Law Times

PAGE 6 COMMENT Law Times Group Publisher . . . . . . . Karen Lorimer Editorial Director . . . . . . . Gail J. Cohen Editor . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . Robert Todd Staff Writer . . . . . . . Michael McKiernan Copy Editor . . . . . . . . . Heather Gardiner CaseLaw Editor . . . . . Adela Rodriguez Art Director . . . . . . . . . . Alicia Adamson Account Co-ordinator . . . . Catherine Giles Electronic Production Specialist . . . . . . . . . . . . . Derek Welford Advertising Sales . . . . Kimberlee Pascoe Sales Co-ordinator . . . . . . . . . Sandy Shutt ©2011 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. May 30, 2011 • Law TiMes Law Times Thomson Reuters Canada Ltd. 240 Edward Street, Aurora, ON • L4G 3S9 Tel: 905-841-6481 • Fax: 905-727-0017 www.lawtimesnews.com Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 240 Edward St., Aurora, Ont. L4G 3S9 • 905-841-6481. clb.lteditor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $165.00 + HST per year in Canada (HST Reg. #R121351134) and US$259.00 for foreign address- es. Single copies are $4.00 Circulation inquiries, post- al returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times 240 Edward St., Aurora, Ont. L4G 3S9. Return postage guaranteed. Contact Jacquie Clancy at: jacquie.clancy@ thomsonreuters.com or Tel: 905-713-4392 • Toll free: 1-888-743-3551 or Fax: 905-841-4357. ADVERTISING Advertising inquiries and materials should be directed to Sales, Law Times, 240 Edward St., Aurora, Ont. L4G 3S9 or call Karen Lorimer at 905-713-4339 karen.lorimer@thomsonreuters.com, Kimberlee Pascoe at 905-713-4342 kimberlee.pascoe@thomson- reuters.com, or Sandy Shutt at 905-713-4337 sandra. shutt@thomsonreuters.com Law Times is printed on newsprint containing 25-30 per cent post-consumer recycled materials. Please recycle this newspaper. Editorial Obiter Pledges and statements don't go far enough I t was good to see major Canadian corporations pronouncing their commitments to promoting diver- sity in the legal profession recently. As Law Times reported online last week, 40 Canadian general counsel came together to launch Legal Lead- ers for Diversity and Inclusiveness this month. Th ose who sign pledge to reach out to their peers and urge them to commit to building a diversity plan, off ering diversity coaching as part of their corporation's leadership training, and putting diversity progress on the quarterly agenda. Th e commitment also extends to using law fi rms and suppliers that are either minority-owned or refl ect a commitment to diversity. In-house lawyers, particularly those at big com- panies, are some of the biggest clients of legal services, so they have signifi - cant clout in the larger community. Th e move is a welcome sign of progress, but as Joy Casey, co-founder of A Call to Action Canada, points out, the new eff orts lack the teeth her organization pledges. "To me, it's fundamental," she says, noting she believes outside law fi rms that fail to make progress on diversity should face consequences by losing out on corpo- rate legal work. So far, A Call to Action has seven signatories, and Casey notes "the con- cern that's been expressed is the issue of teeth." So while the Legal Leaders pledge is welcome, it's clear that the profes- sion has more to do. It's notable that while there certainly was a Canadian presence at A Call to Action Canada's conference in Toronto on May 17, there was a very large contingent of U.S. companies, lawyers, and organi- zations. Casey rightly points out that that's largely due to the fact that A Call to Action Canada has tended to rely on the support of its U.S. counterpart organization, but that just shows how far behind Canada's legal profession has been. In fact, one of the speakers at the con- ference, Ratna Omidvar of the Maytree Foundation, spoke of the DiverseCity research project's recent study on diversi- ty in the legal profession here. While she said she couldn't reveal the full fi ndings, she noted: "I can tell you that there's lots of room for improvement." So, the legal profession and the companies that use lawyers' services have further to go in diversifying. Will change come from altering fi rms' hir- ing criteria to emphasize things like cultural competency? Th at should help. But as with many things, little changes unless people and organiza- tions have to. As a result, pledges and statements about diversity are nice but they aren't enough unless they come with a way to enforce them. Let's hope, then, that companies move be- yond the Legal Leaders eff ort. — Glenn Kauth precedent, many sacred cows of the common law have been rejected in the short time I have