Law Times

Law Times • February 12, 2018 Page 13 www.lawtimesnews.com SCC to say if prominent case needs another look BY SHANNON KARI For Law Times T he Supreme Court of Canada is expected to announce in the com- ing weeks if it will take another look at the role of trial judges as gatekeepers when it comes to the admissibility and use of expert evidence. A leave application is be- fore the court from the Ontario Court of Appeal decision last summer in Bruff-Murphy v. Gunawardena, where it or- dered a new trial in a personal injury case as a result of a lack of independence shown by a de- fence medical witness. The Court of Appeal found that the trial judge did not con- duct a "cost-benefit analysis" at the qualification stage in deter- mining whether the expert's tes- timony should be admitted at all in the civil jury trial. The decision highlights a need for the Supreme Court to clarify the application of the principles it set out in 2015 in its decision in White Burgess v. Abbott and Haliburton Co., lawyers for Gunawardena said in the written leave submissions. "Notwithstanding White Burgess, there are a number of questions left unanswered (especially in the jury context as White Burgess arose in the context of a summary judgment motion)," writes Eugene Mee- han, lead counsel for Gunawar- dena on the leave application. If the Supreme Court agrees to hear the appeal, it would pro- vide an opportunity to "clarify the respective roles of the jury and trial judge; preserve the in- tegrity and finality of jury deci- sions; and reign in reviewing courts with respect to deference and judicial economy," writes Meehan, partner at Supreme Advocacy LLP in Ottawa. The Supreme Court decision in White Burgess stated that, in assessing whether an expert is fulfilling a duty to the court to be impartial and non-partisan, the task for the trial judge is not only about the weight to give the evidence. "I would hold that an expert's lack of independence and im- partiality goes to the admissibil- ity of the evidence in addition to being considered in relation to the weight to be given to the evi- dence if admitted," wrote Justice Thomas Cromwell for the court. "That approach seems to me to be more in line with the ba- sic structure of our law relating to expert evidence and with the importance our jurisprudence has attached to the gatekeeping role of trial judges," he explained. The threshold for an expert to meet at the qualification stage, however, is "not particu- larly onerous," stated Cromwell. If a court has found that the evidence meets the four require- ments set out in R v. Mohan, an expert who affirms to be im- partial will normally satisfy the threshold. In the Bruff-Murphy pro- ceeding, Superior Court Justice Paul Kane, who presided over the trial, cited White Burgess and concluded that given the low threshold for qualification, he could not exclude the testi- mony of the expert completely. In a "threshold motion" ruling on damages, issued after the jury's verdict, the trial judge was very critical about the credibility of the medical witness. The Court of Appeal, in its decision, concluded that the White Burgess analysis did not prevent the trial judge from do- ing more at the qualification stage to carry out the gatekeeper function. This role does not end once an expert is qualified, the three- judge panel explained. Sarah Corman, litigator and partner at Corman Feiner LLP, says the concept of the trial judge acting as a gatekeeper with re- spect to expert testimony is not new. "In recent years, there has been greater importance placed on an early assessment of an ex- pert," she notes. As well, the Supreme Court's ruling is not overly restrictive in terms of how judges can per- form this role, she suggests. "There is plenty in White Burgess about the admissibility stage," she says. Corman adds that the Court of Appeal ruling in Bruff- Murphy does not deviate from this analysis. "The message the Court of Appeal is trying to hit home to trial judges [is] that there is a gatekeeping role not only at the initial stage but throughout the entire trial," she says. At any time that an expert's testimony has "tipped the scale," then a judge has an obligation to take action, says Corman. Thorough research of the expert report provided by a witness for the opposing party is essential if you are trying to convince a judge to exclude that evidence, says Brian Sunohara, litigator and partner at Rogers Partners LLP in Toronto. "There is a heightened aware- ness around expert evidence. I would look more critically at the expert's qualifications," he says. "Courts don't want to hear evi- dence that is not helpful." Sunohara says that the mes- sage from the Court of Appeal is that the gatekeeping function "is an ongoing one" and some- thing to which lawyers must be alerted, especially in a civil trial with a jury. Judges who are more vigor- ous in scrutinizing expert testi- mony may run the risk of being accused of taking too activist a role in a trial, but Sunohara does not believe this will open up grounds of appeal. "I think the Court of Appeal will support these judges more," he says. "They will show deference to the trial judge." Both litigators say that if the Supreme Court does not grant leave in Bruff-Murphy, there is sufficient guidance currently for trial judges on how to conduct the gatekeeping function. LT Sarah Corman says the concept of the trial judge acting as a gatekeeper with respect to expert testimony is not new. Medico/Legal Your case is too important. You deserve the right EXPERT WITNESS. 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