The Ontario Court of Appeal in its recent decision in R v. Hason, ordered a new sentencing hearing after discovering that the expert opinion relied upon in the original sentencing order, had been found unreliable in a different proceeding. Although this decision pertains to a criminal matter, it offers valuable insights for all litigators who depend on expert opinions in their cases and sets out an example for the degree of scrutiny and diligence the experts are expected to exercise.
In R v. Hason, after the oral hearing, the Court of Appeal learned of a case, being R. V. Nettlelton that was decided after the trial judge’s decision in which the reliability of the same expert whose opinion was central in the decision of the trial judge in R v. Hason was challenged. The expert had admittedly copy-pasted some inaccurate content concerning a different person into the analysis section of his report and had not noticed this error when he reviewed it. According to the Court of Appeal, the expert’s testimony where he admitted to treating significant parts of his reports as “boilerplate” and acknowledged carelessness in their preparation revealed a specific pattern of carelessness. The Court of Appeal distinguished that pattern of careless conduct with case specific errors, and ultimately decided that such a specific pattern of careless conduct may be relevant to the expert’s quality of performance in a given case.
This decision serves as an important reminder for all of us to be mindful of the significance of providing individualized advice to clients and to be cautious when using boilerplate or precedent paragraphs. Counsel should also critically evaluate the expert opinions they rely on, not only to identify potential errors but also to examine the expert’s prior practices, especially if their reliability has been questioned in past cases.
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