In Laudon v. Roberts, Mr. Justice Guy D. DiTomaso ruled that an expert witness retained by the plaintiff could not testify at trial.
The action was one for personal injuries arising out of a boating accident. The plaintiff had been a passenger in a boat that collided with another boat. The operators of both boats were sued. The plaintiff retained Ronald M. Blanchet of Marine Accident Services to provide an expert opinion regarding the collision. The expert prepared two reports (which were supposed to have been attached to Justice DiTomaso’s reasons for judgment but did not find their way into the CanLii version of the reasons). The defence objected to the admissibility of Mr. Blanchet’s testimony at trial.
There were several bases to the objection:
- the evidence did not meet the “necessity” criterion laid down by the Supreme Court of Canada in R. v. Mohan;
- the witness was not properly qualified to give expert opinion evidence; and
- the witness had improperly assumed the role of “advocate” for the plaintiff.
Justice DiTomaso ruled that the expert was qualified, so no exception could be taken to his evidence on the second of these three grounds. His Honour also did not rule that the expert had become an advocate. However, he held that the first objection (that the evidence be “necessary” to assist the trier of fact) was well-founded and he disqualified Mr. Blanchet from testifying on that basis. The reasons are interesting because they potentially apply to a broad spectrum of cases.
Justice DiTomaso was very critical of the expert in this case because in his two reports, Mr. Blanchet had, His Honour concluded, usurped the function of the trier of fact by providing an “assessment of operator negligence”. This, said the court, was the ultimate issue in the case and was not for the expert to decide.
His Honour relied on the Court of Appeal’s 2001 decision in Webb v. Waterloo (Region) Police Services Board for the proposition that “expert opinion evidence is admissible only when the trier of fact is unable to form his or her own conclusions on the issues in the case without help”. Here, His Honour felt that the case was not complex. Two boats without navigation lights had collided head-on in the dark. He felt that a jury would be well able to decide the case based on common sense and without expert assistance. Accordingly, the necessity requirement was not met.
(One wonders why it was thought necessary for a plaintiff passenger to obtain expert evidence on these facts.)
DiTomaso J. went on criticize the expert’s reports as being “so badly drafted that no portion of them can be saved or excised including any portion of those reports that may speak to causation”.
While His Honour did not find that the expert Blanchet had become an advocate for the plaintiff, he did adopt the comments of Justice Farley (as he then was) in Bank of Montreal v. Citak, that “experts must be neutral and objective. To the extent that they are not, experts are not properly qualified to give expert opinions.”
It is not clear that independence is, in fact, a requirement for expert testimony before Ontario courts. One of us had occasion to rely on the Citak decision in the Court of Appeal, in Tri-Co Printing v. Paterson. While the Court of Appeal did not conclusively rule on the issue, Madam Justice Simmons remarked, in the course of argument, that no appellate court in Ontario had adopted Justice Farley’s “independence” requirement for expert witnesses. In its reasons in Tri-Co, the Court of Appeal said, “[w]hile there may be limited circumstances in which an otherwise qualified expert would not be permitted to give expert evidence because of lack of neutrality (rather than have the weight given to their evidence diminished), in our view, this is not such a case.” This is an issue on which it would be useful to have a more definitive statement of the law from the Court of Appeal.
In the meantime, the Laudon decision serves as a warning to counsel whose experts stray beyond the proper scope of their mandates.