Law Times

PAGE 4 NEWS JUNE 23, 2008 / LAW TIMES Beware of 'junk science,' says Moldaver BY ROBERT TODD Law Times A allow testimony from expert wit- nesses whose opinions often turn out to be "junk science." "Permitting experts to give evi- dence on matters that are com- monplace or for which they have no special skill, knowledge, or training wastes both time and resources and adds stress to an already overburdened justice sys- tem," wrote Justice Michael Mol- daver in a recent judgment for a panel that also included justices Eleanore Cronk and Robert Blair. "Apart from trial economy, trial judges who fail to properly perform their gatekeeper function run the risk of having their decision-mak- ing function usurped or severely eroded by 'expert generalists' who profess to know something about everything and who are only too willing to provide the court with a ready-made solution for any con- tentious issue that might exist," said Moldaver. "The problem with such witnesses is that while they appear knowledgeable and gener- ally come across well, upon closer scrutiny, their opinions may well turn out to be little more than n Ontario Court of Appeal justice has spoken out against trial judges who concoctions consisting of guess- work, speculation, commonplace information and junk science, with a hint of valid science thrown in for good measure." Moldaver made the comments in giving the court's reasons in Johnson v. Milton. The case, heard by Ontario Superior Court Justice Gerald Taylor in 2006, involved a negligence claim against the Cor- poration of the Town of Oakville in relation to a 1992 accident. In September 1992, Robert Johnson and his wife, Nelly, were riding their tandem bicycle on a road in the town. They lost control of the bike while travel- ling downhill toward a single-lane bridge and hit a rock embank- ment, killing the husband and severely injuring the wife. The wife brought the action on her own and on behalf of her infant children, claim- ing Oakville hadn't properly maintained the road where the accident occurred. The appeal court altered Tay- DD LT HR3rdD-N2 Print ad 6/13/08 12:11 PM Page 1 lor's decision, which found that Oakville was entirely responsible for the accident and ordered the town to pay "substantial dam- ages." The appeal court found that Oakville should bear only 60 per cent of the liability. Moldaver's comments regard- Oakville was not prejudiced by Gorski's testimony, as the trial judge's findings on factual cau- sation strayed from his opinion. However, Moldaver made a point of making clear his view that the trial judge's "'let-it-all-in' approach" to the expert's testi- mony must be avoided. "Courts must be vigilant to The appeal court ruled — it falls to us as litigants to take a closer look at what we present to the court,' says Philippa Samworth. 'It falls not only to trial judges ing "expert generalists" came in an analysis of the trial testimony of Zygmunt Gorski, a plaintiff witness who spoke as an expert in accident reconstruction. His testi- mony, which went ahead despite Oakville's objection, included anal- ysis of factors that might have con- tributed to the accident, including road topography, signage, the effect of bumps on a bike rider's ability to stay in control, and a number of other matters. No job is too BIG guard against such impermis- sible evidence," wrote Moldaver. "It is trite law that expert wit- nesses should not give opinion evidence on matters for which they possess no special skill, knowledge or training, nor on matters that are commonplace, for which no special skill, knowl- edge or training is required." Philippa Samworth, an insur- ance defence lawyer specializing in accident benefits for Dutton Brock LLP, agrees with Moldav- er and says judges aren't fulfill- ing their duties as gatekeepers in terms of expert evidence. "There is an awful lot of what we call 'junk science' going in — that is, evidence of people, not that their qualifications are bad, but the evidence they're giving is exactly the issue that the trial judge has to decide, number one. And number two, it's really no better evidence than a layperson might have," says Samworth. Paul Pape, who represented trial judges to allow question- able testimony from experts and "worry about it later." "The comments of Justice Moldaver are worth having a look at, because . . . at some stage, trial judges are going to be more rigor- ous in restricting the use of expert evidence," says Pape. Samworth notes that the lead- ing case in this area, the Supreme Court's 1994 case R. v. Mohan, says it's important to take a look at expert testimony to consider whether it's valid science. "You can't just say, 'The guy's the Johnson family in the case, says the tendency has been for an expert and he's going to help me in this case.' You've got to look at whether there's a solid basis in the scientific community to this type of evidence," she says. Excessive expert testimony is a major contributor to trial delays, says Samworth, noting that former associate chief jus- tice Coulter Osborne said in his report on Ontario's civil justice system that steps must be taken to cut down on and improve the quality of expert testimony. While Moldaver's com- ments are directed at trial judges, Samworth says lawyers also must be more vigilant in considering the quality of scientific evidence offered by their expert witnesses. "It falls not only to trial judges — it falls to us as litigants to take a closer look at what we present to the court," she says. LT Neutral process crucial Continued from page 1 to the inquiry, one that would not be acceptable to the Supreme Court, which has warned that commissions must make their recommenda- tions on the basis of 'objective criteria, not political expediencies,'" the commission's report says. The federal government might take caution from a judicial flap that has occurred in Ontario, where the Ontario Deputy Judges Association is protesting a decision by the provincial government to ignore recommenda- tions from a provincial commission on salaries. The commission, established by the Court of Appeal, had forced the government to increase the per diem rate for deputy judges from $232 to $475 in 2005, after the rates had remained unchanged since 1982. But the government rejected the commission's recommendation to continue the pay increases until the per diems reached $750 by Jan. 1 2009. "Deputy judges do not receive the same salary and do not have equal financial independence as full-time Provincial Court judges who do exactly the same work," says Michael Cobb, president of the Deputy Judges Association. The head of the Ontario Criminal Lawyers' Association says the neutral process for establishing federal judicial salaries and benefits is ultimately crucial to the notion of judicial independence — particu- larly since the federal government is a party in more than half of the litigation over which the judges preside. "It's very important that the perception never exist that one of the par- Responsible Forest Management Cert no. SW-COC-002302 or too small The business of printing solutions We've upgraded our printing & graphic services with the latest in printing technology offering the highest quality and most diversified services. U C Contact your Dye & Durham representative for more information and the business of printing solutions. Dye & Durham is A Division of The Cartwright Group Ltd Dye & Durham is an FSC certified company making a commitment to responsible Forest Management PREFERRED SUPPLIER E dyedurham.ca • 1-888-393-3874 • Fax: 1-800-263-2772 www.lawtimesnews.com ties can respond to its unhappiness with the performance of the judges by cutting their salary, or respond to pro-government rulings by increas- ing their salary," CLA president Frank Addario tells Law Times. "The government does win and does lose cases and ideological legisla- tion or government action is sometimes trimmed down, or rebuked or altered by judgments, and they ought to be free to do that without concern that the government will penalize them," he said. One of the most contentious aspects of this round of commission submissions was the government's decision to acquire federal income tax records for several hundred unidentified sitting judges, to compare their private-practice salaries to their income as judges. The CJC and the Superior Court Judges Association objected to the tactic, but the Justice Department said no privacy laws or income tax laws were violated because the results were viewed as an aggregate — without personal identification. The survey found 69 per cent of the sitting judges received a "signifi- cant" increase in salary after they were appointed, and 19 per cent were earning less than half of a judicial salary. The commission did not take the survey into consideration say- ing, among other things, it "does not tell use whether judicial salaries deter outstanding candidates who are in the higher income brackets of private practice from applying for judicial appointment." LT a D Y I n E 9 N p d & 9 C n D R m a 1 H a A n M S a 8 W e ' r e y C i o a

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