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SUPREME COURT OF PRINCE EDWARD ISLAND

Citation: MacWilliams v Connors 2014 PESC 12

Date: April 11, 2014

Docket: S1-GS-20760

Registry: Charlottetown

Between:

Pauline MacWilliams

Applicant

And:

Dr. Shelagh Connors

Respondent

Before: The Honourable Justice Benjamin B. Taylor

Appearances:

Douglas R. Drysdale, Q.C. representing the Plaintiff

James W. Gormley, Q.C. representing the Defendant

Place and Date of Hearing Charlottetown, Prince Edward Island

September 26, 2013

Place and Date of Decision Charlottetown, Prince Edward Island

April 11, 2014

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AREA OF LAW - Practice - Motion to disqualify proposed expert witness - assertion

of personal conflict between opposing expert witnesses - assertion of personal

relationship between defendant and proposed expert - bias of expert.

CASES CITED: R v Marquard, [1993] 4 S.C.R. 223 (S.C.C.), National Justice

Compania Naviera S.A. v. Prudential Assurance Co. Ltd. (“The Ikarian

Reefer”) [ 1993] 2 Lloyd’s Rep. 68 (Q.B.), Abbott and Haliburton Co. Ltd. v White

Burgess Langille Inman (c.o.b WBLI Chartered Accountants), [2013] N.S.J., No.

259 (NSCA), 115465 Alberta Ltd. vs Adwood Manufacturing Ltd., 2010 ABQB

133

AUTHORITIES REFERRED TO: 4.1.01(1) and Form 53E of Rules of Civil

Procedure

PUBLICATIONS: Policy Statement, “The Physical Expert in Legal Proceedings, The

Society of Obstetricians and Gynaecology of Canada [SOGC] October 2006 ,

Mewett and Sankoff, Witnesses, Carswell, Toronto, 1991 (Updated to November,

2013), Cudmore, Gordon, Civil Evidence Handbook, Thomson Reuters Canada

Limited, Toronto 1994 (Updated to March 10, 2014) Vol. 2, Webster’s New

Collegiate Dictionary.

Taylor J.:

Introduction

[1] This decision follows a motion by the Plaintiff to disqualify Dr. F., as the

proposed medical expert witness for the Defendant, from testifying at the trial of the

Plaintiff’s lawsuit against the Defendant doctor, a lawsuit based on a claim of medical

malpractice. The motion raises two issues:

1) It is asserted there is an unresolved dispute - which has nothing to do with

this case - between Dr. F., and Dr. G., the proposed medical expert witness for the

Plaintiff. The two doctors practice at a hospital in Halifax, Nova Scotia and Dr. G.

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fears if she testifies she will suffer negative employment consequences because of

actions by Dr. F. - he allegedly has the position and the ability to make decisions

which could negatively affect her work in the short term and her career in the long

term. The Plaintiff seeks Dr. F. be disqualified from testifying as an expert, otherwise,

Dr. G. will not testify; and

2) It is asserted there is a personal relationship between Dr. F. and the

Defendant doctor, and because of that relationship, Dr. F. is biased and partisan

towards the Defendant and should be disqualified from giving expert opinion

evidence in this case.

[2] For the reasons set out hereunder, I decline to grant the Plaintiff’s motion on

either ground. The Plaintiff’s motion is dismissed without costs to either party.

First Issue - conflict between Expert Witnesses

[3] I will do no examination, nor will I make any findings about the dispute between

Dr. G. and Dr. F. That is a matter which is entirely outside the bounds of the case in

this court. I will not speculate on what circumstances, if any, might cause a court to

strike an expert witness off the roster because of a personal dispute between experts

called on opposite sides of the case.

[4] As discussed below, the evidence of an expert who is biased or partisan in

his/her report, opinion or testimony may be given less or no weight, but there is no

bias or partisanship simply because experts on opposing sides of the case dislike or

have a conflict with each other. I suspect some degree of animosity is not uncommon

between expert witnesses on opposite sides of a case.

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[5] As to Dr. G.’s belief that Dr. F. will penalize her if she gives expert evidence in

favour of the Plaintiff, it seems to me if that really is so, then whether the court

disqualifies Dr. F. or not makes no difference - if Dr. G. testifies in favour of the

Plaintiff she will be penalized.

