Association of chartered Certified accountants v. The Canadian Institute of Chartered Accountants, 2016 FC 1076

This recently reported motion considered the admissibility of expert reports, within the greater context of the Plaintiffs' argument that the Defendants are not "public authorities" as contemplated by subparagraph 9(1)(n)(iii) of the Trade-marks Act. The Defendants argued that the reports were inadmissible for two main reasons, namely that they were: (i) unnecessary; and (ii) subject to a rule of exclusion, as opinions on domestic law. The Court agreed with the Defendants that the reports failed to meet the standard four part-test from R v Mohan, and ordered that the reports, and their authors, be excluded from the upcoming trial.

On the issue of necessity, the Court noted that the admission of expert opinion evidence is the exception, not the rule. In an effort to satisfy their onus to demonstrate necessity, the Plaintiffs claimed that the reports: (i) assisted the Court in understanding the operation of provincial statute; (ii) saved the Court's time and resources; and (iii) were accurate and complete. Contrary to the Plaintiffs' submissions, the Court found that the reports failed to meet Mohan's necessity criterion and were, for that reason alone, inadmissible.

The Court also concluded that the reports failed to meet the third criteria from the Mohan test, namely that they were subject to the exclusionary rule on domestic law evidence. The Federal Court of Appeal in Ontario Association of Architects v Ontario Association of Architectural Technologists, 2002 FCA 218 [Architects], set out a two part test for a "public authority" under subparagraph 9(1)(n)(iii), namely that the public authority (i) be subject to significant government control and (ii) benefit the public. The Court found that the reports went beyond factual or contextual considerations, and drew legal conclusions on whether the degree of government control met the threshold of "significant". The Court held that the reports were inadmissible as they ultimately provided a legal opinion of the test established in Architects case.