Wednesday: What’s Hot on CanLII
Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.
For this last week:
1. Moore v. Getahun, 2015 ONCA 55
[63] Consultation and collaboration between counsel and expert witnesses is essential to ensure that the expert witness understands the duties reflected by rule 4.1.01 and contained in the Form 53 acknowledgment of expert’s duty. Reviewing a draft report enables counsel to ensure that the report (i) complies with the Rules of Civil Procedure and the rules of evidence, (ii) addresses and is restricted to the relevant issues and (iii) is written in a manner and style that is accessible and comprehensible. Counsel need to ensure that the expert witness understands matters such as the difference between the legal burden of proof and scientific certainty, the need to clarify the facts and assumptions underlying the expert’s opinion, the need to confine the report to matters within the expert witness’s area of expertise and the need to avoid usurping the court’s function as the ultimate arbiter of the issues.
[64] Counsel play a crucial mediating role by explaining the legal issues to the expert witness and then by presenting complex expert evidence to the court. It is difficult to see how counsel could perform this role without engaging in communication with the expert as the report is being prepared.
2. Spence v. BMO Trust Company, 2015 ONSC 615
[37] The Ontario Court of Appeal found that it was in the interests of society that the court intervene on the grounds of public policy. While it recognized the freedom of an owner of property to dispose of his or her property as he or she chose and that this was an important interest that has long been recognized in society, the court held that the trust was premised on notions of racism and religious superiority, which contravened contemporary public policy. The court struck out the recitals and removed all restrictions with respect to race, colour, creed, religion, ethnic origin and sex.
[38] BMO argued that the public policy doctrine does not apply in a case such as this in which the granting document (ie: the will) does not say anything that would contravene public policy or create harm to the public. There is no mention in the will that Verolin is being disinherited because the father of her child is not black. In fact, the will states that the basis for Verolin’s disinheritance was a lack of communication with her father. As of the date when Verolin informed her father of the parentage of her child there had been no communication between Verolin and her father, and as such, the relevant paragraph of the will cannot be impugned.
3. Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4
[1] In the Alberta Reference (Reference re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313), this Court held that the freedom of association guaranteed under s. 2(d) of the Canadian Charter of Rights and Freedoms did not protect the right to collective bargaining or to strike. Twenty years later, in Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 (CanLII), [2007] 2 S.C.R. 391, this Court held that s. 2(d) protects the right of employees to engage in a meaningful process of collective bargaining. The rights were further enlarged in Ontario (Attorney General) v. Fraser, 2011 SCC 20 (CanLII), [2011] 2 S.C.R. 3, where the Court accepted that a meaningful process includes employees’ rights to join together to pursue workplace goals, to make collective representations to the employer, and to have those representations considered in good faith, including having a means of recourse should the employer not bargain in good faith. And, most recently, in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 (CanLII), the Court recognized that a process of collective bargaining could not be meaningful if employees lacked the independence and choice to determine and pursue their collective interests. Clearly the arc bends increasingly towards workplace justice.
[2] The question in this appeal is whether a prohibition on designated employees participating in strike action for the purpose of negotiating the terms and conditions of their employment amounts to a substantial interference with their right to a meaningful process of collective bargaining and, as a result, violates s. 2(d) of the Charter. The question of whether other forms of collective work stoppage are protected by s. 2(d) of the Charter is not at issue here.
The most-consulted French-language decision was R. c. Lafortune, 2015 QCCM 1
26) C’est ce qu’on appelle maintenant de la cyberintimidation, au sujet de laquelle, jusqu’à maintenant, il n’y a pas ou peu de législation pour l’interdire, même s’il y a un rapport qui a été déposé sur cette question auprès des différents ministres de la Justice[2].
27) Inutile pour moi de préciser qu’une telle situation doit être dénoncée parce que si elle ne l’est déjà, elle risque de devenir un véritable fléau pouvant causer de très graves préjudices à des personnes et organisations.
