Grant Thornton as its accounting firm. After Grant Thornton compiled a report, the plaintiffs alleged that rebate money “had been mis-allocated by AWARD’s management and that (WBLI and Burgess) were negligent in failing to recognize and report this in its financial statements,” wrote Mr. Justice Duncan Beveridge of the Nova Scotia Court of Appeal in 2013.
Those allegations have not been proven in court.
The plaintiffs wanted to use a report from Grant Thornton partner Susan MacMillan, but in a decision released in June, 2012, Mr. Justice Arthur Pickup of the Supreme Court of Nova Scotia expunged MacMillan’s report from the record.
“In Nova Scotia an expert’s report must be, and be seen to be, independent and impartial,” Justice Pickup wrote in 2012. “What matters is that a reasonable observer would see that she is constrained from providing a contrary view. A contrary view would expose her partners, and therefore herself, to the prospect of liability, regardless of whether Kentville Grant Thornton had an ongoing retainer with the plaintiffs.”
In a divided decision, Justice Beveridge and Madam Justice Linda Lee Oland, of the Nova Scotia Court of Appeal, ruled that Justice Pickup had erred in expunging MacMillan’s report. On appeal, the court directed that the provision in Justice Pickup’s order striking MacMillan’s affidavit be removed.
The Supreme Court of Canada agreed with the majority.
“There have been long-standing concerns about whether expert witnesses hired by the parties are impartial in the sense that they are expressing their own unbiased professional opinion and whether they are independent in the sense that their opinion is the product of their own, independent conclusions based on their own knowledge and judgment,” Justice Cromwell wrote in 2015. “The fact that one professional firm discovers what it thinks is or may be professional negligence does not, on its own, disqualify it from offering that opinion as an expert witness. Provided that the initial work is done independently and impartially and the person put forward as an expert understands and is able to comply with the duty to provide fair, objective and non-partisan assistance to the court, the expert meets the threshold qualification in that regard.”
The Supreme Court of Canada cited several cases, including a criminal case against Warren Abbey, who was convicted in 2011 of first-degree murder in the shooting death in northeast Toronto, in January, 2004, of Simeon Peter. Abbey was initially found not guilty, and the crown successfully appealed. The jury who found Abbey not guilty “heard no evidence about the significance of teardrop tattoos among members of urban street gangs,” Mr. Justice David Watt wrote in 2013, in dismissing Abbey’s appeal of his conviction.
The judge in Abbey’s first trial did not permit a sociologist to give expert evidence on teardrop tattoos but the Court of Appeal ruled that judge had erred.
“There are different criteria that assist in examining the reliability of such experts, including reviewing the expert’s qualifications within a recognized field of specialized training, whether there are quality assurance standards that another person in the field could review, whether the methodology used to gather information relied upon by the expert enhance its reliability and whether the data relied upon was gathered independently from the litigation process,” wrote Mr. Justice David Doherty in 2009.
Justice Doherty suggested a two-step process for determining admissibility of opinion evidence from an expert.
“First, the party proffering the evidence must demonstrate the existence of certain preconditions to the admissibility of expert evidence,” Justice Doherty wrote. “For example, that party must show that the proposed witness is qualified to give the relevant opinion. Second, the trial judge must decide whether expert 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. This ‘gatekeeper’ component of the admissibility inquiry lies at the heart of the present evidentiary regime governing the admissibility of expert opinion evidence.”
That ruling in Abbey “introduced helpful analytical clarity by dividing the inquiry into two steps,” Justice Cromwell wrote in 2015 in White Burgess Langille Inman v. Abbott and Haliburton Co. “With minor adjustments, I would adopt that approach.”
In deciding whether to admit expert evidence, a 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 his or her primary duty to the court,” Justice Cromwell added. “For example, it is the nature and extent of the interest or connection with the litigation or a party thereto which matters, not the mere fact of the interest or connection; the existence of some interest or a relationship does not automatically rend
er the evidence of the proposed expert inadmissible.”
In “most cases, a mere employment relationship with the party calling the evidence will be insufficient” for a trial judge to rule expert evidence is inadmissible, Justice Cromwell noted. “On the other hand, a direct financial interest in the outcome of the litigation will be of more concern.”