[6] In my view, it would be fundamentally wrong to allow an expert witness on one

side of a case to decide, or have a role in deciding, whether another expert witness

would be allowed to testify on the other side of the case. This is not a court which can

deal with or decide the dispute between the two experts. I decline to grant the

Plaintiff’s motion on this ground.

Second Issue - Disqualification by Motions Judge of Expert by reason of bias

[7] The Plaintiff asserts: 1) Dr. F. is biased towards the Defendant doctor by

reason of a personal relationship or association with her, and 2) Dr. F. shows his bias

in a statement Dr. F. makes in his expert report.

Evidence re: Personal Association

[8] At paragraph six of her affidavit dated May 6, 2013, the Plaintiff states her

claim of bias by reason of personal association is based on the examination for

discovery of Dr. Connors, and states:

6. ...

...a) Dr. Connors and Dr. F. have known each other since the mid-

1980s, which is approximately thirty years ago...;

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Page: 5 b) Dr. Connors and Dr. F. have maintained contact over the years

as physicians and have served as colleagues on the Council of the

Society of Obstetricians and Gynecologists of Canada, a national

society of gynecologists and obstetricians dedicated to education

and promoting good practice in the area of women’s health...

c) Dr. Connors and Dr. F. served together as co-chairs of the

Atlantic Section of the Society of Obstetricians and

Gynaecologists from 2000 to 2004, which included the time frame

when Dr. F. was involved in the professional dispute with Dr. G....;

d) Dr. Connors and Dr. F. are also both members of the Atlantic

Society of Obstetricians and Gynecologists and encountered each

other every two or three years at education sessions...;

e) Dr. Connors admitted during the examination that she had

established a personal as well as a professional relationship with

Dr. F. as a result of her encounters with him and she agreed that

he was a friend of hers...;

...

g) Dr. Connors was aware at the time that she co-chaired the

Atlantic Section of the Society of Obstetricians and Gynecologists

of Canada with Dr. F. that he was involved in a professional conflict

or disagreement with Dr. G. that resulted in them not being able to

work together....;

h) Dr. Connors was involved in the decision to retain Dr. F. as a

defence expert in this litigation...

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[9] In her affidavit dated January 18, 2013, Dr. Connors states at paragraph 12: “I

have no personal relationship with Dr. F.” Dr. Connors was not cross-examined at the

hearing of this motion.

[10] In an affidavit dated September 17, 2013, Dr. F. states, in part:

19. I have had a professional working relationship with Dr. Connors since

approximately the mid-1980s.

20. My relationship with Dr. Connors has been limited to professional

interactions in our respective practices and involvement in professional

organizations.

21. In 2000, Dr. Connors and I were both appointed to the Council for the

SOGC. We served on the SOGC Council from 2000 to 2004.

22. During our time on the SOGC Council, Dr. Connors and I had minimal

one-on-one contact. Our communication was limited to SOGC Council

meetings and annual meetings of the Atlantic Society of Obstetricians and

Gynecologists.

23. Today, my relationship with Dr. Connors is of a professional nature.

Any interaction with Dr. Connors outside of practice is limited to the annual

meeting of the Atlantic Society of Obstetricians and Gynecologists, which

provides an opportunity to socialize with other obstetricians and

gynecologists practising in Atlantic Canada.

24. I do not have a close personal relationship with Dr. Connors.

...

26. I am mindful that, as an expert witness, I owe a duty to the Court to

provide evidence that is fair, objective and non-partisan. I recognize that

my duty to the Court prevails over any duty I may have to Dr. Connors. My

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Page: 7 opinion is based upon the medical facts and has not been influenced by

the position of Dr. Connors, on whose behalf I have been retained, or by

my professional relationship with Dr. G. Attached hereto as Exhibit “B” is

the Acknowledgement of Expert’s Duty (Form 53E) executed by me on

September 17, 2013.

27. I do not have an interest in the outcome of this proceeding.

Testimonial

[11] At page 7 of his report dated February 28, 2007, in the middle of a paragraph

entitled “The nature and adequacy of the informed consent”, Dr. F. states “Dr.