28) Dans la présente affaire, l’accusé a expédié un courriel menaçant, utilisant un langage violent de façon tout à fait gratuite à l’égard de personnes qu’il ne connaissait pas et ainsi a contribué à causer de très sérieux dommages.
* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months
RE: [63] Consultation and collaboration between counsel and expert witnesses is essential to ensure that the expert witness understands the duties reflected by rule 4.1.01 and contained in the Form 53 acknowledgment of expert’s duty. (Moore v. Getahun, 2015 ONCA 55)
What happens when this assertion is juxtaposed against the stream of “access to justice” rhetoric as it pertains to medico-legal experts in the personal injury context? Many (if not most) of the more prolific vendors of expert opinion evidence in the area of personal injury “insurance medicine” have taken formal instruction on the duties of experts(https://www.google.ca/#q=university+of+montreal+insurance+medicine+program.
Many, if not most, vendors of expert medico-legal opinion evidence attend endless conferences and seminars offered by the Canadian Society of Medical Evaluators (CSME) during which the topic of the duties of experts repeatedly arises (encapsulated here: http://www.csme.org/news/178847/CSME-Response-to-the-CPSO-Draft-Policy-Medical-Reports.htm
Arguably, with this backdrop, it ought not be “essential” for each and every litigator who hires one of these experts to need to yet again “ensure” their expert knows the role/duties of the expert. In fact, some might argue that it should go without saying that experts (especially the professional vendors of medico-legal expertise) ought to be honest and objective and impartial and properly qualified and not stray above/beyond their area of expertise. And yet the personal injury litigation landscape is awash in cases replete with adverse (quasi)judicial comments aimed toward partisan and even unqualified experts. How it possible that we hear about a “proliferation” of “hired gun” experts in the personal injury context even as we are told that litigators are constantly reminding their experts about their “duties”? How can so much instruction on the duties of experts be failing so miserably?
Aren’t the experts listening? Or is it that the Rules of Civil Procedure in this regard are overly-confusing? Or is it that the litigators who meet with their experts re failing to be clear? Clearly, something is wrong or we wouldn’t have such an array of problems (chronicled even in the mainstream press) with the quality of expert opinion evidence in the personal injury context.
RE: Moore v. Getahun, 2015 ONCA 55
[63]” Consultation and collaboration between counsel and expert witnesses is essential …”
In Bakalenikov v. Semkiw – Master Short addressed Rule 53.03 and asked: “How are long time plaintiffs’ and defendants’ experts to be “trusted” to change their stripes?” Alas, it appears they haven’t.
https://www.canlii.org/en/on/onsc/doc/2010/2010onsc4928/2010onsc4928.html?searchUrlHash=AAAAAQAecGFydGlzYW4gZXhwZXJ0IGNoYW5nZSBzdHJpcGVzAAAAAAE&resultIndex=2
Bakalenikov v. Semkiw, 2010 ONSC 4928 (CanLII)
[70] Rule 53.03 has been amended. Now it tries to bridge the chasm between Plaintiffs and Defendant’s expert witness reports. It makes both terms now at least somewhat misleading. It requires experts to give the following specific Undertaking:
“3. I acknowledge that it is my duty to provide evidence in relation to this proceeding as follows:
(a) to provide opinion evidence that is fair, objective and non-partisan;
(b) to provide opinion evidence that is related only to matters that are within my area of expertise; and
(c) to provide such additional assistance as the court may reasonably require, to determine a matter in issue.
4. I acknowledge that the duty referred to above prevails over any obligation which I may owe to any party by whom or on whose behalf I am engaged.
[71] This Undertaking requires experts, counsel retaining them, and the Court to reconsider their respective roles and practices. This Undertaking must be read as seeking to improve the way expert evidence is procured. Now, by her or his Undertaking accompanying any report, the Expert is the Court’s expert. She or he must not be an advocate for either side.
