Expert Opinion Evidence: A Return to First Principles or a New Paradigm?

Benson CowanCounsel to the Executive Chairs and Legal Services ManagerEnvironment and Land Tribunals OntarioSafety, Licensing Appeals and Standards Tribunals Ontario26 October 2015

Opinion Evidence at Common Law• Opinion – a witness’s inference from observed facts - has long been considered

inadmissible at common law.– Basis of the prohibition is that the drawing of inferences is the sole purview of the trier of

fact.• But, in most cases, it is not possible to sever opinion from fact.

“Although the distinction between fact and inference is clear enough up to a point, there are borderline cases. The statement that a car was being driven on the left side of the road is plainly one of fact, while the assertion that a particular piece of driving was negligent is equally clear a matter of inference from observed facts. Statements concerning speed, temperature, or the identity of persons, things and handwriting are, however, indissolubly composed of fact and inference. The law makes allowance for these borderline cases by permitting witnesses to state their opinion with regard to matters not calling for special knowledge whenever it would be virtually impossible for them to separate their inferences from the facts on which those inferences are based.” (Rupert Cross, Evidence, 3rd ed., 1967.)

• Traditional set of rules restricting the use of opinion evidence by lay witnesses:– Basis for the opinion can be stated without reference to the conclusion.– Cases in which the opinion would not help the court.– Non-expert opinion on areas requiring experts.

Roots of Expert Opinion Evidence• The opinion evidence of learned people (mostly men) has a long history in the

common law.• In the pre-rational days – when the trial was a platform for a community to bear

witness to the will of a Christian god – trial by oath, or compurgation, was one of the traditional modes of inquiry along with trial by ordeal and trial by combat.

• This “wager of law” was used by a defendant in an action for debt. – The defendant would swear an oath.– Any number of up to 12 leading citizens would swear an oath that the believed the account.

• “It was an eminently unsatisfactory way of arriving at the merits of a claim, and it is therefore not surprising to find that the policy of the law was in favour of its restriction rather than of its extension.” (Encyclopedia Britannica: 1911)

• Some of the criticisms of compurgation can be seen in the concerns about expert opinion evidence:– Obvious concerns about the bias of witnesses.– Over-reliance on formality as opposed to substance (i.e. who called the most experts…).– Usurpation of fact-finder’s role by authoritative and powerful witnesses.

Common Law History of Expert Opinion Evidence

• Reliance on expert witnesses was not uncommon as trials developed into a mode of rational inquiry, but as trials in the late 18th century began to become concerned with increasingly complex and novel technical issues it became harder to avoid having to rely on experts.

• Related, of course, to the dramatic rise of science and technology in British society– More complex commercial litigation– More forensic inquiry in criminal cases

• Relying on a series of cases where opinions on handwriting were permitted, Lord Mansfield in Folkes v Chadd (1782) sated that it was well-settled that the “…in matters of science , the reasonings of men of science can only be answered by men of science…” and upheld a trial judge’s admission of the evidence of an engineer with an expertise in the building of harbours.

• Similarly, in 1807, in Beckwith v. Sydebotham, Lord Ellenborough allowed the evidence of shipbuilders on the seaworthiness of a ship based upon a report prepared by others.

• But from the start there has been a concern both about bias and about usurpation:– “hardly any weight is to be given to the evidence of what are called scientific witnesses; they come with a bias on

their minds to support the cause in which they are embarked. Lord Campbell in The Tracey Peerage (1843)– It is scarcely necessary to add that scientific evidence being generally matter of opinion, can seldom be implicitly

adopted. Lord Cottenham said [Dyce Sombre’s Case], he had seen enough of professional opinions to be aware that in matters of doubt, upon which the best constructed and best informed minds may differ, there is no difficulty in procuring opinions on either side. William Wills, An Essay on the Principles of Circumstantial Evidence , 1862.

Development of Expert Opinion Evidence in Canada: Graat

• Case involving the opinion evidence of two non experts – police officers – that the defendant was unable to drive. The Court held that the line between fact and opinion was not always clear and courts should be flexible if the evidence is helpful: R. v. Graat [1982] 2 S.C.R. 819:

“ Except for the sake of convenience there is little, if any, virtue, in any distinction resting on the tenuous, and frequently false, antithesis between fact and opinion. The line between “fact” and “opinion” is not clear. To resolve the question before the Court, I would like to return to broad principles. Admissibility is determined, first, by asking whether the evidence sought to be admitted is relevant. This is a matter of applying logic and experience to the circumstances of the particular case. The question which must then be asked is whether, though probative, the evidence must be excluded by a clear ground of policy or of law.A non-expert witness cannot, of course, give opinion evidence on a legal issue as, for example, whether or not a person was negligent. That is because such an opinion would not qualify as an abbreviated version of the witnesses factual observations. An opinion that someone was negligent is partly factual, but it also involves the application of legal standards. On the other hand, whether a person’s ability to drive is impaired by alcohol is a question of fact, not of law. It does not involve the application of any legal standard. … I conclude with two caveats. First, in every case, in determining whether an opinion is admissible, the trial judge must necessarily exercise a large measure of discretion. Second, there may be a tendency for judges and juries to let the opinion of police witnesses overwhelm the opinion evidence of other witnesses. Since the opinion is admitted under the “compendious statement of facts” exception, rather than under the “expert witness” exception, there is no special reason for preferring the police evidence over the “opinion” of other witnesses. ”

Development of Expert Opinion Evidence in Canada: Abbey

• Case involving the admission of psychiatric evidence. The question was whether the opinion had to be based upon first-hand knowledge. In saying no, the court summarised the state of the law on opinion evidence and the relevance of first-hand knowledge: R. v. Abbey [1982] 2 S.C.R. 24

“ Witnesses testify as to facts. The judge or jury draws inferences from the facts. "In the law of evidence 'opinion' means any inference from observed fact, and the law on the subject derives from the general rule that witnesses must speak only to that which was directly observed by them" (Cross on Evidence, supra, at p. 442). Where it is possible to separate fact from inference the witness may only testify as to fact. It is not always possible, however, to do so and the "law makes allowances for these borderline cases by permitting witnesses to state their opinion with regard to matters not calling for special knowledge whenever it would be virtually impossible for them to separate their inferences from the facts on which those inferences are based" (ibid.)With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. An expert's function is precisely this: to provide the judge and jury with a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate. "An expert's opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, then the opinion of the expert is unnecessary" (Turner (1974), 60 Crim. App. R. 80, at p. 83, per Lawton L.J.)

Development of Expert Opinion Evidence in Canada: Beland

• In this case, the issue was the admissibility of the results of a polygraph examination by the defendant: R. v. Beland, [1987] 2 S.C.R. 398“The function of the expert witness is to provide for the jury or other trier of fact an expert's opinion as to the significance of, or the inference which may be drawn from proved facts in a field in which the expert witness possesses special knowledge and experience going beyond that of the trier of fact. The expert witness is permitted to give such opinions for the assistance of the jury. Where the question is one which falls within the knowledge and experience of the triers of fact, there is no need for expert evidence and an opinion will not be received.”

Development of Expert Opinion Evidence in Canada: Mohan

• This case dealt with the admission of psychiatric evidence relating to disposition. The Court took an opportunity to establish a clear set of criteria for the admission of expert opinion evidence: R. v. Mohan, [1994] 2 S.C.R. 1994

• Admission of expert evidence depends on the application of the following criteria– relevance;– necessity in assisting the trier of fact;– the absence of any exclusionary rule;– a properly qualified expert.

Development of Expert Opinion Evidence in Canada: Mohan

• Relevance“Relevance is a threshold requirement for the admission of expert evidence as with all other evidence. Relevance is a matter to be decided by a judge as question of law. Although prima facie admissible if so related to a fact in issue that it tends to establish it, that does not end the inquiry. This merely determines the logical relevance of the evidence. Other considerations enter into the decision as to admissibility. This further inquiry may be described as a cost benefit analysis, that is "whether its value is worth what it costs." …There is a danger that expert evidence will be misused and will distort the fact-finding process. Dressed up in scientific language which the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves.