Connors is recognized by her colleagues for her exceptional methodical and

considerate approach to the delivery of care to her patients.” This statement has

nothing to do with informed consent, which is the subject of the paragraph - it is an

anomaly. The statement is about the Defendant’s character and reputation, which has

nothing to do with whether or not the Defendant was negligent in her treatment of the

Plaintiff. In my view, this is a testimonial: “A character reference, letter of

recommendation, expression of appreciation” (Webster’s New Collegiate Dictionary).

It is not clear what first hand knowledge one Ob-gyn doctor in Nova Scotia would have

of the doctor-patient relationships of another Ob-gyn doctor in PEI, and what Dr. F. is

saying in his testimonial may be no more than what he hears.

[12] It was inappropriate of Dr. F. to comment favourably on Dr. Connors’

reputation in his expert’s report - the comment is a partisan comment. Experts should

never give testimonials in the cases in which they give opinion evidence. A

testimonial like this could be innocent, or it could be a not at all subtle attempt to

influence the judge by asserting the doctor is respected by all, likely did not err, and

should receive a favourable reception from the Court based on a stellar career. The

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difference between expert opinion and testimonial is the difference between being

objective and attempting to help.

The Expert Witness

[13] An expert witness is someone who through education, training or experience

has advanced knowledge about a subject relevant to a matter or issue in a trial, to

such an extent that the court qualifies that person to give opinion evidence within

his/her area of expertise.

[14] As to admissibility of expert evidence generally, in 1993 in R v Marquard,

[1993] 4 S.C.R. 223 (S.C.C.), McLachlin J. (as she then was) for the majority, set out

a broad inclusive rule at para. 224:

The only requirement for the admission of expert opinion is that the expert

witness possesses special knowledge and experience going beyond that

of the trier of fact”... Deficiencies in the expertise go to weight, not

admissibility.

[15] Rule 4.1.01(1) of our Rules of Civil Procedure states:

DUTY OF EXPERT

(1) It is the duty of every expert engaged by or on behalf of a party to

provide evidence in relation to a proceeding under these rules,

(a) to provide opinion evidence that is fair, objective and non-partisan;

(emphasis added)

(b) to provide opinion evidence that is related only to

matters that are within the expert’s area of expertise; and

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(c) to provide such additional assistance as the court

may reasonably require to determine a matter in issue.

Duty Prevails

(2) The duty in subrule (1) prevails over any obligation owed by the

expert to the party by whom or on whose behalf he or she is

engaged.

[16] Expert Witnesses must sign a document acknowledging their duty to the court

in Form 53E, as follows:

ACKNOWLEDGMENT OF EXPERT’S DUTY

...

3. I acknowledge that it is my duty to provide evidence in relation

to this proceeding as follows:

(a) to provide opinion evidence that is fair, objective and non-

partisan; (emphasis added)

...

[17] The Society of Obstetricians and Gynaecology of Canada [SOGC]

publishes the Journal of Obstetrics and Gynaecology Canada, [JOGC]. In October

2006, the SOGC published the SOGC Policy Statement entitled “The Physical Expert

in Legal Proceedings”, which states in part [JOGC No. 183, October 2006]:

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Generally

1. A member assisting in a judicial, regulatory, or other legal proceeding,

for either side, has a duty to the participants and to the profession to be

honest, thorough, impartial, and objective. (emphasis added)

2. Members should consciously try to identify any potential biases they

may have prior to accepting a request to provide an expert opinion.

Members with direct personal knowledge of events or participants or with

strong views on matters directly relevant to the request should consider

whether their ability to be impartial and objective might possibly be

impaired. The role of the expert is to clarify the medical circumstances of

a given case in the context of best practice standards. Members should

strive to avoid becoming advocates for one side or another in an adversarial

proceeding. (emphasis added)

...