been a lawyer. As a result, negligence actions D against lawyers, malicious pros- ecution actions against Crowns, and negligent investigation ac- tions against police offi cers are all now permissible. Th e guiding principle behind each develop- ment is twofold: the need for ac- countability and the impetus to provide a remedy for a wrong. Th e next frontier for change resides with the rule of expert witness immunity. By that, I mean the immunity enjoyed by expert witnesses to be free from negligence actions, something not to be confused with any defamation immunity. Expert witnesses diff er from other factual witnesses in that they're paid for their preparation time and attendance in court and testify voluntarily. Many expert witnesses earn substantial incomes testifying for a particu- lar side and are well known for Canada should follow U.K. lead on expert immunity Social espite resistance to change and the often- slavish adherence to their views. Unlike factual witnesses or those appearing under compulsion, there's no valid rationale for immunity. In addition, any risks of claims or litigation may be covered through insurance. Th e decision in March by the British Supreme Court in Jones v. Kaney abolishing the immunity rule in relation to negligence actions brought by the party retaining the witness should be the fi rst step in the complete rejection of this objec- tionable notion. In 2007, the Ontario Court of Appeal, ruling in Reynolds v. Kingston (Police Services Board), referred to the absolute immunity of witnesses from subsequent liability for their testimony as having been "de- veloped in early English cases" and being "well established at common law." With the Eng- lish precedents no longer hav- ing any weight due to the Jones decision, our courts ought to be more receptive to a fresh consideration of the immunity rule. In addition, the appeal court in Reynolds seemed to Justice By Alan Shanoff approve a dissenting statement in the Divisional Court deci- sion that "the law with respect to the scope of witness immu- nity is not settled in Ontario." Th e chief rationale in sup- port of expert witness immu- nity appears to be based on the fear that without it, experts will be reluctant to testify or do so honestly. Of course, this rationale isn't based upon any empirical evidence. More signifi cantly, this is precisely the sort of argument used to justify previously granted and now abolished immunity in respect of barrister work, po- lice investigations, and Crown prosecutors. Any expert refus- ing to testify without absolute immunity ought not to be on the stand in the fi rst place. As one judge asked in the Jones decision, "Why should the www.lawtimesnews.com risk of being sued in relation to forensic services constitute a greater disincentive to the provision of such services than does the risk of being sued in relation to any other form of professional service?" Despite the new obligations placed on expert witnesses as of Jan. 1, 2010, it's clear that not all of them approach their tasks without bias. Th e fear of a negligence action and the threat of liability may very well put teeth into the new Rules of Civil Procedure and encourage ex- perts to pay more than lip service to their duty to the court rather than to the party or insurer paying them. Expert witnesses shouldn't fear vexatious litigation or a multiplicity of lawsuits any more than other profession- als now subject to legal action. Th ere are rules and procedures available to protect people from vexatious or frivolous litigation. If the rules or pro- cedures are inadequate, they need improvement. Justifying immunity on the basis of in- adequate procedures to protect experts from vexatious or friv- olous litigation would have the tail wagging the dog. Removing the immunity would also have the salutary ef- fect of forcing professional wit- nesses to remain strictly within their sphere of expertise. Th at alone would go a long way to prevent miscarriages of jus- tice taking place when experts testify outside their sphere of expertise. My only issue with the its abolition Jones decision is of immunity only in respect of claims by the party retaining the expert. Surely, the rationale for abolition of the rule applies equally regardless of the party paying the expert. Indeed, the harm fl owing from biased or negligent expert testimony doesn't depend on the identity of the retaining party. Alan Shanoff was counsel to Sun Media Corp. for 16 years. He is currently a freelance writer for Sun Media and teaches me- dia law at Humber College. His e-mail address is ashanoff @ gmail.com.

• Cover
• Second Chance
• Expert Immunity
• Focus On Criminal Law