Has the Supreme Court of Canada done away with the concept of apparent bias?
In White Burgess Langille Inman v. Abbott and Haliburton Co., a must-read decision for anyone involved in litigation, the Supreme Court of Canada tackles some of the difficult questions associated with how to properly deal with the proposed evidence of potentially biased experts.
The Court clarifies how concerns of bias and partiality should be dealt with in the existing admissibility framework and also provides guidance about what is required to meet the threshold to have expert evidence excluded altogether.
This appeal arises out of a professional negligence action brought by the respondents (the "Shareholders") against the appellants, the former auditors of the Shareholders' company (the "Auditors").
The Shareholders started the action after they had retained a new accounting firm to perform various accounting tasks, which allegedly revealed problems with the Auditors' prior work. The central allegation in the underlying action is that the Auditors' failure to apply generally accepted auditing and accounting standards caused financial loss to the Shareholders.
The Auditors brought a motion for summary judgment, which prompted the Shareholders to retain a forensic accounting expert (the "Shareholders' Expert"), a partner at the accounting firm that revealed the alleged problems with the Auditors' work. The Shareholders' Expert opined that the Auditors had not complied with their professional obligations and delivered an affidavit to this effect in response to the motion for summary judgment.
The Auditors then applied to strike the affidavit of the Shareholders' Expert on the grounds that the expert was not impartial.
The motions judge at the Nova Scotia Supreme Court essentially agreed with the Auditors and decided to strike the affidavit of the Shareholders' Expert in its entirety. The motions judge found that her opinion did not meet the threshold requirements for admissibility, noting that an expert's evidence "must be, and be seen to be, independent and impartial".
The majority at the Nova Scotia Court of Appeal allowed the Shareholders' appeal. While the Court of Appeal agreed that the court has a discretion to exclude expert evidence due to actual bias or partiality, it held that the threshold test adopted by the motions judge - that an expert must be, and be seen to be, independent and impartial - was wrong in law. As there was no finding of actual bias or partiality, the motions judge ought not to have struck the affidavit of the Shareholders' Expert.
The Supreme Court Decision
Cromwell J., writing for a unanimous seven-judge panel, clarified that experts must be aware of their overriding duty to the court to give fair, objective, and non-partisan opinion evidence, and must be able and willing to carry out this duty. This is a threshold consideration that should be included as part of the "properly qualified expert" inquiry in the Mohan framework for admissibility.
The Court noted that this threshold requirement is "not particularly onerous" and that it will likely be "quite rare" that a proposed expert's evidence would be ruled inadmissible for failing to meet this threshold. There must be an actual lack of independence or impartiality for expert evidence to be excluded at this stage. Cromwell J. states (at para. 49):
I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion...
However, even if the "properly qualified expert" threshold is met, concerns about an expert witness' independence or impartiality may still lead to exclusion of the expert's evidence at the gatekeeper stage of the analysis, as outlined by the Ontario Court of Appeal in Abbey. That is, the judge must still take concerns about the expert's independence and impartiality into account in its determination of whether the proposed evidence is sufficiently beneficial to the trial process to warrant its admission despite the potential harm.
The Relevance of Apparent Bias
While the Court confirmed that the concept of apparent bias has no role to play at the threshold stage of the admissibility inquiry, it is unclear whether apparent bias alone may nevertheless lead to evidence being excluded at the gatekeeper stage.
The Court noted (at para. 50) that apparent bias is not relevant to the question of whether an expert witness is able and willing to fulfill his or her overriding duty to the court:
As discussed in the English case law, the decision as to whether an expert should be permitted to give evidence despite having an interest or connection with the litigation is a matter of fact and degree. The concept of apparent bias is not relevant to the question of whether or not an expert witness will be unable or unwilling to fulfill its primary duty to the court. When looking at an expert's interest or relationship with a party, the question is not whether a reasonable observer would think that the expert is not independent. The question is whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance.
These observations were made in Cromwell J.'s discussion of the threshold consideration. However, he subsequently notes (at para. 57):
There was no finding by the motions judge that [the Shareholders' Expert] was in fact biased or not impartial or that she was acting as an advocate for the [Shareholders]... On the contrary, she specifically recognized that she was aware of the standards and requirements that experts be independent. She was aware of the precise guidelines in the accounting industry concerning accountants acting as expert witnesses. She testified that she owed an ultimate duty to the court in testifying as an expert witness... To the extent that the motions judge was concerned about the “appearance” of impartiality, this factor plays no part in the test for admissibility, as I have explained earlier.
While, arguably, Cromwell J.'s comments could be interpreted to mean that 'apparent bias' should not come into play at any stage in the admissibility framework, it is important to remember that the underlying action was brought in Nova Scotia, where judges do not have the power to weigh evidence on motions for summary judgment. If the Court intended to do away with the concept of 'apparent bias' altogether, one would expect a more clear statement to this effect.
However, it is significant that the Court finds that the mere fact that an expert has an interest in or a connection to the litigation is insufficient to preclude the expert from meeting the relatively low threshold for admissibility. In applying that principle to the facts of this case, the Court holds (at para. 60):
The fact that one professional firm discovers what it thinks is or may be professional negligence does not, on its own, disqualify it from offering that opinion as an expert witness. Provided that the initial work is done independently and impartially and the person put forward as an expert understands and is able to comply with the duty to provide fair, objective and non-partisan assistance to the court, the expert meets the threshold qualification in that regard.
It remains unclear whether the apparent bias in this situation would have any relevance at the gatekeeper stage at a trial in Nova Scotia or at a summary judgment motion in a different jurisdiction, such as Ontario, where judges are permitted to weigh evidence. Arguably, it is still open to litigants to challenge evidence where the nature and extent of an expert’s interest in or connection with the litigation, in and of itself, gives rise to concern.
This case will be important in actions that involve issues relating to the admissibility of expert opinion, for reasons of bias and partiality or otherwise. The Court ties together its decision in Mohan with several other decisions that have guided the determination of whether expert evidence should be excluded. While the Court’s decision in White Burgess does not entirely revamp the framework to be applied, several nuances have been adopted that will almost certainly affect how judges approach the evaluation of expert evidence going forward.
experts Nova Scotia Court of Appeal Supreme Court of Canada