In Krishnan v. Jamieson Laboratories Inc., 2025 BCSC 1289, the Supreme Court of British Columbia addressed the admissibility of several expert reports in a certified class proceeding involving natural health products. Justice Branch applied and clarified the principles governing expert evidence, with particular attention to the limits of expert opinion on legal and regulatory interpretation.
The court reaffirmed the two-stage admissibility test articulated by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (“White Burgess”), following R. v. Mohan, [1994] 2 SCR 9 and R. v. Abbey, 2009 ONCA 624. As summarized in Mand v. Cheema, 2024 BCSC 1701 at paras. 34–36, the party proffering expert evidence must first establish its:
a) relevance;
b) necessity to assist the trier of fact;
c) compliance with exclusionary rules; and
d) the existence of a properly qualified expert.
The second stage requires a discretionary balancing of the potential risks and benefits of the evidence.
Limits on Legal and Regulatory Interpretation
Justice Branch emphasized that experts must not step into the shoes of the Court or regulators. He relied on Walsh v. BDO Dunwoody LLP, 2013 BCSC 1463, where Justice Fitzpatrick held that expert opinions on domestic law are generally unnecessary and risk distorting the fact-finding process. Judges are presumed capable of interpreting domestic law without expert assistance.
This principle was further supported by The Owners, Strata Plan 4249 v. Travelers Insurance Company of Canada, 2018 BCSC 114, where Justice Adair rejected expert reports that attempted to interpret the Building Code, finding such interpretations to fall squarely within the purview of the Court.
Application to the Facts
Several expert reports were partially excluded for overstepping the permissible bounds. For example, portions of reports by Drs. Barrow and Andruski were struck because they expressed views on how Health Canada might interpret or apply its monographs. Justice Branch noted that while contextual references to regulatory frameworks are acceptable, assertions about how regulators should interpret those frameworks cross the line.
In contrast, Dr. Velazquez’s reports were largely admitted because they explained technical chemical matters from the perspective of a qualified expert, without assuming the role of a decision-maker. The Court emphasized that questions directed to experts must be framed to elicit opinions within their field of expertise, not interpretations of law or regulatory mandates.
Conclusion
Krishnan v. Jamieson affirms that expert evidence must stay within the bounds of technical expertise and not stray into legal interpretation or regulatory decision-making. The Court reiterated that the necessity and relevance of expert evidence are subject to strict scrutiny, especially where there is a risk of usurping the role of the judge or regulatory authority.
Key Cases Cited
- R. v. Mohan, [1994] 2 SCR 9
- White Burgess, 2015 SCC 23
- R. v. Abbey, 2009 ONCA 624
- Mand v. Cheema, 2024 BCSC 1701
- Walsh v. BDO Dunwoody LLP, 2013 BCSC 1463
- The Owners, Strata Plan 4249, 2018 BCSC 114
