April 30, 2015

Can respondents act as their own experts?

Administrative Law
Professional Regulation

Respondents in discipline hearings may sometimes attempt to act given their own “expert” evidence about the professional standards that apply to them. This does not mean, however, that hearing panels need accept them as experts, whatever their experience. While administrative tribunals in British Columbia, at least, are not bound by the rules of evidence (unless a statute says otherwise), the Supreme Court of Canada recently spoke to the need for experts to be independent, meaning uninfluenced by which party retained him. This factor is important enough that independence is a prerequisite to an expert’s testimony being admissible in a court. The need for independence is thus one reason why tribunals may reject expert testimony from people who have their own personal interest in the outcome of a hearing, such as the very person who may face discipline.

The Supreme Court of Canada examined the importance of expert independence in the Inman case, where shareholders of a company sued former auditors of their company for professional negligence. After retained a new accounting firm, GT, the shareholders retained a partner of PT to review materials and prepare a report on her findings, and her opinion on whether the former auditors had complied with their professional obligations. The auditors applied to strike out her evidence, which was initially successful but reversed by the appellate courts.

The court held that expert witnesses have a special duty to provide fair, objective and non-partisan assistance. Someone who is unable or unwilling to comply with this duty is not qualified to give expert opinion evidence. [2; 46] A proposed expert’s independence and impartiality “goes to admissibility and not simply to weight and there is a threshold admissibility requirement in relation to this duty. Once that threshold is met, remaining concerns about the expert’s compliance with his or her duty should be considered as part of the overall cost-benefit analysis….” [34]

The court held that the “threshold requirement is not particularly onerous” such that “it will likely be quite rare that a proposed expert’s evidence would be ruled inadmissible for failing to meet it.” [49] For example, in most cases, a mere employment relationship with the party calling the evidence would be insufficient to make the proposed expert’s evidence inadmissible. However, the court took issue with

  • “a direct financial interest in the outcome of the litigation,”
  • “a very close familial relationship with one of the parties,”
  • Any proposed expert that “assumes the role of an advocate for a party,” or
  • “situations in which the proposed expert will probably incur professional liability if his or her opinion is not accepted by the court.” [49] (emphasis added)

Thus the Supreme Court has made clear that someone testifying where he or she faces disciplinary measures if his or her opinion is not accepted will not meet the threshold test that courts should apply for accepting expert evidence, as such a person cannot provide fair, objective and non-partisan assistance.

White Burgess Langille Inman v. Abbott and Haliburton Company Limited, 2015 SCC 23 (April 30, 2015)

Lisa C. Fong