Bias and partisanship in Experts

[18] Bias and partisanship in expert witnesses have been problems for as long as

there have been expert witnesses. Traditionally, courts have dealt with biased

experts by giving less or even no weight to their opinion evidence. Recently, in some

jurisdictions, the courts, and sometimes the Rules of Court have asserted: 1) experts

owe a duty to the court to give evidence which is free from bias and partisanship, and

2) experts must themselves be free from bias and partisanship. This appears to be

designed to put an end to biased experts. It is different from our requirements. In the

present case, the Plaintiff does not challenge Dr. F.’s medical expertise, but asserts

he is biased in favour of the Defendant. The Plaintiff does not ask Dr. F.’s evidence

be given less or possibly even no weight because of this alleged bias (and in any

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case that could only be done by the trial judge in his/her decision following a trial); the

Plaintiff seeks to have Dr. F. disqualified as an expert witness.

Precedents

[19] In Nationald Justice Compania Naviera S.A. v. Prudential Assurance Co.

Ltd. (“The Ikarian Reefer”) [1993] 2 Lloyd’s Rep. 68 (Q.B.)., Cresswell J.

discussed the duties of expert witnesses. At Page 69 of the Lloyd’s summary,

Justice Cresswell is quoted as follows:

...

Per CRESSWELL, J. (at p. 81, col. 2): I will refer to some of the duties and

responsibilities of experts in civil cases because I consider that a

misunderstanding on the part of certain expert witnesses...as to their

duties and responsibilities contributed to the length of the trial...

The duties and responsibilities of expert witnesses in civil cases include

the following:

1. Expert evidence presented to the Court should be and should be seen

to be the independent product of the expert uninfluenced as to form or

content by the exigencies of litigation...

2. An expert witness should provide independent assistance to the Court

by way of objective unbiased opinion in relation to matters within his

expertise...An expert witness in the High Court should never assume the

role of advocate. (emphasis added)

...

[20] As I understand it, the words: “Expert Evidence...should be and should be seen

to be the independent product of the expert...”, struck a chord in some Canadian

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courts, but not in others. I believe those words would put an end to our existing and

fair way of dealing with bias, and would substitute a regime in which good opinion

evidence from a somewhat biased source would not be available to the court. I reject

the Ikarian notions of qualifying or disqualifying experts.

[21] In Ikarian Reefer, it was alleged the captain and crew intentionally ran the ship

aground off the Ivory Coast. There was no one in Ikarian who was just somewhat

biased - everyone was totally biased one way or the other. Normally, the captain and

crew would be valuable witnesses; in Ikarian this case they were all criminals. In my

view, Ikarian Reefer illustrates the danger of making a rule based on an extreme

situation.

[22] Mewett and Sankoff, Witnesses, Carswell, Toronto, 1991 (Updated to

November, 2013) states at pp. 10-51 - 10-52

(c) Independence

... in the vast majority of cases it is the parties themselves who choose

who they wish to tender as an expert. Experts are often - though not

always - remunerated for their time and are effectively retained to provide

an opinion to the party that hires them. This understandably creates a

certain amount of allegiance, and experts tend to be chosen by the parties

on the reasonable expectation that they will support the case of the party

calling them.

Notwithstanding these facts, a growing number of decisions have

suggested that experts owe responsibilities towards the courts as well,

and in particular are under a duty “to assist the court in resolving the

issues and coming to a just conclusion”. In the oft-cited decision of

National Justice Cia Naviera SA v. Prudential Assurance Co Ltd, The

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Page: 13 Ikarian Reefer, Cresswell J. went so far as to make this a criteria of

admissibility:

The text then quotes points (1) and (2) in the quote from The Ikarian Reefer and then

continues.

Laudable as it may seem at first glance, this statement is difficult to

swallow, as taken literally it is impossible to imagine many experts

meeting the high standard it requires. Certainly, very few would survive a

reasonable apprehension of bias test, as most experts are financially

compensated for their testimony, and have a fair bit to gain - in terms of

future employment - by providing beneficial evidence to the persons who

are paying them for their work. This is not to suggest that most experts lie

or provide evidence solely to comply with their client’s desires, but it

nonetheless cannot be said that paid experts are neutral, unbiased

witnesses. So long as parties are given freedom to choose their own

experts, a certain amount of favoritism from these witnesses is simply a

reality of the adversarial process. Moreover, it is not entirely clear why

partiality should be treated as a precondition of admissibility. Obviously,

the expert’s ties to the party tendering them will be attacked in cross-

examination, and any partiality can be considered as a matter of weight.