• NecessityThis pre-condition is often expressed in terms as to whether the evidence would be helpful to the trier of fact. The word "helpful" is not quite appropriate and sets too low a standard. However, I would not judge necessity by too strict a standard. What is required is that the opinion be necessary in the sense that it provide information "which is likely to be outside the experience and knowledge of a judge or jury": as quoted by Dickson J. in R. v. Abbey, supra. As stated by Dickson J., the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature. …There is also a concern inherent in the application of this criterion that experts not be permitted to usurp the functions of the trier of fact. Too liberal an approach could result in a trial's becoming nothing more than a contest of experts with the trier of fact acting as referee in deciding which expert to accept.

Development of Expert Opinion Evidence in Canada: McIntosh

• In this case, Finlayson J.A. offered a detailed critique of the increasing reliance on expert opinion evidence in criminal cases, in this case it was eyewitness identification evidence: R. v. McIntosh 35 O.R. (3rd) 97 (Ont. C.A.)

“I am astonished at the passivity of the Crown at trial and on appeal with respect to this type of evidence. At trial, Crown counsel contented himself with the early observation that the witness had said nothing that would convince him that a psychologist would know what information would be "probative" to the trial. However, he did not cross-examine Dr. Yarmey on his qualifications, or at all, and seemed to accept that the substance of his testimony was properly the subject-matter of expert evidence. On appeal, Crown counsel limited his argument to the submission that we should defer to the trial judge who rejected the evidence in the exercise of her discretion. He was careful, however, to state that there could be cases in which this evidence could be admitted.This posture is not surprising given the reliance by the Crown on the "soft sciences" in other cases…Paraphrasing freely from the definition of "science" in The Shorter Oxford English Dictionary on Historical Principles, it seems to me that before a witness can be permitted to testify as an expert, the court must be satisfied that the subject- matter of his or her expertise is a branch of study in psychology concerned with a connected body of demonstrated truths or with observed facts systematically classified and more or less connected together by a common hypothesis operating under general laws. The branch should include trustworthy methods for the discovery of new truths within its own domain. I should add that it would be helpful if there was evidence that the existence of such a branch was generally accepted within the science of psychology.”

Development of Expert Opinion Evidence in Canada: J.-L.J.

• This case also dealt with psychiatric evidence that was considered “novel scientific evidence”. In addressing, it, the Court appears to have added criteria to consider: R. v. J.-L.J., [2000] 2 SCR 600

• The Court considered the following seven criteria:– Subject Matter of the Inquiry

• “[t]he subject-matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge”

– Novel science or technique• In summary, therefore, it appears from the foregoing that expert evidence which advances a novel scientific theory or technique is

subjected to special scrutiny to determine whether it meets a basic threshold of reliability and whether it is essential in the sense that the trier of fact will be unable to come to a satisfactory conclusion without the assistance of the expert.

– Approaching the Ultimate Issue• The closeness of his opinion to the ultimate issue is another reason for special scrutiny

– Absence of Exclusionary Rule– Properly Qualified Expert– Relevance

• Whether considered as an aspect of relevance or a general exclusionary rule, “[t]he reliability versus effect factor has special significance in assessing the admissibility of expert evidence”

– Necessity• The purpose of expert evidence is thus to assist the trier of fact by providing special knowledge that the ordinary person would not

know. Its purpose is not to substitute the expert for the trier of fact. What is asked of the trier of fact is an act of informed judgment, not an act of faith.

Reform Efforts in Ontario• There has rarely been a time when the Courts have not been “fixing” the law around

expert opinion evidence – it is an area of law that imposes a distinct set of challenges:• Encroaches upon the fact-finding process – traditionally subject to exclusion• Can be a platform for controversial new (or junk) science • Can layer on unnecessary complexity• Can favour wealthy, institutional parties

• “Faced with an expert’s impressive credentials and mastery of scientific jargon, jurors are more likely to abdicate their role as fact-finders and simply attorn to the opinion of the expert in their desire to reach a just result. (D.(D.), 2000 SCC 43 (CanLII)

• Concerns that civil litigation was becoming a platform for trial by partisan experts whose opinions have been tailored to meet the exigencies of the case and the needs of the parties have produced some reforms: Civil Justice Reform Project.

• In the criminal context there are concerns that these issues are linked to the possibility of wrongful convictions: Kaufmann Commission on Proceedings Involving Guy Paul Morin and Inquiry into Pediatric Forensic Pathology in Ontario.

