Tag: expert evidence
In wills, trusts, and estates litigation, much hinges upon expert evidence. In a will challenge that is based upon alleged testamentary incapacity, both the objector and propounder of the will would be prudent to enlist a capacity assessor. A party suspicious of undue influence may wish to consult a physician, a police officer, or some other party who could be privy to abuse. In a contested passing of accounts, an expert investor can speak to the soundness of a trustee’s investments.
Though in theory expert evidence should clarify the points of contention, in practice it can sometimes render matters murkier and more uncertain. For instance, what happens if two equally distinguished handwriting experts draw opposite conclusions? What if a coroner’s findings contradict the preponderance of other evidence?
Another concern is experts’ impartiality, as evidenced by Wilton v. Koestlmaier, wherein one party unsuccessfully charged an expert witness with advocating for the other side. Courts have long been apprehensive that some experts may (perhaps unwittingly) be kinder with the parties with whom they interact and from whom they collect their bills. In 1873, Sir George Jessel, M.R., wrote:
“There is a natural bias to do something serviceable for those who employ you and adequately remunerate you. It is very natural, and it is so effectual, that we constantly see persons, instead of considering themselves witnesses, rather consider themselves as the paid agents of the person who employs them.”
One possible fix for this source of apprehension is to have both parties deal with the same expert. At the very least, litigators should not employ the same expert to too great an extent, which might appear as a “red flag”.
Courts have also looked into the timing for delivery of expert reports. The Rules of Civil Procedure prescribe that expert reports are served no less than 90 days before the pre-trial conference (or 60 days for responding parties’ reports). Oftentimes, however, parties should exchange their reports well before these deadlines, for once parties receive these reports, they have a much better idea of the relative strength of their positions, which may steer them towards settlement. In Ismail v. Ismail, Grace J. spoke to this:
“How can the parties’ lawyers advise their clients concerning settlement without knowing their case and the one they must meet? How can the parties make informed decisions?”
Too many experts can increase costs exponentially (especially if the experts are famous or from faraway places), but too few experts could lead to a scantiness of evidence. As a nice medium, the Australians have come up with the practice of “hot tubbing” experts—which, despite its fun name, does not involve splashing, shouting, or the unusual combination of horn-rimmed spectacles with bathing suits. Rather, “hot tubbing” refers to having a panel of experts questioned together, which can allow for an identification of the points of agreement and disagreement and more lively discussion.
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Suzana Popovic-Montag and Devin McMurtry
The Ontario Superior Court of Justice recently made an important ruling on a voir dire in respect of Dr. Kenneth Shulman’s proposed expert testimony.
This ruling will be of particular interest to estate litigators as it addresses the inherent admissibility of retrospective capacity assessments, amongst other things.
The Court in this instance implemented a form of blended voir dire, wherein Dr. Shulman’s evidence would be received in its entirety and submissions would be made on the issue of admissibility of the expert testimony. In the event that the Court ruled that Dr. Shulman’s evidence was admissible, the evidence obtained during the voir dire would be incorporated as part of the trial record.
The Defendant, amongst other objections, took issue with Dr. Shulman’s testimony on the basis that his testimony was based on a retrospective capacity assessment which was problematic for the following reasons:
- The proposed opinion was based on hearsay evidence and must therefore be excluded; and
- Expert opinion evidence on retrospective testamentary capacity assessments constitutes novel or contested science and is therefore not reliable.
The Court did not accept that Dr. Shulman’s use of certain evidence that has not been proven, and has not been relied upon him for the truth of its contents, prevents the Court from admitting his expert opinion evidence at the threshold admissibility stage. In other words, any such issues could be addressed in reference to the weight of the proposed evidence.
Most interestingly, however, the Court noted that many of the types of medical and psychiatric opinions offered at trial are retrospective in nature and did not agree that retrospective capacity assessments are novel in Ontario courts. The Court specifically noted that the Defendant was unable to identify a single case, since retrospective testamentary capacity assessments were first considered by the courts, in which psychiatric expert opinion of retrospective testamentary capacity assessment has been ruled inadmissible.
In applying the admissibility test established in R v Abbey 2017 ONCA 640, the Court held that Dr. Shulman’s expert opinion satisfied the threshold requirement in the first step. In weighing the cost versus benefit of admitting Dr. Shulman’s report, the Court found that the evidence favoured the admission of Dr. Shulman’s evidence.
The Court made a ruling admitting Dr. Shulman as an expert geriatric psychiatrist to provide expert opinion evidence in the areas of geriatric psychiatry and retrospective testamentary capacity assessment.
This is an important ruling in the context of estate litigation given that in most instances, the capacity assessments that are usually relied on in the course of litigation are of a retrospective nature, since the subject of the assessment is most often deceased.
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In today’s podcast, Natalia Angelini and Kira Domratchev discuss the Ontario Court of Appeal decision of Dujardin v Dujardin, 2018 ONCA 597, and the admissibility of an expert’s evidence with respect to the deceased’s capacity.
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The Court of Appeal recently released a decision on the role of expert witnesses and the role of the trial judge as gatekeepers of such evidence.
In Bruff-Murphy v. Gunawardena, 2017 ONCA 502, the Court of Appeal considered an appeal from a car accident case. Bruff-Murphy, the appellant, claimed that she suffered physical and mental injuries as a result of a car accident caused by Gunawardena. Gunawardena admitted liability and a 23-day jury trial occurred to determine Bruff-Murphy’s damages. At trial, the jury awarded Bruff-Murphy $23,500.00 in general damages. On appeal, Justices Lauwers, Hourigan, and Benotto overturned the trial decision and ordered a new trial because “the defence proffered the evidence of a wholly unsuitable expert witness” (para. 72).
The expert at issue was a psychiatrist and he was the last witness in the defence’s case. In particular, his expert opinion was that the plaintiff did not develop any psychiatric disorders or limitations as a result of the accident. However, the methodology of his process and the tone of his expert report were found by the Court of Appeal to be more prejudicial than probative. The Court of Appeal was highly critical of how unfair it was for this expert to focus on the inconsistencies between the information that he received from the plaintiff though an interview and the information that he later discovered from reviewing the plaintiff’s medical records without putting these inconsistencies to the plaintiff and giving her the opportunity to explain. The overall tone of the expert report, where the expert went out of his way to make damaging comments to the plaintiff’s case, was also found to be reliable indicator of the expert’s testimony.
While the Court of Appeal appreciated that the trial judge correctly turned his mind to the four traditional criteria for the admissibility of expert evidence as established in R. v. Mohan, the trial judge was found to have erred for failing to weigh the prejudicial effect of this expert’s evidence against it’s probative value as the final step during the qualification stage.
To quote Justice Hourigan at paragraphs 35 and 36 of this decision, the test during the qualification stage is as follows,
 The first component requires the court to consider the four traditional “threshold requirements” for the admissibility of the evidence established in R. v. Mohan, 1994 CanLII 80 (SCC),  2 SCR 9: (i) relevance; (ii) necessity in assisting the trier of fact; (iii) absence of an exclusionary rule; and (iv) the need for the expert to be properly qualified.
 The second component is a “discretionary gatekeeping step” where “the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks”: para. 24. It is a cost-benefit analysis under which the court must determine whether the expert evidence should be admitted because its probative value outweighs its prejudicial effect.
For those who are interested in the topic of admissibility of expert evidence, click here for the Supreme Court of Canada decision in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23.
Thanks for reading and stayed tuned for my blog later this week on the trial judge’s gatekeeper role after the qualification stage.