www.lexpert.ca | LEXPERT • December 2016 | 13
EXPERT EVIDENCE
Court of Appeal disagreed with the lower court, finding that the
affidavit should not have been excluded.
The Supreme Court in this instance upheld the appeal court's
decision. Justice Thomas Cromwell, writing for a unanimous
SCC, emphasized three related concepts — impartiality, inde-
pendence and absence of bias — underpinning the duty that ex-
pert witnesses owe the court. Independence and impartiality can
be threshold issues bearing on an expert's admissibility, the SCC
held, but these thresholds are meant to be low. Unless challenged,
experts' testimony accepting their duty to the court should be
taken at face value.
When assessing impartiality, it's not merely the connection to
the litigant that matters but the nature and extent of that connec-
tion, the court ruled. Expert evidence should only be excluded in
"very clear cases" where the court has been able to clearly deter-
mine that the expert witness is unwilling or unable to carry out
their duty to the court.
The concept of "apparent bias" is
not the proper test, the SCC held.
The issue is not whether a reasonable
observer would think that the expert
is not independent, but whether the
relationship results in the expert be-
ing unable or unwilling to carry out
his or her duty to the court. The SCC
found no evidence that the plaintiffs'
expert was unwilling or unable to meet their duty to the court;
therefore the expert's evidence should not have been excluded.
Jilesen acknowledges that the ruling has been interpreted as
setting the bar for admissibility of expert evidence very low. But
she says that if judges see the expert acting as an advocate rather
than an impartial witness, they are likely to say, "I heard them, I
found them to be argumentative and I reject their evidence."
The ruling also clarified that challenges to the testimony of
an expert witness based on their alleged lack of independence,
partiality or bias can now occur in the admissibility stage of a
trial rather than having to await the cross-examination, says John
Olah, a partner at Beard Winter LLP in Toronto.
In a paper entitled "A Road Map to the Admissibility of Ex-
pert Evidence," presented at a Law Society of Upper Canada fo-
rum last December, he raises the possibility that civil trials, post-
White Burgess, will move toward in limine hearings to deal with
the admissibility of expert evidence, as criminal trials often do.
Justice Robert Sharpe Ontario Court of Appeal
"Just as lawyers and judges need the input of experts,
so too do expert witnesses need the assistance of lawyers
in framing their reports in a way that is comprehensible
and responsive to the pertinent legal issues in a case."