• In litigation more broadly, there are concerns that these issues work to obscure the relevant issues from the triers of fact and contribute to the ever-increasing costs of going to court.

Civil Justice Reform Project• In the context of looking at the whole civil litigation project in Ontario, Justice Osborne also

addressed the issues with Expert Opinion Evidence in Ontario. • He noted that the three primary issues relating to expert evidence are:

– The proliferation of experts and expert bias– The timeliness of reports– The disclosure of the basis of the opinion

• Osborne made the following recommendations:– The use of single experts should be encouraged but not mandated– The Rules should require pre-trial and case management judges to address the quantum of experts

and the admissibility of their evidence– The Rules should recognize the expert’s duty is to the court– In appropriate cases, judges should order experts to meet and confer prior to the trial to discuss,

clarify and resolve issues of disagreement and prepare a joint statement as to the areas of agreement and disagreement

– The Rules should have clear timelines for the production of reports– All reports shall include the instructions received, the nature of the opinion being sought, a

description of research and factual assumptions, the opinion and basis for the opinion.• The Report resulted in numerous changes including Rule 53

Inquiry into Pediatric Forensic Pathology in Ontario (the Goudge Report)

• In 2007, the inquiry was called to investigate a number of cases where Dr. Charles Smith had provided forensic evidence as to cause of death or injury which had resulted in unnecessary prosecutions and wrongful convictions.

• In 2008, Goudge J.A. released his report which criticised, inter alia:– Dr. Smith’s view that he was supposed to be an advocate for the Crown and not a balanced,

objective scientist;– Dr. Smith’s practice of overstating his knowledge and expertise and testifying outside of his area of

expertise;• The Inquiry made a number of recommendations aimed at ensuring that the evidence of

forensic pathologists is clearly provided in a non-biased or partisan manner, subject to adequate scientific scrutiny, framed in manner that will avoid commenting on the legal issue at stake in the trial, and any controversial or novel scientific issue identified clearly.

• The Inquiry also called upon courts to:– Clearly define the subject matter of expert evidence;– Be vigilant in exercising gatekeeper role through the Mohan reliability analysis;– Create a Code of Conduct for experts clearly identifying their duty to assist the court as trumping

any obligation to the party that called them;– Encourage experts to meet beforehand to discuss and clarify their differences.

Moore v. Getahun 2015 ONCA 55 (CanLII) (14 January 2015)

• The Court of Appeal was asked to review whether a trial judge erred in ruling that it was improper for counsel to assist experts in the preparation of their reports.

• The trial judge was clearly frustrated with counsel’s tactical use of experts. She was trying to rely on the expert evidence tendered without having to worry about partiality or bias. It was in this context that she objected to what she saw as counsel shaping the evidence of one of the experts through reviewing drafts and meeting with him.

• Sharpe J.A. referred to the trial judge’s criticism of counsel in this respect as being “unwarranted”. He also stated that while it would be wrong for counsel to interfere with an expert’s “ independence and objectivity,” consultation is not just permitted but valuable:

[… 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. 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.

Westerhof v. Gee Estate, 2015 ONCA 206 (CanLII) (26 March 2015)

• At trial, the judge ruled inadmissible the opinion evidence of medical practitioners who had provided treatment on the grounds that their evidence had not complied with rules 4.1.01 and 53.03 of the Rules of Civil Procedure. This was upheld by the Divisional Court.

• The question before the Court of Appeal can be distilled down to: Can a court canvass an opinion from an expert witness who is qualified but has not been offered by the parties as an expert witness? The Court of Appeal overturned the lower court’s decision and ruled that “non-party” or “participant” experts may give opinion evidence without having to comply with the Rules.

• The court noted that the purpose of the rules – which were modified in 2010 to address the concerns about the proliferation of “hired gun” experts in response to Justice Osborne’s report on the Civil Justice Reform Project – was to attempt to ensure that experts called by a party were aware of – and their evidence complied with – their duties of fairness and impartiality. But the common law has long recognised that it is within an adjudicator’s discretion to obtain opinion evidence from witnesses testifying as non-expert witnesses – i.e. testifying to facts they observed or witnessed – if those witnesses (and their evidence) otherwise met the test for admission.