Notwithstanding these points, Canadian courts often speak of

independence as being related to admissibility, though generally speaking,

a blanket refusal to qualify an expert will only occur where the ties to the

party in question involve something much more significant than a simple

contract promising compensation for testimony. (emphasis added)

...

[23] Mewett and Sankoff then refer to the following cases:

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Page: 14 [In] ... Prairie Well Services Ltd. v. Tundra Oil & Gas Ltd. , ...the trial judge

rejected an employee of the defendant as an expert, holding that “he is too

connected to one side of this litigation for his opinions to have much value,

“ and Kirby Lowbed Services Ltd. v. Bank of Nova Scotia, where the

defendant’s long-standing private relationship with the proposed witness

showed that the “tendered experts’ personal sympathies were engaged to

a greater degree than would probably be normal with an expert witness”.

(emphasis added)

[24] Cudmore, Gordon, Civil Evidence Handbook, Thomson Reuters Canada

Limited, Toronto 1994 (Updated to March 10, 2014) Vol. 2, makes a number of points

which were of assistance to me in considering this motion. At pp. 14-10.14(21) - 14-

10.14(26):

Expert witnesses are retained to provide objective, and unbiased opinions

rather than to act as advocates. An expert who has been retained by one

party may give opinion evidence despite the other party having previously

retained an expert from the same consulting firm.

...

An expert’s role is to express an unbiased opinion on a technical subject

that the court considers useful to hear and that is relevant to the subject

matter of the case. Judges must ensure that experts act in conformity

with their role as amicus curiae. They must decide whether the expert has

overstepped and whether the expert’s testimony is prejudicial to the

interests of justice. It is the duty of a trial judge to ensure that the expert

appearing before him or her has not advertently or inadvertently put on

counsel’s robe in pressing his opinion upon the court. Questions by the

trial judge for the purpose of clarification are permissible and designed to

ensure that the attitude of expert witness does not become that of an

advocate. (emphasis added)

...

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Page: 15 The possible bias of an expert, due to lack of independence, where the

expert testimony is otherwise relevant and necessary, is a factor going to

the credibility of the evidence and not its admissibility.

...

Bias or partiality in expert evidence which is based on the expert having a

connection with a party or issue or possible predisposition or approach in a

case is a reliability issue which is best determined when the whole of the

expert’s evidence is considered in the context of all the trial evidence. As

such, the issue is one of weight, and not admissibility.

...

Merely because a witness is employed by the party calling the witness is

not, in itself, a disqualification. It is an error in law to tie in the issue of the

qualification of a witness to the issue of the witness’s independence.

(emphasis added)

[25] Abbott and Haliburton Co. Ltd. v White Burgess Langille Inman (c.o.b.

WBLI Chartered Accountants), [2013] N.S.J., No. 259 (NSCA), is a case in which one

party sought to disqualify an expert witness for the other side on the basis of lack of

independence. Beveridge J.A., for the majority, stated at paras. 160-161:

160 ...The Mohan criteria set the bar for admission of expert evidence:

relevance; necessity in assisting the trier of fact; the absence of any

exclusionary rule; and a properly qualified expert.

161 There is no stand-alone requirement for a party to demonstrate that its

expert witness is, or appears to be independent. That is not to say that a

trial judge does not have a residual discretion to exclude proffered expert

opinion evidence if she is satisfied that an expert is in fact biased, or is

acting as an advocate, to such an extent that the potential prejudicial

effect outweighs its probative value. Here the proffered evidence was in the

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Page: 16 context of a motion for summary judgment. The ultimate probative value of

her opinion is for the trier of fact. (emphasis added)

[26] In 115465 Alberta Ltd. vs Adwood Manufacturing Ltd., 2010 ABQB 133,

A.W. Germaine J. stated at paragraph 150:

...expert evidence can be entered through experts that are effectively “in

house” (closely aligned with the party calling the witness) and ... the

issues that flow from non-arm’s-length association go to weight rather then

admissibility.

