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 ...... Jennifer Wright 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. Editorial Obiter LSUC strikes reasonable balance way for new blood. But, of course, the changes have met with hiccups along the way. Most recently, former treasurer Sydney Rob- ins raised concerns about rules that would have prevented past leaders of the LSUC from speaking at Convoca- tion. The change would have applied to future former treasurers, meaning Robins would have been able to con- tinue at Convocation with his current speaking and voting rights. Robins makes a good point. The A wisdom former LSUC leaders bring to the profession's governing body is valuable, so rule changes that would key focus for governance re- forms at the Law Society of Upper Canada was making allow them to continue to speak but not vote at Convocation are reason- able. In some ways, it's a better option than the current broader political cli- mate that essentially prevents former premiers and prime ministers from speaking out on the issues of the day. Certainly, there's no rule against doing so, but tradition dictates that they stay away from public comment on their successors. Some of them occasionally go against that convention — notably Pierre Trudeau's vocal public opposi- tion to constitutional reforms during Brian Mulroney's leadership — but such examples are relatively rare. The law society, of course, is differ- ent from the broader political sphere, so it's reasonable for it to take an alternative approach. At the same time, attendance requirements for for- mer treasurers to keep their privileges are legitimate as well. If the law soci- ety is to be successful in countering a feeling among some that it's a closed institution, it needs to be aggressive in reforming its image. The governance reforms, which eliminated life terms for benchers, are a good step forward, as are the attendance requirements. In the meantime, lawyers can look forward to the new blood that the governance changes will introduce over time. Already, six positions have opened up, meaning the LSUC will have a number of new benchers at Con- vocation after the upcoming elections. In enacting the reforms, the LSUC is taking a moderate and balanced ap- proach to institutional renewal. On the one hand, it's making way for new members while on the other allowing past leaders to bring their institutional memory to the table subject to the at- tendance rules. The changes may not be dramatic enough for some people or may go too far for others, but at least the law society is moving forward. Let's hope, then, that they'll entice a few more lawyers to vote or run in the upcom- ing bencher elections. At the very least, we'll have some idea by then as to whether the governance reforms are helping to reduce apathy towards the law society. — Glenn Kauth decision-makers to act fairly in reaching conclusion that affect the rights of others. Many expert witnesses fall into the category of decision- makers. Their decisions may result in the failure to obtain or the withdrawal of significant statutory benefits to motor vehicle accident victims. Their decisions may result in acci- dent victims being unable to get damages for pain and suf- fering in a tort action without undertaking an expensive trial. One might argue against this position on the basis that these experts provide opinions that are subject to rejection by an ul- timate decision-maker. But how often are their opinions tested in court? Further, on a practical level, their opinions are treated as P decisions by insurers. For these reasons, their opinions must be treated as decisions. The new obligations placed on experts under the amend- ments to the Rules of Civil rocedural fairness is a basic tenet of our justice system. This requires all Let's subject experts to added scrutiny Social Procedure seem to accept the duty of fairness by making it explicit that expert witnesses owe a duty to the court, not to the party retaining the expert. As Master Donald Short stated in Bakalenikov v. Semkiw, the expert "is the court's expert. She or he must not be an advocate for either side." More importantly, Short concluded that "the expert must be and must be seen to be detached and independent." Short is absolutely right. Based on the importance of their decisions and the legitimate ex- pectation of the parties, it's abso- lutely vital that expert witnesses must not only be independent but be seen to be so. As a corol- lary of being seen to be indepen- dent, their decisions must also be made free of any reasonable apprehension of bias. That brings me to the ques- tion of compensation. Nobody would seriously argue that ex- perts shouldn't be compensated for their time. But at the same time, no reasonable person Justice By Alan Shanoff could fail to see that experts who receive both a significant amount of money and a signif- icant percentage of their earn- ings from a single source can't be seen to be independent. Even if such experts could in fact act independently, they couldn't be seen to be acting independently. I couldn't express it any bet- ter than British Columbia per- sonal injury lawyer Faith E. Hayman, who wrote in a 2008 article for the Trial Lawyers As- sociation of British Columbia: "With respect to parties or wit- nesses, however, whether lay or expert, the dynamics of an adversarial system introduce pressures that leave the door open to conscious or even sub- conscious polarization. In situa- tions where experts are regularly www.lawtimesnews.com retained by either plaintiffs or defendants, financial consid- erations add to the potential for polarization. "It is naive to assume, without more, that a medical expert who generates signifi- cant income from provid- ing [independent medical examinations] for a particular 'interest group' is completely immune to these pressures, whether they are acted on or not. It should also be recog- nized that the pressures may well increase in the presence of a large institution that reg- ularly requires [independent medical examination] experts to provide opinions taking a particular view of the issues." Experts ought to be required to disclose both the amount paid for their reports and testi- mony along with the aggregate amount received from the same interest group expressed in dol- lar amounts and as a percentage of their earnings. By examining this data, a court could decide whether there's a reasonable apprehension of bias and, if February 7, 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 $159.00 + 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. so, disqualify the expert. If we applied such a test, there's no doubt we'd disqual- ify the retired surgeon who performed 400 independent defence medicals per year (see Williams v. Thomas Develop- ment Corp.) or the doctor (see Frazer v. Haukioja) whose practice profile "involves about 80 per cent of his medical legal work being done for defendants and that involves 'more like 25 per cent' of his professional time being devoted to medi- cal legal matters from which he earns 'probably twice as much income' as he does from his clinical practice." These aren't isolated examples. As Short stated in Bakalenik- ov, the amendment to the Rules has introduced a sea change. It's time we recognized this new re- ality and acted on it. LT Alan Shanoff was counsel to Sun Media Corp. for 16 years. He is currently a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is ashanoff@gmail.com.

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