Westerhof v. Gee Estate, 2015 ONCA 206 (CanLII) (26 March 2015)

• Simmons J.A. writes:I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where:

– the opinion to be given is based on the witness’s observation of or participation in the events at issue; and

– the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

Such witnesses have sometimes been referred to as “fact witnesses” because their evidence is derived from their observations of or involvement in the underlying facts. Yet, describing such witnesses as “fact witness” risks confusion because the term “fact witness” does not make clear whether the witness’s evidence must relate solely to their observations of the underlying facts or whether they may give opinion evidence admissible for its truth. I have therefore referred to such witnesses as “participant experts”.

• The adjudicator then is empowered to qualify some witnesses as experts notwithstanding they have not been called by a party. The rationale is fairly clear: a rule protecting against the proliferation of “hired guns” whose evidence might complicate the proceedings should not be used as a bar to hearing from experts who are clearly independent and impartial in the case and whose opinion would assist the adjudicator.

White Burgess Langille Inman v. Abbot and Haliburton Co. 2015 SCC 23 (CanLII) (Released 30 April 2015)

• In this case a trial judge in Nova Scotia excluded an expert’s affidavit on the grounds that she did not “appear” to be independent and impartial.

• At issue for the Supreme Court was whether there was indeed an exclusionary rule in respect of expert evidence on the grounds of an appearance of a lack of impartiality. The court held that while there was an exclusionary rule, it should be narrowly applied and it was not a question of appearance – the expert must be incapable of giving an impartial opinion

• In getting to its decision on the issue of impartiality, Cromwell J. lays a two-pronged test for the admissibility of expert evidence:

At the first step, the proponent of the evidence must establish the threshold requirements of admissibility. These are the four Mohan factors (relevance, necessity, absence of an exclusionary rule and a properly qualified expert) and in addition, in the case of an opinion based on novel or contested science or science used for a novel purpose, the reliability of the underlying science for that purpose…At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks...

White Burgess Langille Inman v. Abbot and Haliburton Co. 2015 SCC 23 (CanLII) (Released 30 April 2015)

• With respect to the issue of impartiality, Cromwell J. says that the consideration should take place as part of the inquiry into whether the witness in question is a “qualified expert” and exclusion will be rare:

… it will likely be quite rare that a proposed expert’s evidence would be ruled inadmissible for failing to meet it. The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court.

• The court is also clear that the test not an “apprehension of partiality” test but requires an analysis of both the fact of any partiality and the degree to which it might affect the witness’s ability to give independent evidence.

When looking at an expert’s interest or relationship with a party, the question is not whether a reasonable observer would think that the expert is not independent. The question is whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance.

• Partiality cannot be assumed from the mere fact of an employment or commercial relationship between the witness and a party. What is required is a direct financial interest, a familial relationship or some other discrete interest that makes the witness “unable or unwilling to provide the court with fair, objective and non-partisan evidence”.

• But, to complicate matters, the issue of impartiality does not end there. Where there is evidence of a relationship or other factor that falls short of the high threshold for exclusion, the adjudicator must still consider the issue of possible partiality as part of the second part of the test outlined above, i.e. the weighing of the potential risks and benefits of admitting the evidence.

A Return to First Principles?• There is much language in all three decisions that suggests the issue of

expert opinion evidence is being addressed via a return to first principles.• This raises the issue of how effective the reforms can be – it was the

development of the common law that ushered in the proliferation of experts in the first place.

• It is still early, and courts are using the new jurisprudence to frame their approach to expert opinion evidence but the law remains much as was described by a leading text :

“The field of matters requiring expert assistance is in a state of continual flux. In each case the trial judge must determine whether the subject matter of the opinion necessitates comprehension beyond the level of the common person. Some areas are obvious. “(Sopinka, Lederman and Bryant, The Law of Evidence in Canada , 3rd ed., 2009)

• Nothing in the case law suggests that the issues associated with the use of expert opinion evidence is likely to change.

Expert Opinion Evidence in an Administrative Law Context

• The way that many tribunals deal with expert opinion evidence reflects the larger challenges with administrative justice as an effective, efficient, and accessible alternative to courts.

