Article by: Vincent Rochon, P.Eng and Co-CEO.
Independent and Impartial or Biased?
The new Rules of Civil Procedure came out approximately 8 years ago and they included Rule 53.03, “Acknowledgement of Experts Duty” (Form 53). I have found the Rule 53.03 has made a difference when judges consider whether an expert is independent and impartial. I get called as an expert witness often and I have noticed that judges treat expert testimony differently now. Judges pay more attention to expert witness testimony and they are more willing to write judgements that clearly describe why they accepted the evidence of one expert versus another. If you take the time to review the judgements posted on my web site (roarengineering.com, and look under the tab Court Cases), you will see a difference in the focus of judgements pre versus post Rule 53.03.
An expert witness owes a duty to the Court to provide opinion evidence that is fair, objective and non-partisan (an expert’s obligation). Justice Raikes’ decision (St Clair Boating v. Michigan Electric, 2017 ONSC 23) states that an expert’s “duty to the Court overrides any obligation owed by an expert to a party”. So, this may be a hurdle to overcome for an expert whose weekly paycheck is issued by an adjusting firm or an insurance company. In this same decision, Justice Raikes states that “if the court concludes that the witness is unwilling or incapable of fulfilling that obligation, the evidence must be excluded”. The point is that I was the subject of a ‘nasty’ and expensive motion, in part, because my former company was owned by a large adjusting company. Roar Engineering is independent and impartial and, as a result, Justice Raikes ruled that my evidence is admissible.
How has Rule 53.03 changed the way that Counsel can “attack” an expert? I have found that many experts fail to demonstrate to the Court that they are impartial. As soon as an expert crosses the line and assumes the role of an advocate, their evidence becomes tainted with bias. So, it is important to pick an expert that can support an opinion with clear and consistent evidence; even under intense cross-examination. An expert‘s analysis must be thorough and comprehensive in order to be prepared for the ‘not so pretty’ challenges that arise during legal proceedings. Even Justice Raikes acknowledged the challenges that faced me when he stated that he “reviewed and considered the cross-examination of Rochon which was, to put it mildly, fulsome and aggressive.” If you choose an expert that cannot support even the smallest foundational elements of their analysis and opinion, chances are, they will not survive cross-examination. Investing in a case that has no chance of success is bad business, so chose your expert wisely and do a bit of research to find out how your expert has fared under intense cross-examination.