[72] Whether retained by Plaintiff or Defendant, experts are called upon to assist the Court to understand technical issues from an independent perspective. In the matter now before me the extent of the plaintiff’s injuries and her future prognosis are at issue.
[73] It needs to be clearly stated that each of the Plaintiff and the Defendant is entitled to select an expert in whose credentials and reputation they have confidence. They must choose and pay that expert, and provide her or him with all relevant material. The expert must state what she or he has been given, and by whom. Counsel must update the expert they have retained with fresh evidence or reports as they come in, and seek updated and other opinions as matters develop as necessary.
[74] But beyond such proper contact, the Expert’s Undertaking requires that she or he be seen to be independent of those who retained the expert. Counsel and those ultimately responsible for funding the payment of any judgment must restrain their contact. In my view, under this new structure, the expert must be and must be seen to be detached and independent.
[75] I leave open the issue as whether that independence means that consultation between the expert and the Party, counsel, insurer or other defender or indemnifier, must be restricted to the proper and demonstrably transparent passage of information, the asking of questions and receipt of reports answering the questions asked.
[76] The Court expects and relies upon frank and unbiased opinions from its Experts. This is a major sea change which requires practical improvements to past opaque processes. How are long time plaintiffs’ and defendants’ experts to be “trusted” to change their stripes? At the initial stages skilled, licenced professionals clearly must be taken at their word that on principal they take their Form 53 Undertaking to Court seriously. They are clearly promising to bring a new, transparent and objective mind set to the drafting of their reports and to their subsequent testimony.
[77] In this case I am obliged to consider a proposed expert who has on at least 3 occasions had his opinions disregarded by the Court for bias and advocacy for the Defence. He has been criticized by a judge of this Court for delivering his evidence as “an advocate for the party calling him as a witness.”
[76] The Court expects and relies upon frank and unbiased opinions from its Experts. This is a major sea change which requires practical improvements to past opaque processes. How are long time plaintiffs’ and defendants’ experts to be “trusted” to change their stripes? At the initial stages skilled, licenced professionals clearly must be taken at their word that on principal they take their Form 53 Undertaking to Court seriously. They are clearly promising to bring a new, transparent and objective mind set to the drafting of their reports and to their subsequent testimony.
RE: [63] Consultation and collaboration between counsel and expert witnesses is essential to ensure that the expert witness understands the duties reflected by rule 4.1.01 and contained in the Form 53 acknowledgment of expert’s duty. (Moore v. Getahun, 2015 ONCA 55)
What happens when this assertion is juxtaposed against the stream of “access to justice” rhetoric as it pertains to medico-legal experts in the personal injury context? Many (if not most) of the more prolific vendors of expert opinion evidence in the area of “insurance medicine” have taken instruction on the duties of experts(https://www.google.ca/#q=university+of+montreal+insurance+medicine+program.
Many, if not most, vendors of expert medico-legal opinion evidence attend endless conferences and seminars offered by the Canadian Society of Medical Evaluators (CSME) at which the topic of the duties of experts repeatedly arises (encapsulated here: http://www.csme.org/news/178847/CSME-Response-to-the-CPSO-Draft-Policy-Medical-Reports.htm
Arguably, with this backdrop, it ought not be “essential” for each and every litigator who hires one of these experts to need to “ensure” their expert knows the role/duties of the expert. In fact, some might argue that it should go without saying that experts ought to be honest and objective and impartial and properly qualified and not stray above/beyond their area of expertise. And yet the personal injury litigation landscape is awash in cases replete with adverse (quasi)judicial comments aimed toward partisan and even unqualified experts. How it possible that we hear about a “proliferation” of “hired gun” experts in the personal injury context even as we are told that litigators are constantly reminding their experts about their “duties”?
Aren’t the experts listening? Or is it that the Rules of Civil Procedure in this regard are overly-confusing? Or is it that the litigators who meet with their experts are failing to be clear? Something is wrong or we wouldn’t have such an array of problems (chronicled even in the mainstream press) with the quality of expert opinion evidence in the personal injury context.