• Many tribunals operate their process and approach to evidence as if they were bound by the same rules that govern courts.

• This deeply ingrained view can be seen in many decisions of both Courts and Tribunals:“There is no reason to think that … an administrative tribunal should not conform with the law that governs the courts.”

(Ontario v. Ontario Public Service Employees Union (OPSEU) (1990), 37 O.A.C. 218)

Expert Opinion Evidence in an Administrative Law Context

• Wide variety of practice but generally tribunals continue to admit expert evidence along Mohan lines heavily influenced by Court rules of practice.

• Some recent cases using a Mohan analysis:– Expert opinion evidence on the characteristics of temporary foreign worker programs in Canada and the vulnerability

of migrant workers particularly women: O.P.T. v. Presteve Foods Ltd., 2015 HRTO 675 (CanLII)– Expert opinion evidence on restrictive covenants: Reid’s Heritage Homes Limited v. Guelph (City), 2015 CanLII 53450

(ON OMB)– Expert opinion evidence on the health effects of Wind Turbines from non-experts was struck: SR Opposition Corp. v

Ontario (Environment and Climate Change), 2015 CanLII 59645 (ON ERT)– Expert opinion evidence on the lived experience of individuals with anxiety-based mental illness allowed: L.B. v.

Toronto District School Board, 2015 HRTO 148 (CanLII)– Expert opinion evidence on air conditioning and effects of filters on the passage of dog dander through filters not

allowed: TNL-51096-13 (Re), 2014 CanLII 28553 (ON LTB)

• Without commenting on the validity of the proposed evidence – each of the above cases raises issues about access to justice and the effective use of adjudicative resources.– Requiring a Mohan analysis favours institutional and well-resourced parties who can better afford professional experts

and the legal resources to make arguments about admissibility.– Leaves self-represented or under-resourced parties at a disadvantage.

• Also, there is a proliferation of qualifying experts in dubious areas of expertise, on matters that could be addressed by factual evidence, on matters close to the ultimate issue and where the expert has a close professional relationship with a party.

Flexibility of the Rules of Evidence and Procedure

“Parliament has seen fit to give administrative tribunals very wide latitude when they are called on to hear and admit evidence so they will not be paralyzed by objections and procedural manoeuvres. This makes it possible to hold a less formal hearing in which all the relevant points may be put to the tribunal for expeditious review:” Rhéaume v. Canada (Attorney General) 2002 FCT 98

“They were expressly created as independent bodies for the purpose of being an alternative to the judicial process, including its procedural panoplies. Designed to be less cumbersome, less expensive, less formal, and less delayed, these impartial decision-making bodies were to resolve disputes in their area of specialization more expeditiously and more accessibly, but not less effectively or credible…”: Rasanen v. Rosemont Instruments Limited (1994), 17 O.R. (3d.) 267

“This relaxation of the rules of evidence is not unique to the Tribunal or to the application of the Charter; it can in fact be found in the enabling legislation of other quasi-judicial tribunals. This choice can be explained by a legislative intent to favour the resolution of certain types of disputes in a more expeditious and less costly manner, and in more accessible and less formalistic forums in which plaintiffs are often not represented by counsel…Subject to the principles of natural justice and to the specific rules set out in their enabling legislation, administrative tribunals therefore have full authority over their procedure and over the admission of evidence:… Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), [2015] S.C.J. No. 39

Flexibility of the Rules of Evidence and Procedure

“The Board is not bound by the ordinary rules of evidence. In deciding upon questions of fact, it must inevitably draw upon its experience in respect of the matters in the vast number of cases which come before it as well as upon the experience of its technical advisers. Thus, the Board may be in a position in passing upon questions of fact in the course of dealing with, for example, an administrative matter, to act with a sure judgment on facts and circumstances which to a tribunal not possessing the Board's equipment and advantages might yield only a vague or ambiguous impression”: Canadian National Railways Co. v. Bell Telephone Co. of Canada, [1939] S.C.R. 308

