A new cost-benefit analysis for admission of expert reports introduced by the Supreme Court of Canada expands the gatekeeping role of judges in Canada (White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23). This development will change the landscape of expert evidence in personal injury lawsuits, especially when it comes to the hired guns such as ICBC doctors.
The Supreme Court of Canada unanimously imposed this additional threshold requirement to help judges determine whether the expert is able and willing to carry out his or her primary duty to the court. Although not intended to result in trials becoming longer or more complex, this is likely to happen, at least in the short term. Common law will have to be developed around this new threshold test and its application limited in scope.
In this case shareholders started a negligence action against former auditors of their company. The shareholders hired a forensic accountant to review all the relevant materials and to prepare a report of her findings. Her affidavit set out her findings, including her opinion that the auditors had not complied with their professional obligations to the shareholders. The auditors applied to strike out the affidavit on the grounds that she was not an impartial expert witness. The motions judge essentially agreed with the auditors and struck out the affidavit in its entirety. The majority of the Court of Appeal concluded that the motions judge erred in excluding the affidavit and allowed the appeal.
The duty that an expert witness owes to the court at common law and the admissibility of that opinion was articulated by the Supreme Court as follows:
 Underlying the various formulations of the duty are three related concepts: impartiality, independence and absence of bias. The expert’s opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party’s position over another. The acid test is whether the expert’s opinion would not change regardless of which party retained him or her: P. Michell and R. Mandhane, “The Uncertain Duty of the Expert Witness” (2005), 42 Alta. L. Rev. 635, at pp. 638-39. These concepts, of course, must be applied to the realities of adversary litigation. Experts are generally retained, instructed and paid by one of the adversaries. These facts alone do not undermine the expert’s independence, impartiality and freedom from bias….
…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 which the judge conducts to carry out his or her gatekeeping role.(emphasis added)
Presumption of impartiality? Not exactly,
…While I would not go so far as to hold that the expert’s independence and impartiality should be presumed absent challenge, my view is that absent such challenge, the expert’s attestation or testimony recognizing and accepting the duty will generally be sufficient to establish that this threshold is met.
Once the expert attests or testifies on oath to this duty, the burden is on the party opposing the admission of the evidence to show that there is a realistic concern that the expert’s evidence should not be received because the expert is unable and/or unwilling to comply with that duty. If this is established, the burden to establish admissibility remains on the party proposing to call the evidence. If this is not done, the evidence, or those parts of it that are tainted by a lack of independence or by impartiality will now have to be excluded.
This new legal test is likely to exclude a potentially large group of medical and other experts that work almost exclusively for ICBC, or for other reasons lack independence or impartiality.
Traditionally in British Columbia courts have allowed this type of tainted evidence to be admitted, affording it very little weight if the report strayed into advocacy. However with this modern rule lawyers can expect that these reports will no longer be admissible.
The White Burgess case means that cases such as Redmond v. Krider, 2015 BCSC 178 are no longer good law and should not be followed. In Redmond the doctor was cross-examined on the amount of income he received in 2013 from ICBC, and from the Medical Services Plan. Suffice it to say that 91% of his income for 2013 was derived from ICBC reports. In 2012, it was 87%, in 2011, 78% and in 2010, the year of the accident, 60%. The claimant’s lawyer therefore argued that the doctor’s report was not in keeping with the Supreme Court Civil Rules, in that it was biased and so not a neutral opinion rendered by an expert for the benefit of the Court. The court allowed the report in but gave it no weight. With White Burgess now the law of the land, this report would not have even been admitted.