SCC case will affect expert witnesses in Aboriginal rights cases (WBLI v Abbott and Haliburton)

Aboriginal Law | Aboriginal Rights

A few weeks ago, the Supreme Court of Canada released their decision in WBLI v Abbott and Haliburton, a long awaited case on the issue of impartiality of expert witnesses. The full decision can be found here.  OKT has been paying close attention to this case since going to court for Aboriginal communities so often involves trying to present expert evidence before the courts – for example, traditional knowledge holders, historians, anthropologists, biologists, etc.

Some people argue that experts that are from an Aboriginal community, or who have previously worked closely with an Aboriginal community, are automatically biased and should not be allowed to testify about that community. This kind of position is potentially quite harmful for the ability of Aboriginal communities to get access to justice through the court system, and could lead to the strange situation where experts on Aboriginal communities could supposedly never have developed a relationship with or really gotten to know the community that is the subject of their expertise. The WBLI case therefore has big implications for Aboriginal communities seeking justice from the courts.

The facts of the case are summarized as follows. Some businesses retained WBLI as accountants, and those businesses later ran into financial problems. The businesses then retained Grant Thornton – Kentville as accountants. Grant Thornton told the businesses that WBLI had not followed accounting standards in their work and this was a cause of the businesses’ financial problems. The businesses sued WBLI, and sought to call MacMillan, a partner at Grant Thornton – Halifax as an expert witness on accounting standards.

WBLI tried to exclude the MacMillan evidence entirely. The trial judge agreed, suggesting that expert witnesses cannot be perceived to have a reasonable apprehension of bias. The trial judge thought that because the witness was from the same firm as the second set of accountants (Grant Thornton), she would therefore have a vested interest in saying the first set of accountants had not properly done their jobs. The Nova Scotia Court of Appeal split 2-1, with the majority overruling the trial judge’s decision.

In a unanimous decision, the SCC agreed that MacMillan should not have been immediately disqualified as an expert witness

The Court held that generally, if a judge is worried that an expert witness might be biased, she should allow the expert to testify, but then discount the evidence given by some amount to take into account the bias. The judge should not flat out prohibit the expert from testifying, however, unless there are very clear reasons to do so.

The Court found that expert witnesses have a general “duty to the court to give fair, objective and non-partisan opinion evidence. They must be aware of this duty and able and willing to carry it out. If they do not meet this threshold requirement, their evidence should not be admitted.” [paragraph 10]  The SCC explained this duty as follows: :

“Underlying the various formulations of the duty are three related concepts: impartiality, independence and absence of bias. The expert’s opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party’s position over another. The acid test is whether the expert’s opinion would not change regardless of which party retained him or her.” [paragraph 32]With respect to bias, the Court adopted the following legal test:

“For expert testimony to be inadmissible, more than a simple appearance of bias is necessary. The question is not whether a reasonable person would consider that the expert is not independent. Rather, what must be determined is whether the expert’s lack of independence renders him or her incapable of giving an impartial opinion in the specific circumstances of the case.” [paragraph 36]

The Court seems to say that a witness should be excluded outright from testifying only when it is clear that the expert will not be capable of giving an impartial opinion in the particular case. However, their potential impartiality should be considered by the judge when deciding how much weight to give to the evidence.

In my view, the SCC wisely steered away from the most rigid theories about the impartiality of expert witnesses. To require an expert witness to avoid absolutely any suggestion that they might be biased – which is what the reasonable apprehension of bias standard means – would be to subject them to the same standard as judges. Judges are rightly excluded from hearing a decision if they could potentially be seen to be biased by a reasonable person. Experts should not be disqualified by the same rule, if only because they play a fundamentally different role in the litigation process. For one thing, an expert is paid by the litigant – if a judge were being paid by a litigant, she would certainly be fairly seen to be biased!

The SCC also quite reasonably recognized that it would be a mistake for courts to look to experts to essentially come up with the right answers to cases – to essentially be judges. Rather, the Court realistically recognized that experts, like anyone else, come from certain perspectives, and their testimony will reflect those perspectives. A good judge will consider those perspectives in deciding how much weight to give the expert’s evidence. But it is difficult, if not impossible, to come up with any hard and fast rules about who is sufficiently “neutral” to testify.

To me, it is a fallacy to take the fact that there are certain perspectives out there to mean that there must also be certain people who come at issues from a neutral perspective. There isn’t necessarily a magical “neutral” viewpoint out there that will yield the perfect answer to a case. Rather, the SCC in this decision recognizes that judging is necessarily a matter of wisely and justly reconciling different viewpoints and that all experts reflect their views of the world in their expert work.

By Senwung Luk