“As a general rule, strict rules of evidence do not apply to administrative tribunals, unless expressly prescribed…. While rules relating to the inadmissibility of evidence (such as the Mohan test) in a court of law are generally fixed and formal, an administrative tribunal is seldom, if ever, required to apply those strict rules: Practice and Procedure before Administrative Tribunals at 17-11. "Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law": T.A. Miller Ltd. v. Minister of Housing and Local Government… This general rule applies even in the absence of a specific legislative direction to that effect. While many statutes stipulate that a particular tribunal is not constrained by the rules of evidence applicable to courts of civil and criminal jurisdiction, "these various provisions do not however alter the common law; rather they reflect the common law position: in general, the normal rules of evidence do not apply to administrative tribunals and agencies": Administrative Law, supra, at 279-80”: Alberta (Workers' Compensation Board) v. Appeals Commission, [2005] A.J. No. 1012 (Alta C.A.)

The Statutory Powers Procedure Act

• The SPPA gives a lot of leeway to tribunals to admit evidence:15 (1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,(a) any oral testimony; and(b) any document or other thing,relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.

• The only exclusionary rules are privilege and the dictates of the home statute:(2)Nothing is admissible in evidence at a hearing,(a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or(b) that is inadmissible by the statute under which the proceeding arises or any other statute.

• Section 15 of the SPPA raises the issue of the applicability of Mohan and the whole body of civil and criminal case law, the Rules of Procedure and the practice in the Courts.

• The focus is on relevance and weight.• While some of the principles in the case law are relevant, tribunals are free to consider

how to address opinion evidence – whether lay or expert – as they see fit.• Some adjudicators have explored these issues but there is a reluctance to leave the

Mohan framework behind.

Admissibility of Expert Opinion Evidence before Administrative Tribunals

“Since I am not bound by the formal rules of evidence applied in the criminal law context, I have also taken note of principles developed in human rights proceedings in particular…In my view while the standard remains “necessity”, the assessment of “necessity” is somewhat lower in the context of a human rights hearing than in the context of a criminal proceeding. The “necessity” requirement must take into account the nature of human rights hearings and the often subtle nature of discrimination… I find the proposed evidence to be relevant and necessary using the less strict standard ” (Nassiah v. Peel Regional Police Services Board, 2006 HRTO 19 (CanLii)

Admissibility of Expert Opinion Evidence before Administrative Tribunals

“The respondent submitted that Dr. Conlon does not meet the test in R. v. Mohan. The respondent argued that two of the four criteria were not met: that his expert evidence was not necessary in assisting the Board with fee code interpretation, and that Dr. Conlon is not properly qualified as an expert in the interpretation of the Schedule Benefits. The Board agrees with the respondent that Dr. Conlon is not properly qualified as an expert on the interpretation of the Schedule of Benefits. However, the Board finds that Dr. Conlon’s evidence is admissible, relevant and useful and considered his testimony as a lay witness…. He provided evidence on behalf of Dr. Mayer concerning the development of fee codes …, the use of these codes and provided his opinion with respect to Dr. Mayer’s billing practice …. The Board found Dr. Conlon’s evidence to be clear, logical, informative and persuasive.”: Mayer v Ontario (Health Insurance Plan), 2013 CanLII 23291 (ON PPRB)

Admissibility of Expert Opinion Evidence before Administrative Tribunals

“However, the Panel also accepts the submissions of Counsel for the Tribunal Counsel Office that expert evidence, i.e., the opinion of a qualified person, is admissible only when the expert is providing evidence of a technical nature that is beyond the experience and knowledge of the Panel. The Panel notes that in this appeal – as with most appeals that are adjudicated by this Tribunal – the Panel is presented with numerous medical reports that it must assess. This medical documentation also includes several reports of Dr. Klassen which provided details of his examination, diagnosis and treatment of the worker. The Panel finds that it does not require Dr. Klassen to provide his expert opinion as to the meaning of this medical documentation. To allow him to do so would, in our view, permit him to usurp the fact finding role of the Panel.” (Decision No. 858/13I2, 2014 ONWSIAT 1105 (CanLII))

