Expert Testimony and Potential Bias

Today’s Court of Appeal decision in Deemar v.College of Veterinarians of Ontario, 2008 ONCA 600 makes clear that a trier of fact, faced with an expert who may not be impartial, may properly strike the evidence of that expert in entirety.

The Court holds:

[20] While the Discipline Committee might have struck the advocacy in the report and allowed Dr. Deemar to file the balance of the report, it chose to strike the whole report and disqualify Dr. Leslie from testifying.

[21] It is up to the trier of fact to qualify a proposed expert witness. The party tendering the proposed expert witness must satisfy the trier that he or she possesses not only the necessary expertise, but the requisite independence as well. For example, the trier may refuse to qualify a person of unquestioned expertise who is closely related to the tendering party.

[22] Here the Discipline Committee found that Dr. Leslie had “strayed from the function of an expert” and had taken on “the role of advocate and possibly the role of the trier of fact”. The Discipline Committee noted that an expert must have a minimum requirement of independence and cited authority that “if the person rendering the evidence assumes the role of advocate, he or she can no longer be viewed as an expert in the legally correct sense…”. Perricone v. Baldassara, [1994] O.J. No. 2199 at para. 17. Dr. Leslie’s demonstrated lack of the independence provided an ample basis for the Discipline Committee’s to refuse to accept Dr. Leslie as an expert witness.

[23] The Discipline Committee also determined that Dr. Leslie could not give any evidence at the discipline hearing because of her recent relationship with the College. Dr. Leslie had been the College’s Registrar for most of the period during which the complaint against Dr. Deemar was under investigation. While Dr. Leslie had not personally dealt with the complaint, she was administratively responsible for it. The fact that all of the Discipline Committee’s members were on the College Council when the College terminated Dr. Leslie’s employment presented the Discipline Committee with a difficult dilemma. This combination of circumstances made it unseemly, at the very least, for Dr. Leslie to testify regarding the merits of the complaint. The Discipline Committee addressed the dilemma by ruling that Dr. Leslie could not appear as a witness. The Divisional Court, which also took the view that Dr. Leslie’s appearance before the Committee’s current members was untenable, sought to address the dilemma by halting the complaint proceedings until the composition of the Committee changed.

[24] A resolution of the dilemma required the balancing of the interests of the member and the interests of the administration of justice generally. Dr. Deemar’s interest was in controlling her defence to the complaint. At the same time there was a public interest in the prompt disposition of allegations of professional misconduct against a member of a regulated profession.

[25] In my view, assuming the standard of review is correctness, the ruling of the Discipline Committee correctly balanced the interests of the member and the interests of the administration of justice generally. In ruling that Dr. Leslie could not appear as a witness, the Discipline Committee noted that Dr. Deemar had ample opportunity “to obtain a separate expert opinion that was equally valid”. Thus, the Discipline Committee’s decision struck a reasonable balance between the individual and public interests at stake.

[26] By contrast, the stay ordered by the Divisional Court frustrates the Discipline Committee’s statutory duty to hear and determine the complaint, without consideration of the alternatives available to Dr. Deemar. In my view, this is not an acceptable option. The only other viable option would have been to leave the admissibility of Dr. Leslie’s opinion to the members of the Discipline Committee hearing the complaint who would inevitably have reached the same conclusion. In my view, the option chosen by the Committee provided the fairest result for Dr. Deemar and allowed her to obtain other opinions that were readily available to her.

[27] I find support for that view that Dr. Deemar was accorded procedural fairness in the decision of Rothstein J., sitting as a trial judge of the Federal Court in Drummond v. Canada (1996), 33 Imm. L.R. (2d) 258. Rothstein J. judicially reviewed the decision of the Immigration Appeal Division excluding the evidence of an expert who had been a member of the Division until three months before the hearing. In upholding the Appeal Division’s decision, Rothstein J. observed that while the tribunal must generally not reject evidence, there was reason to do so in this case. The expert had a collegial relationship with a presiding member, and the admission of his affidavit could give rise to a reasonable apprehension of bias. As well, Rothstein J. concluded that the Appeal Division could not have admitted the affidavit and then given it little or no weight because of the affidavit’s “overtone of bias”; the affidavit had to be rejected in its entirety (para. 9).