Expert Witness (Independent)

Peart v. Ontario (Community Safety and Correctional Services), 2014 HRTO 611 (CanLII)

252] The applicant similarly objects to the respondent’s witnesses being qualified to give expert evidence. The applicant first takes the position that Dr. Cass, Mr. Barclay, Mr. Chappell and Mr. Anderson should be disqualified as expert witnesses on the basis of their close relationship with the respondent. In particular, the applicant relies upon the decision in R. v. Inco, [2003] O.J. No. 5364, overturned on this point at 2006 CanLII 14962 (ON SC), [2006] O.J. No. 1809. In the lower court, an expert witness proposed to be called by the Crown was excluded on the basis of a lack of independence, given that he was employed by the Ministry of the Environment. This determination was overturned on appeal, on the basis that there was no finding or evidence that the proposed expert witness had ever been an advocate for the Ministry, but rather had a technical role as a scientist and was proposed to give technical and scientific opinion evidence. The Court held (at para. 47) there is no prohibition against qualifying a witness as an expert merely because that witness is employed by a party to the litigation, and that this can be taken into account when the trier of fact assesses the weight and value of the evidence.

[253] I also was referred to this Tribunal’s decision in Marshall v. Durham Regional Police Service, 2011 HRTO 1246, in which an intervenor was prevented from calling its own employee as an expert witness, on the basis that the intervenor was supporting the applicant, taking positions adverse to the respondents, and seeking remedies from the respondents. In that case, the proposed expert witness was the Program Manager for the intervenor and worked closely with counsel for the intervenor. In my view, this decision is restricted to its own unique facts and the proper role of the intervenor in the proceeding, and does not support any general proposition that a proposed expert witness should be disqualified solely on the basis that he or she is employed by a party, particularly where the party is as large an organization as the provincial government.

[260] The applicant also suggests that Dr. Brison is not a truly independent expert witness, due to his involvement in certain studies with which Dr. Cass also was involved. As explained by Dr. Brison and Dr. Cass in their testimony, these were broad studies involving a number of different hospital sites, and the involvement of Dr. Brison was due to his work in Kingston and of Dr. Cass due to his work in Toronto. The fact that their names appear on the same publications does not, in my view, provide a sufficient or proper basis upon which to include that Dr. Brison’s independence is so compromised that he should be disqualified from testifying as an expert witness. I conclude the same with regard to the fact that CAISP (and later CAIR) receive funding from the provincial government.