N.L. Appeal Court Eliminates the Expert Fact WitnessCompton v Toyota Canada Inc., 2019 NLCA 79 (CanLII)
On December 23, 2019, the Newfoundland and Labrador Court of Appeal effectively eliminated the category of “knowledgeable fact witness” in favour of broadening the category of “expert witness” and imposing the stringent requirements that come with it. The Appeal Court’s decision in Compton v. Toyota Canada alters the landscape for fact and expert witnesses in Newfoundland and Labrador: when an individual with specialist knowledge or experience is providing evidence taking into account that specialty, their evidence is likely to be deemed expert evidence. Parties (and their legal counsel) must be prepared to have that individual’s evidence admitted as an expert witness under the “Mohan” criteria (relevance, necessity, absence of an exclusionary rule and a properly qualified expert), and not as a fact witness, whenever their expertise comes into play in their evidence.
In Compton v. Toyota Canada, the self-represented plaintiff, Ms. Compton, sued Toyota claiming defective brakes caused an accident in her vehicle. Toyota applied to the court for a summary trial. Its application evidence included an affidavit from Nicholas Manz, the Toyota employee who inspected Ms. Compton’s brakes and the “black box” data recorder in her vehicle. Mr. Manz provided Toyota with a report on his inspection and what the “black box” data showed, reaching conclusions on the basis of his investigations in each report. The trial court accepted Mr. Manz’s evidence as fact evidence from an individual with specialist knowledge and relied heavily on it in dismissing Ms. Compton’s claim. Ms. Compton appealed the trial court’s decision – and the Court of Appeal overturned it on the basis of that reliance:
Line between fact & opinion. Toyota argued Mr. Manz’s evidence wasn’t an opinion, but was a presentation of his findings upon examining Ms. Compton’s vehicle. The Court of Appeal rejected this approach. Acknowledging the line between fact and opinion evidence, or even lay opinion and expert opinion evidence isn’t always clear, Mr. Manz’s evidence went beyond stating facts and instead provided conclusions and opinions.
Training & experience. It was also important to the Court of Appeal that Mr. Manz’s training and experience made it such that his ability to investigate the brakes on Ms. Compton’s vehicle and to extract and understand data from the “black box” went beyond “common ordinary knowledge and experience”. Because he was an “expert”, the Court decided, his evidence couldn’t be regarded as “lay opinion evidence”. Rather, any evidence he gave would likely be the evidence of an expert.
Expert affidavits in summary trials. The Court of Appeal did not, however, explain how the expert accreditation process would work in a summary trial. In full trials, evidence is entered by expert reports and the court traditionally hears about the Mohan criteria for expert evidence and admissibility before a party tenders any other evidence; in summary trials, however, all evidence is entered by affidavit that is subject to cross-examination. How trial courts will handle this practical difference is an open question for now.
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