Admissibility of Expert Opinion Evidence before Administrative Tribunals

“Section 131 …gives the Tribunal the power to determine its own practice and procedure…. Further, section 132 explicitly states that the Tribunal can accept any oral or written evidence that it considers proper, regardless of whether the evidence would be admissible in a court. Accordingly, the strict rules of evidence that apply to a Court do not apply to the Tribunal, and the Tribunal can follow its own process in determining whether to admit expert evidence. Nonetheless, when determining whether to admit expert evidence, the Tribunal has considered the principles that have been advanced in leading Court judgments.” (Decision No. 1748/13I, 2014 ONWSIAT 2593 (CanLII))

Admissibility of Expert Opinion Evidence before Administrative Tribunals

“This proceeding also raises the issue of the utility of opinion evidence in a grievance arbitration proceeding. Neither party called expert evidence qualified as such. However, witnesses for both parties provided opinion evidence based on their experience. The general litigation rule is that a witness is confined to testifying about relevant facts as he perceives them. Unless qualified as an expert a witness is generally not permitted to offer opinion evidence with respect to other than matters of common knowledge or experience… Expert opinion evidence is received as an exception to this rule against opinion evidence. An expert witness is a person who is presented as a specialist qualified by training or special knowledge in a subject, often technical, who may present expert opinion without having been a witness to the occurrence(s) in issue in the proceeding. Notwithstanding the general litigation rule against non-expert opinion evidence grievance arbitrators often admit non-expert experience evidence in the exercise of their discretion under… which gives an arbitrator the power to accept such oral or written evidence as the arbitrator considers proper, whether or such evidence would be admissible in Court). The weight given such evidence depends of its perceived reliability in the circumstances of the particular proceeding. There was no objection to the opinion evidence offered in this case, and I considered it appropriate to admit the parties’ experience-based opinion evidence without comment at the time, but subject to the usual considerations of credibility, reliability, and weight.” Sudbury Integrated Nickel Operations v Sudbury Mine, Mill & Smelter Workers’ Union Unifor, Local 598, 2015 CanLII 32018 (ON LA)

A New Paradigm?• Following the common law rules of evidence is unlikely to allow

tribunals to address the issue of expert opinion evidence any differently.• This approach imports the whole of the problem with the proliferation of experts

into the administrative justice context.• Creates a heavily legalistic environment.

• Tribunals have an obligation to be true to their statutory mandate and the larger issues of public policy behind their establishment.

• Considerations of accountability, efficiency, effectiveness, accessibility should be addressed.

• Can’t expect the common law to change quickly (or at all) – tribunals have that ability however.

Considerations for a New Approach• Opinion evidence is permissible in administrative tribunals – there is no exclusionary rule.• Relevance should be the driving factor for its admission.

– While this will vary from case to case, it is a broad lens and will probably let more evidence in– This has to be balanced with other concerns about efficiency.

• Erring on the side of admissibility of opinion evidence can be addressed with considerations of the weight of the evidence.– “People were formerly frightened out of their wits about admitting evidence lest juries should go

wrong. In modern times we admit the evidence and discuss its weight.” R. v. Birmingham Overseers (1861) 1 B&S 763 (Cockburn CJ)

• Avoid designating a witness as an expert unless absolutely necessary:– As opinion evidence is permissible there is no need to qualify a party as an expert to get around a common law

exclusionary rule;– This is especially important where the witness has a professional relationship with a party, the scope of the science

of the opinion is hard to pin down and the matter relates to the ultimate issue.

• Avoid unnecessary legal argument re Mohan and related criteria (especially expert’s qualifications) and focus on weight of evidence.– In many cases the issue of qualifications., expertise and methodology will be relevant to weight.– This is also the best way to address issues of bias or usurpation.

Considerations for a New Approach• Active adjudication through case conferencing and the use of procedural orders

can buttress this approach:– The parties will not always be entitled to the same rights to call witnesses as they would

in civil or criminal litigation;– Tribunals can restrict the evidence called on the basis of relevance and repetition

without impairing procedural fairness – requires a case by case analysis;– Case conference approach can manage expectations

• In cases where expert opinion evidence is considered necessary because of the nature of the hearing or the matters in issue:– Clear rules re: qualification and role of expert

• See ERT and OMB Rules.– Use of single expert where possible– Use of panels as appropriate– Require pre-hearing meetings between experts and joint statements re: agreement and

disagreement– Consider accessibility issues – administrative justice is a public service and not a place

only for lawyers.