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Kootnekoff: Problematic experts in legal proceedings

Canadian courts are increasingly scrutinizing proposed experts for potential biases
Susan Kootnekoff is the founder of Inspire Law, an Okanagan based-law practice. She has been practicing law since 1994, with brief stints away to begin raising children. Susan has experience in many areas of law, but is most drawn to areas in which she can make a positive difference in people’s lives, including employment law. She has been a member of the Law Society of Alberta since 1994 and a member of the Law Society of British Columbia since 2015. Susan grew up in Saskatchewan. Her parents were both entrepreneurs, and her father was also a union leader who worked tirelessly to improve the lives of workers. Before moving to B.C., Susan practiced law in both Calgary and Fort McMurray, AB. Living and practicing law in Fort McMurray made a lasting impression on Susan. It was in this isolated and unique community that her interest in employment law, and Canada’s oil sands industry, took hold. In 2013, Susan moved to the Okanagan with her family, where she currently resides. Photo: Contributed

In legal proceedings, sometimes it is necessary for the judge to be educated on advanced scientific issues. In such cases, expert evidence is sought.

Although courts have always decided whether an expert’s evidence is admissible, Canadian courts are increasingly scrutinizing proposed experts for potential biases.

A paper entitled “Expert Witnesses and Bias: Case Examinations”, by a Canadian lawyer named Ms. Lisa Wannamaker, describes the origins of the increased scrutiny now given to expert testimony.

The increased scrutiny began around the time of the 2008 Goudge Inquiry in Ontario. This report is a fascinating read.

Justice Goudge reviewed the work of Dr. Charles Smith, a forensic pathologist regarded as a leading expert in the field of “pediatric pathology.” In numerous cases involving children’s deaths, Dr. Smith testified that children were murdered or otherwise seriously injured, even though the evidence simply did not support that conclusion.

Interestingly, pediatric pathology was not even a true field of expertise.

The inquiry examined 45 cases involving Dr. Smith. It found many problems.

A number of cases in which his testimony was originally accepted were later reversed on appeal. Many were acknowledged as wrongful convictions.

Individuals and entire families were devastatingly impacted by irresponsible expert testimony.

The Goudge report made numerous recommendations regarding expert evidence. It discussed how experts should approach their role, how lawyers should deal with experts, and how judges can best control expert evidence to ensure unreliable evidence is not admitted.

Hot on the heels of the Goudge report, Justice Paciocco, a law professor who is now a judge, wrote a paper, Unplugging Jukebox Testimony in an Adversarial System: Strategies for Changing the Tune on Partial Experts, which is frequently cited in courts across Canada.

Justice Paciocco identified various types of biases that experts may harbour. Some may be obvious. Some may not.

A major area of concern is experts who are not independent. This concern may arise if the expert has a relationship with the party in the proceeding that extends beyond the particular case. Examples include “ongoing employment,” a “personal relationship” or a “significant history of retainers.”

Such relationships raise a red flag on the expert’s independence.

Concerns that an expert is not impartial can also arise. For example, an expert may naturally want to “do something serviceable for those who employ you and adequately remunerate you.” One example is an expert who focuses only on information or results that support a certain outcome, while ignoring contrary information.

Experts may also lack impartiality if the expert feels that the party on whose behalf he or she is testifying has a morally superior case. This may result in the expert finding information to support that belief.

As was stated by the British Columbia Court of Appeal in J.P. v. British Columbia (Children and Family Development),

“Expert opinion evidence must also be fair, objective and non-partisan to be admissible…If an expert is not properly qualified and is not neutral, his or her opinion has the potential to “swallow whole the fact-finding function of the court.”

“Opinion evidence that fails to meet these requirements is prejudicial to each party’s right to a fair determination of the issues, lacks probative value and is therefore irrelevant, unnecessary and unhelpful.”

So, if you are involved in a proceeding of any type, and you feel an “expert” witness is not sufficiently independent or impartial, be sure to raise it with your lawyer. With much work by the lawyer, it is possible that a court may agree with you.

If you are a self-represented litigant, and this an issue in your case, you may already be aware that there is a huge body of law around expert evidence. The law in this area can be very technical and highly legal. Sadly, this is one area in which retaining counsel may become necessary.

The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Specialist advice from a qualified legal professional should be sought about your specific circumstances.

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