Lexpert US Guides

14 | LEXPERT • December 2016 | www.lexpert.ca EXPERT EVIDENCE "An early resolution of these issues [at the outset of jury trials] will make [them] more efficient," he writes. Meady v. Greyhound Canada In Meady v. Greyhound Canada Transportation, the Ontario Court of Appeal upheld a trial judge's decision to exclude evi- dence from two experts. The case involved an action against a Greyhound bus driver and the Ontario Provincial Police (OPP), who had allowed a visibly disturbed young man to stay on a bus traveling from Calgary to Nova Scotia through a remote part of Northern Ontario. The passenger grabbed the wheel from the driver and sent the bus hurtling into a ravine. One person was killed and 30 were injured. The plaintiffs claimed the police mishandled the situation by failing to detain the passenger under the Mental Health Act. Plaintiffs' counsel wished to lead evidence from two expert wit- nesses — a police officer with knowledge of use-of-force princi- ples and a transportation safety consultant familiar with accident investigation and bus standards. The trial judge refused to admit expert evidence from both. The admissibility of expert evidence is governed by the SCC's decision in R. v. Mohan and the Ontario Court of Appeal's deci- sion in R. v. Abbey. The admissibility test has four parts: (a) the evidence must be relevant; (b) it must be necessary to assist the trier of fact; (c) it must not be subject to an exclusionary rule; and (d) the expert must be properly qualified. The admissibility of both expert witnesses turned on the trial judge's application of the second criterion. While expert evidence is usually needed by the trier of fact, the trial judge cited the ex- ception for "non technical matters or those which an ordinary person may be expected to have knowledge" to exclude the evi- dence. On appeal, the court found that the trial judge had prop- erly performed his gatekeeper function, and that deference must be accorded his decision. "What I take from this case is that the trial judge's role — in admitting expert evidence or not admitting it — has become enhanced in the last year," says Pape. "You're not going to get any help in the court of appeal if you think the trial judge got it wrong. The trial judge is taking a much closer look at whether or not she is going to allow the expert to testify. It used to be, 'Let it in and it will all go to weight.'" Bob Cooper, the founder of Cooper Litigation in Vancouver, agrees that the Supreme Court's intention was to direct trial courts to scrutinize expert evidence more strongly, "but that direction is applied inconsistently in the trial courts," he says. "I think expert evidence is still readily received in the trial courts, and concerns about its independence and impartiality are gener- ally dealt with as matters of weight." Class Actions Expert evidence has a reduced role in the pre-certification stage of class actions. At that stage, any expert evidence that is filed will deal with the criteria for certification. "Usually the battleground on certification motions is whether there are common issues among the class members," says Sandra Forbes, a partner at Da- vies Ward Phillips & Vineberg LLP in Toronto. If the case does manage to pass the certification stage, the trial proceeds on the merits and further expert evidence is adduced, but it's of a very different kind. The expert who provided an opin- ion on commonality at the pre-certification stage is usually not the same expert who testifies on, for example, the standard of care or the damages at trial. Expert evidence at the merit stage is given in testimony before a judge (unlike at the pre-certification stage, when it is filed as a written report). Judges used to be much more willing to evaluate the expert evidence on the merits at the pre-certification stage, says Forbes. "More recently, the courts have been very reluctant to get into that expert evidence. Certification should not be a battle of the experts, they say. The courts don't want to resolve certification motions on the basis of whose expert is right." The same is true in Québec's "authorization" stage of class ac- tions. Under amendments to Québec's Code of Civil Procedure in 2002, counsel must convince the court that expert evidence will be relevant or helpful for deciding whether the four conditions for authorization are met. "It's less often allowed at that stage be- cause it's seen as an attempt to debate the merits of the case," says Yves Martineau, a partner at Stikeman Elliott LLP in Montréal. "There are a few cases where it's been allowed, but the examples are rather scarce since 2002." In general litigation in Québec, the recent trend has been for court-appointed experts to replace litigants' experts. "Will that also apply as frequently in class actions?" asks Martineau. "Maybe not." In individual actions, the amounts at issue don't usually jus- tify the litigants hiring their own experts. "In class actions, the amounts are very significant and there will be less incentive to reduce costs." Paul Pape Pape Barristers Professional Corp. "What I take from [Meady v. Greyhound Canada] is that the trial judge's role — in admitting expert evidence or not admitting it — has become enhanced in the last year. You're not going to get any help in the court of appeal if you think the trial judge got it wrong. The trial judge is taking a much closer look at whether or not she is going to allow the expert to testify."

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