Law Times

June 26, 2017

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Law Times • June 26, 2017 Page 3 Court of Appeal orders new trial Judges must be gatekeepers on expert evidence BY ALEX ROBINSON Law Times L awyers say a recent Court of Appeal decision re- affirms a judge's role as a strong gatekeeper when it comes to admitting expert evi- dence. In Bruff-Murphy v. Gun- awardena, the Court of Appeal ordered a new trial after finding expert evidence should not have been admitted in a civil jury trial concerning a personal injury dispute. Lawyers say the decision is also a confirmation that expert witnesses be independent rather than advocates for the party that retained them. "It it wasn't clear already, the days of hired guns on both sides are over," says Todd McCarthy, a partner with Flaherty McCarthy LLP, who was not involved in the case. The Court of Appeal's rul- ing set aside the jury's verdict that awarded $23,000 in gen- eral damages, but it declined to award all other types of dam- ages to the plaintiff, Liese Bruff- McArthur, who brought her claim after a car accident. The expert evidence in ques- tion on appeal was that of Monte Bail, a psychiatrist who provided testimony on behalf of the de- fendants. The Court of Appeal found Bail crossed the line of "accept- able conduct" and "descended into the fray as a partisan advo- cate." "In these circumstances, the trial judge was required to fulfil his ongoing gatekeeper function and exclude in whole or in part the expert's unacceptable testi- mony," Justice William Houri- gan wrote in the decision. "Instead, the trial judge did nothing, resulting in trial fair- ness being irreparably com- promised." At issue was a report sub- mitted by Bail, which the court found came dangerously close to "usurping the role of the jury" by assessing Bruff-McArthur's credibility. The court found that there was a risk of unfairness because of the way Bail had conducted a "hunt for discrepancies" be- tween what the plaintiff said in a short interview and her medical records, which the court found she should have had an oppor- tunity to clarify. The Court of Appeal found that the potential risks of ad- mitting Bail's evidence far out- weighed the potential benefits. McCarthy says the decision confirms that civil litigation has been in a new era of scrutinizing expert opinion since amend- ments were made to the Rules of Civil Procedure in 2010. "This is not just about this case and a particular expert that was scrutinized," says Mc- Carthy. "It's about all experts in all disciplines and the new reality of their first and only duty of being objective, non-partisan and fair." The Court of Appeal also found the trial judge, Ontario Superior Justice Paul Kane, had failed to properly discharge his gatekeeper duty at the qualifica- tion stage and that he then later failed to intervene when Bail's evidence "crossed the line from an objective witness to an advo- cate for the defence." "Despite his concerns, the trial judge did nothing to ex- clude the opinion evidence or alert the jury about the problems with the expert's testimony," Hourigan said in the decision. Kane did attempt to instruct Bail not to testify about certain issues, but he later admitted in reasons he provided on a motion at the end of the trial that if had he undertaken a "cost-benefit analysis" he would not have let Bail testify. Geoffrey Adair, the lawyer who represented the plaintiffs on the appeal, says the decision sets aside a general view that a trial judge's gatekeeper function is over after a witness is qualified to give expert testimony. The qualification stage in- cludes the questioning of the witness to determine if they should be allowed to give opin- ion evidence. "People thought once that decision was made, that was the end of it as far as the admissibil- ity of the expert's evidence went. This decision made it very clear that's not the end of it," Adair says. "If, in giving his evidence, the expert comes across as biased or an advocate for one side or the other, then a trial judge should step in and do something about it." Adair adds that the decision is going to make lawyers think twice about hiring experts who are going to be biased in their favour. "I thought that was a huge problem for years in our system and this will go some distance to get rid of it," he says. Daniel Reisler, the lawyer for the defendants, says the com- plaints about Bail were very un- fair. "You've got an honest witness honestly expressing his views, but his views were opposed to the plaintiff. Well, so be it," he says. "There happen to be a lot of claims out there where plaintiffs are presenting claims that are just not legitimate that don't de- serve compensation for various reasons." Reisler says he found the evi- dence for the finding that Bail was not independent was quite thin. He says he believes the Court of Appeals decision could create a chill on independent experts from expressing honestly held views if they contradict what the plaintiff wants to hear. "There is a mythology devel- oping, which is promoted by the plaintiffs bar and disgruntled plaintiffs, that defence experts are biased and that defence ex- perts are hired guns," he says, "when the reality is that if there is any bias at all there is much more of it on the plaintiff 's side." Reisler adds that he has not received instructions from his client as to whether they intend to seek leave from the Supreme Court of Canada to appeal the decision. Andrea Girones, a lawyer who was not involved in the case, says the decision gives the plain- tiffs bar strong case law at the ap- pellate level to keep reports from biased experts out of trials. She says that while there has to be some kind of gatekeeper function by judges, it will be up to plaintiff-side lawyers to bring these things to the judges' atten- tion. "We now have a strong de- cision to say we can challenge these expert opinions before they even go in," she says. "We have to let the judge know that the basis of this evi- dence is faulty and we have to f lag that the prejudicial effect greatly outweighs the probative value." Girones says that judges are often tepid to exclude defence experts completely, as they worry about being appealed and fairness, but this decision tells judges they have the right to throw these kinds of things out. "I don't know if judges will be brave enough to do it, but I hope they are," she says. LT NEWS Geoffrey Adair says a Court of Appeal deci- sion makes it clear that the judge's gate- keeper function does not end once expert witnesses are qualified to give testimony. © 2017 Thomson Reuters Canada Limited 00244SZ-A87345-CE Start stronger. Finish faster. SECONDARY SOURCES ON WESTLAWNEXT® CANADA Confidently take on complicated matters and leverage the topical expertise from world-class authors, including practitioners, law professors, and judges, who know and shape the law to quickly get the answers you need. Explore what's new to Secondary Sources on WestlawNext Canada. You've got an honest witness honestly expressing his views, but his views were opposed to the plaintiff. Daniel Reisler

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