Sep 23, 2020

Ongoing Duty to Ensure Expert Evidence is Impartial and Fair

Bruff-Murphy v. Gunawardena, 2017 ONCA 502 (CanLII)

An adjudicator’s duty to ensure that expert witnesses give neutral and impartial testimony just got a bit more challenging. In Bruff-Murphy v. Gunawardena, 2017 ONCA 502, a civil case involving damages from an automobile accident, Ontario’s highest Court has given detailed guidance on the role of adjudicators. In that case, the defence expert interviewed the accident victim for approximately one hour and then spent ten to twelve hours reviewing her medical records and identifying a number of inconsistencies between those records and what the expert had been told. The accident victim was not given an opportunity to explain those apparent inconsistencies. The expert witness then provided a report that seemed to focus on the credibility of the accident victim much more than on her condition. There were also concerns that the expert witness was unfair in many of his comments about both the accident victim and the other practitioners who had seen her.

The Court indicated that, before allowing an expert to testify, the adjudicator should consider not only the technical admissibility (e.g., relevance of the opinion and expertise of the expert), but also whether the expert is neutral and impartial and whether the benefits of the expert opinion outweigh the possible damage to the hearing process. The Court found that the trial judge was incorrect in balancing these other threshold factors given the expert’s approach to the matter and that this was a jury trial where undue weight could be given to the expert’s opinion.

The most significant aspect of the case was the finding by the Court that the adjudicator had an ongoing duty to ensure that the above threshold criteria continued to be met. When the trial judge’s concerns about the impartiality and fairness of the expert witness were realized, the trial judge should have intervened by hearing submissions, giving direction to the witness during his testimony and / or by giving a clear warning to the jury on how to assess the expert’s evidence. Even though legal counsel did not raise the concern, the adjudicator had a duty to the integrity of the hearing process to intervene.

Presumably, courts will give more deference to regulatory committees who are not made up of lawyers or judges. However, the need to ensure that expert witnesses provide impartial and fair testimony is a consideration such tribunals must take into account.