As part two of my earlier blog on the issue of expert witnesses at trial, Bruff-Murphy v. Gunawardena, 2017 ONCA 502, is a great read for the Court of Appeal’s view on the role of the trial judge during expert testimony.
In the introduction alone, Justice Hourigan was clear that “gone are the days when an expert served as a hired gun or advocate” (para. 1) and that it is the trial judge’s role to act as a gatekeeper so that the expert opinion evidence before the court is “fair, objective and non-partisan” (para. 2).
While my earlier blog focused on the legal test during the qualification stage, Justice Hourigan was also clear that the trial judge does not become functus the moment an expert witness is permitted to give expert opinion evidence. Rather,
“The trial judge must continue to exercise her gatekeeper function. After all, the concerns about the impact of a non-independent expert witness on the jury have not been eliminated. To the contrary, they have come to fruition. At that stage, when the trial judge recognizes the acute risk to trial fairness, she must take action” (para. 63).”
In this case, Justice Hourigan commented that there were various options available to the trial judge after the qualification stage, which trial counsel should also be aware of as suggestions in their toolkit. To quote Justice Hourigan at paragraphs 67 and 68 of this decision,
 Given this ongoing gatekeeper discretion, the question remains of what, as a practical matter, the trial judge could or should have done in this case. His first option would have been to advise counsel that he was going to give either a mid-trial or final instruction that Dr. Bail’s testimony would be excluded in whole or in part from the evidence. Had he taken that route, he would have received submissions from counsel in the absence of the jury and proceeded as he saw fit. Alternately, he could have asked for submissions from counsel on a mistrial, again in the absence of the jury, and ruled accordingly. In the event that he had to interrupt Dr. Bail’s testimony mid-trial, he would have had to consider carefully how best to minimize the potential prejudicial effect of the interruption from the respondent’s perspective.
 The point is that the trial judge was not powerless and should have taken action. The dangers of admitting expert evidence suggest a need for a trial judge to exercise prudence in excluding the testimony of an expert who lacks impartiality before those dangers manifest.
Thanks for reading this week!
Taking the risk to litigate through to a trial is a decision that should be made after long and earnest consideration. It is a gamble, no matter the strength of your case. The stakes and the pressure are high, which is why receiving a decision denying your claim can be crushing, both emotionally and financially. Moreover, the question of costs must be faced.
In Driscoll v Driscoll, the Court addresses costs in a set of unfortunate circumstances. The facts in brief are that Shirley Driscoll died leaving one son, five daughters and the children of two other daughters that had predeceased. Ms. Driscoll’s Will, made several years prior, gifted everything to her son. Three of the daughters objected to the validity of the Will. Offers were exchanged, but no settlement was reached.
At trial Rutherford J. found that Ms. Driscoll had the requisite testamentary capacity to make the Will. However, His Honour admittedly reached that conclusion with some difficulty, in view of the evidence of Ms. Driscoll’s cognitive deficits and because the effect of the Will was unfair to the daughters.
The son sought costs as against his sisters (approx. $150,000). The sisters argued that they acted reasonably throughout the litigation, had a reliable body of evidence in support of their position, and were of modest means and should not be defeated by the award sought by their brother. They asked for their disbursement costs plus their costs of a motion brought within the litigation (approx. $50,000), to be paid out of the estate, with the parties otherwise bearing their own costs.
Rutherford J. considered the two public policy considerations laid down in McDougald Estate v. Gooderham meriting costs being paid out of the estate, being (1) where difficulties or ambiguities that give rise to litigation are caused, in whole or in part, by the testator, and (2) the need to ensure that estates are properly administered.
His Honour determined that the first consideration was triggered by Ms. Driscoll not gifting anything to her seven daughters and, more concretely, the second consideration was triggered by the strength of the case against testamentary capacity. Accordingly, His Honour exercised his discretion to grant the relief sought by the sisters, and awarded the brother full indemnity costs out of the estate as well.
This must have been an important victory for the sisters in an otherwise unsuccessful outcome, and should serve as a sobering reminder for litigants that winning doesn’t guarantee costs recovery against the opposing side.
Thanks for reading and have a great long-weekend. Happy 150th birthday Canada!
Other blog posts that may be of interest: