The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/50804
their homework, and having brought it to your attention," he says. Where adverse judicial comment becomes a flag of great- er concern is if it was apparent that over a period of time the expert was basically a mouth for hire, he says, or if a prior judge made a comment where he or she felt the expert was not credible or attempted to mislead the court. As a personal injury plaintiff 's counsel, Calgary's James Cuming of Cuming & Gillespie, says prior adverse judicial com- ment is fair game in cross-examination. "What you do want to bring to the court's attention and discuss with the individual is their history of testifying and whether or not they perhaps have made a career of testifying for various plaintiff-friendly or various defence-friendly entities, institu- tions, or clients throughout their history," he says. "If they have done that, and if their testimony has been discounted from previous courts, it's certainly something that needs to come to the forefront." In terms of retaining an expert, Cuming says background research before the indi- vidual is retained is key. "As counsel, if you have the misfortune and lack of planning to retain an expert who has questionable credibility, or whose credibility has been questioned by a court in the past, trial is not the time to find that out." "Good counsel should never be in the position where [an] expert is on the stand and all of a sudden, a prior case comes up where they were totally annihilated," adds Sandra Forbes, president of The Advocates' Society and a partner with Davies Ward Phillips & Vineberg LLP in Toronto. Meanwhile, the Ontario Rules of Civil Procedure were amended Jan. 1 to include a section on the "duty of expert," setting out that experts need to provide "opinion evidence that is fair, objective, and non- partisan," and "opinion evidence that is related only to matters that are within the expert's area of expertise." Similar rules are set to be implemented in the B.C. Supreme Court in July. The new duty of expert rules will likely affect the issue of prior adverse judicial comment at the most general level, given their emphasis on proportionality and efficiency, says Farrow. Parties spend a lot of money on experts, and Farrow says this is one of the parts of litigation that court reform is trying to get a handle on — balancing par- ties' right to put their case forward with a notion of judicial efficiency and better use of court resources. Ultimately, he says, counsel need to do their due diligence, not only for the client's sake but also for the administration of justice. "If they find experts who are con- sistently running up against hurdles and judicial challenges, specifically meaning that their evidence isn't being believed or it's consistently not relevant, then question whether it's useful for a lawyer's client to put that expert forward, or whether it's in the spirit of furthering the administration of justice by doing so." PROFESSIONAL DIRECTORY G.R. Moss Appraisals Inc. Machinery and Equipment Valuations PROVIDING EXPERT OPINIONS FROM COAST TO COAST GILLES R. MOSS A.S.A., CEA 2910 SOUTH SHERIDAN WAY OAKVILLE, ONTARIO L6J 7J8 www.grmossappraisals.com TEL. (905) 829-5594 FAX (905) 829-7600 CELL (905) 829-1590 valexperts.pro@rogers.com oss_CL_Nov_09.indd 1 10/28/09 2:36:04 PM ntitled-5 1 Supreme Court of Canada Counsel and Agency Services Henry S. Brown, Q.C. Martin W. Mason Guy Régimbald Eduard J. Van Bemmel, Legal Assistant 4/6/09 4:20:13 PM Brian A. Crane, Q.C. Graham Ragan 2600 - 160 Elgin Street, Ottawa, ON K1P 1C3 Tel: (613) 786-0139 Montréal Ottawa || Kanata | gowlings.com www. C ANAD i AN law ye rmag.com APRIL 2010 45 ainmaker-BC_CL_Apr_10.indd 1 3/24/10 10:17:08 AM ntitled-5 1 12/11/08 3:24:59 PM Toronto | Hamilton | Waterloo Region | | | Calgary Vancouver Moscow | London