Expert evidence - the Mohan test upheld as the correct test by the Supreme Court of Canada

Masterpiece Inc. v. Alavida Lifestyles Inc.,2011 SCC 27 released this morning deals with the test for confusion between trade-marks. The decision is important in intellectual property law but has a broader importance arising from its treatment of expert evidence. Certain cases, specifically R. v. Abbey, 2009 ONCA 624 have been taken as suggesting there is a new test for the admission of expert evidence. Masterpiece, without commenting on Abbey, specifically upholds the Mohan test as being the test for admission of expert evidence. The Court writes:

(1) The Judge’s Role in Controlling the Admission of Expert Evidence

[75] Tendering expert evidence in trade-mark cases is no different than tendering expert evidence in other contexts. This Court in R. v. Mohan, [1994] 2 S.C.R. 9, set out four requirements to be met before expert evidence is accepted in a trial: (a) relevance; (b) necessity in assisting the trier of fact; (c) the absence of any exclusionary rule; and (d) a properly qualified expert. In considering the standard for the second of these requirements, “necessity”, the Court explained that an expert should not be permitted to testify if their testimony is not “likely to be outside the experience and knowledge of a judge”:

This pre-condition is often expressed in terms as to whether the evidence would be helpful to the trier of fact. The word “helpful” is not quite appropriate and sets too low a standard. However, I would not judge necessity by too strict a standard. What is required is that the opinion be necessary in the sense that it provide information “which is likely to be outside the experience and knowledge of a judge or jury”: as quoted by Dickson J. in R. v. Abbey, supra. As stated by Dickson J., the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature. [p. 23]

[76] In light of the relatively extensive expert evidence in this case, and the difficulties with the evidence that I discuss below, I think it is timely to recall that litigation is costly. Courts must fulfil their gatekeeper role to ensure that unnecessary, irrelevant and potentially distracting expert and survey evidence is not allowed to extend and complicate court proceedings. While this observation applies generally, I focus particularly on trade-mark confusion cases, which is the subject of this appeal.

[77] If a trial judge concludes that proposed expert evidence is unnecessary or irrelevant or will distract from the issues to be decided, he or she should disallow such evidence from being introduced. I will also suggest that proposed expert and survey evidence be a matter for consideration at the case management stage of proceedings so that if such evidence would not be admissible at trial, much of the cost of engaging experts and conducting surveys may be avoided. To explain my reasons, I turn to the expert evidence in this case.