On the heels of the Ontario Court of Appeal’s landmark ruling on counsel communications with experts in Moore v. Getahun, the Supreme Court of Canada has released yet another groundbreaking decision on expert evidence.
The Supreme Court’s decision in White Burgess Langille Inman v. Abbott and Haliburton Co. provides new guidance on when allegations of bias will be sufficient to exclude expert evidence.1 As with Moore, White Burgess is sure to have a wide ranging impact on product liability litigation in Canada, as well as other areas where experts are prevalent.
Background to the Case
In White Burgess, the plaintiff shareholders brought a professional negligence action against the former auditors of their company after retaining a new accounting firm as auditors. The new auditors revealed problems with the previous auditors’ work, which had caused financial losses.
In response to the defendants’ summary judgment motion, the plaintiffs filed an affidavit from a forensic accounting expert who also happened to be a partner in a different office of the same accounting firm as the new auditors. The defendants argued that the expert was not impartial and ought to be disqualified due to this connection.
The Nova Scotia Supreme Court ordered that the expert’s affidavit be struck, finding that an expert “must be, and be seen to be, independent and impartial.”2 On appeal, a majority of the Nova Scotia Court of Appeal disagreed, finding that the affidavit should not have been struck.3
The Supreme Court’s Decision: A New Framework for Assessing Expert Bias
In a unanimous decision authored by Justice Cromwell, the Supreme Court upheld the decision of the Nova Scotia Court of Appeal. Justice Cromwell stated that underlying the various formulations of the duty are three related concepts: impartiality, independence and absence of bias.4
While independence and impartiality can be threshold issues affecting an expert’s admissibility, these thresholds are meant to be low. Absent challenge, experts’ testimony recognizing and accepting their duty to the court should be accepted at face value.
When assessing impartiality, it is not the mere fact of a connection to the litigation which matters but the nature and extent of that connection. Expert evidence should only be excluded in “very clear cases” where the court is able to determine that the expert is unwilling or unable to carry out their duty to the court.
Importantly, the concept of “apparent bias,” is not the proper test. The question is not whether a reasonable observer would think that the expert is not independent, but whether the relationship or interest results in the expert being unable or unwilling to carry out his or her duty to the court.
In light of the foregoing, the Court found there was no evidence that the plaintiffs’ expert was unwilling or unable to meet her duty to the court and that the expert’s evidence should not have been struck.
Key Take-Away Principle
The Supreme Court’s practical approach to expert bias should be encouraging to defendants in product liability cases. Where defendant manufacturers are large, multi-national entities and the risk of plaintiffs seizing on an apparent “connection” between the expert and defendant are heightened, a more restrictive rule would potentially place an unreasonable limit on the number of available experts. Although the court retains its discretion to consider whether the nature and extent of any such connection warrants exclusion, the mere existence of a connection will not be enough to disqualify an expert.