The independent expert witness: How did we get here?

• Author: Bryan Finlay
• Pages: 137-148

137

g Fall 2015

he inepenent expert witness:

HOW DID WE GET HERE?

BRYAN FINLAY, Q.C.*

In a pair of decisions released within weeks of each other, the Supreme

Court has eectively hollowed out the requirement that an expert witness

be independent.1 On the one hand, the Court has found it permissible for

an expert witness to be a founding member and a current ocer of a party

to the litigation, that party seeking as consistent with its goals, the relief

claimed in the litigation.2 On the other hand, the Court has held, at the

same time and in the name of independence, that the trial judge may well

draw the line against the proposed expert who has a nancial interest in

the litigation, who is an advocate for a party or who has a close familial con-

nection with one of the parties.3 This result is incomprehensible: the expert

whose professional rationale includes the achievement of a particular result

in the litigation may give opinion evidence, so long as he or she has no

direct nancial interest in the result or does not “appear” to be an advocate.

How did we get here? I believe the answer is that, although the

Supreme Court pays homage to the importance of the independence of

* The author wishes to acknowledge the assistance of James White (Fox Scholar) and

Kayla Theeuwen in the preparation of this note, including many ne conversations.

He claims sole responsibility, however, for any errors or omissions.

1 White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 [Abbott SCC];

Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 [Saguenay SCC].

2 Saguenay SCC, supra note 1 at paras. 106–107.

3 Abbott SCC, supra note 1 at para. 49.