[27] In the Schedules to the Adwood decision Germain J. stated:

2.4 The plaintiff relies on Lameman v Canada (Attorney General);

Papaschase Indian Band No. 136 v. Canada (Attorney General), 2006

ABCA 392, 66 Alta. L.R. (4th) 243, reversed on other grounds 2008 SCC

14, [2008] 1 S.C.R 372 [“Lameman”]. The Alberta Court of Appeal

Lameman decision has been interpreted by other Alberta trial judges to

mean that an expert witness need not be independent to be qualified to

give evidence, rather the lack of independence goes only to the question of

the weight given that evidence. (emphasis added)

...

2.6 ..., the defendant points out that there is a changing mood in the

courts, evidenced most predominantly in Great Britain, where the courts

are turning their back on experts that lack independence, making witness

independence a qualification issue rather than a weight issue.

2.7 Exemplifying the stricter English view is the leading case of The

Ikarian Reefer, [1993] 2 Lloyds Rep. 68 (Comm. Ct. Q.B. Div.) (Full style:

National Justice Compania S.A. v. Prudential Assurance Co. Ltd.

(Ikarian Reefer)), approved [1995] 1 Lloyds Re. 455 (C.A.) [“Ikarian

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Page: 17 Reefer”], in contrast to the less restrictive “weight only” approach adopted

by our Court of Appeal in Lameman.

...

2.12 In the UK [The] these principles [stated in Ikarian Reefer] have, in

part, been codified in the new English Civil Practice Rules and used to

exclude testimony of an expert who was a close personal friend

(Liverpool Roman Catholic Archdiocesan Trustees v. Goldberg (No.

3), [2001] 1 W.L.R. 2337 (Ch. D.)) and where an expert was unaware of his

obligations and responsibilities to the court (Stevens v. Gullis, [2000] 1

All. E.R. 527 (C.A.(Civ. Div.))).

2.13 The duties identified in Ikarian Reefer place a special onus on an

expert witness. That witness is less a ‘witness for a party’ than a ‘witness

for the court’. Veit J. In Jacobson v. Sveen, 2000 ABQB 215 at paras.

32-36, 262 A.R. 367 described the role of the expert witness in this

manner:

32 Despite the conclusion that the Defence Medical Examination is not intended to

be an “independent” examination of the type proposed by the plaintiff, I re-affirm

that, naturally, all experts who provide evidence in legal proceedings must comply

with the basic requirements of such witnesses, including an obligation to give an

honest opinion: The Ikarian Reefer; Stevens. Expert witnesses in civil cases have

several duties and responsibilities when they are in court before a judge, and that

includes the duty to give independent and unbiased evidence. They may be

advocates for their side and take and adversarial stance, but they cannot mislead

the court by giving a less than honest opinion, or one that would compromise their

independence and undermine the court’s reliance upon them.

...

35 Although the expert’s report itself may strongly advance the

position of the expert’s client, an expert cannot mislead, either in

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Page: 18 the report or in court. That principle may not be codified in our

Rules of Court but is fundamental nonetheless.

The Present Claim of Bias

[28][

Family doctors are an obvious example of experts who could be presumed to be

somewhat biased towards their patients, but assuming the doctor signed the

undertaking to give unbiased evidence - a distinction between the person and the

evidence - the court could certainly qualify the doctor as an expert and accept the

evidence subject to weight.

[29] In my view, all doctors, teachers, fishers, engineers, carpenters, plumbers,

farmers, nurses, veterinarians, etc, etc, have the necessary qualifications to give

opinion evidence in their field. If one of these experts had some connection with the

case which led to an assumption of bias, under the present system the judge could

treat it as a matter of weight, and in so doing receive evidence which would not

otherwise be available.

[30] Professionals who are active in their professional associations may have

repeated contact or involvement with others in the same profession. I expect this is

particularly so in the Atlantic Provinces, where the numbers are smaller. The contact

may include attending dinners and other events which are half professional/half social,

or at least aspire to be. Some professionals who meet through their work become

friends with one or more of the people they meet, some do not.

[31] If the Defendant and her proposed expert were friends, that could result in the

expert’s opinion being given little or no weight, but in my view, that would be a

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decision to be made by the trial judge. I cannot imagine a motions judge, which I am

on this matter, would disqualify an expert unless the problem were very clear.

[32] On the other hand, in my view there is nothing wrong with an expert agreeing to

opine on a case in which he/she knows and respects the plaintiff on whose behalf

he/she will testify - a perfectly reasonable motivation. What it comes down to is:

doctors should offer their opinions on matters within their area of expertise, and (as to

the testimonial), not on personal characteristics or reputations, at which their opinion

is no better than anyone else’s.

[33] Can an expert give opinion evidence for a friend who is sued on a matter

within the expert’s area of expertise? I expect the answer is generally “yes” but the

defendant who relies on the expert evidence of a friend runs the risk the evidence may

be given little or no weight, particularly where, as in this case, the expert opinion on

medical practise includes a testimonial about what a good doctor the Defendant is.

In Summary

[34] 1) One of the characteristics of an expert witness is impartiality or lack of bias

in his or her opinion evidence.

2) Absence of bias in an expert witness is not essential, but proof of some

level of bias may lead to the expert’s opinion evidence being given less or even no

weight.

3) The weight to be given to the evidence of any witness, including an expert

witness, falls within the province of the trial judge, not a pre-trial motions judge, which I

am on this motion.

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4) There may be cases in which a motions judge could disqualify an expert, but

I conclude this is not one. - the evidence on this motion of an association or friendship

between the defendant and the expert is not at all compelling.

5) Testimonials as to the quality of practice of a doctor are not admissible at

trial: they are irrelevant to the issue of whether the doctor erred in a particular case.

6) The inclusion in the expert report of the proposed expert witness of a

testimonial as to any personal or professional characteristic of the Defendant is

improper, may demonstrate bias and partisanship and may result in the expert

witness’ evidence being given less or no weight.

7) Associations between a defendant and a proposed expert witness do not

automatically lead to a conclusion of bias or lack of impartiality: it depends on the

evidence.

8) As a rule, where there is evidence of bias or lack of impartiality on the part

of the proposed expert witness, it is a question for the trial judge who is in the best

position to hear the evidence, judge the matter, and decide what to do about it.

[35] There are many conceivable situations in which a person might be supposed

to be biased and yet be qualified to give opinion evidence which would be received

by the court subject to weight.

Conclusion

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[36] While I accept that in a very clear case a motions judge could pre-empt the

customary role of a trial judge and disqualify a prospective expert from testifying at a

trial, I am satisfied I should not do so in this case/situation, for the following reasons:

1) The facts are not clear - the affidavits assert two entirely different

versions of the facts.

2) Even if the facts were as asserted by the Plaintiff, it is not clear to me

the facts disclose a relationship which would affect Dr. F.’s ability to

give expert opinion evidence.

3) If the facts did disclose a relationship which in my view would affect Dr.

F.’s ability to give expert opinion evidence, there are two possible

remedies: 1) hear the evidence but give it less or even no weight, or 2)

do not hear the evidence at all. As a motions judge, I cannot give less

weight to Dr. F.’s evidence at trial, and I cannot instruct the trial judge to

do so.

4) I have not had the opportunity to see or hear either expert, or give Dr. F.

an opportunity to defend himself in person against the claim of bias.

[37] Accordingly, I conclude I should only grant such a motion where it is clear from

the evidence the proposed expert must be disqualified for bias, and this is not such a

case.

[38] I appreciate leaving Dr. F.’s status as a potential expert to be determined later

will not satisfy the Plaintiff’s needs, but that is because challenging his expert status

by motion is actually a way of getting at the other part of the motion - which is to keep

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two experts Dr. F. and Dr. G. from testifying in the same trial, and leaving Dr. F.’s

status undetermined until trial may result in Dr. G withdrawing from the case.

[39] For the reasons set out above, the Plaintiff’s motion is dismissed. Because the

motion raises a novel issue at least in this province and because it was driven by the

needs of a witness, and not by the Plaintiff, who is asserted to be impecunious, I order

each party will bear her own costs of this motion.

_________________________

J.

April 11, 2014

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