Canadian Lawyer InHouse

29 CANADIANLAWYERMAG.COM/INHOUSE MAY 2017 the incident was likely "suicide by cop," because what was in Yatim's state of mind was not relevant to whether the offi cer used reasonable force in shooting the young man. That decision is one of the grounds of appeal fi led by the offi cer in his appeal to be heard later this year. If it is the rare case where an expert will be precluded from testifying, the White Burgess decision also clarifi ed that a witness is not necessarily biased because of any con- nection or interest in the litigation. "It is sometimes hard to fi nd someone who is completely independent. That is the reality of the scientifi c process and who is funding," says Reinertson. In one of the more detailed decisions on these issues since that Supreme Court rul- ing was issued, Ontario Superior Court jus- tice Paul Perell explained in Wise v. Abbott Laboratories last fall that "impartiality is a question of fact," to be assessed on a case- by-case basis. "That the proposed expert is paid or has an employment relationship or has a pre-existing relationship with a litigant is something to be examined, but it does not necessarily entail that the wit- ness cannot or will not comply with his duty to the court when giving expert evidence," wrote Perell. Even if an expert has any business rela- tionship with your organization, it is vital that you ensure their opinions are impar- tial, says Dean Scaletta, director, informa- tion and litigation at the Manitoba Public Insurance Corporation. Appeals of its de- cisions on bodily injury compensation are heard by an administrative tribunal. The public agency has a team of health profes- sionals contracted to provide expert reports for these appeals. "We want them to tell us if the appellant has made out her case. We want to know that," says Scaletta. Other- wise, it would impact their credibility with the appeal tribunal, he says. Allegations that the other side's expert is not impartial are not surprising, says Goudge. "Lawyers tend to rush to bias, because it is something they understand," he says. However, that on its own will not necessarily impeach a witness. "There are other things that can go wrong with expert evidence that have nothing to do with bias," says Goudge. Since the inquiry's report was issued in 2008, Goudge has continued to speak about expert evidence and its role in the courts with members of the legal community. "The desire to continue to improve the way the justice system deals with expert evi- dence is real. That is something we should celebrate," he says. IH It is sometimes hard to fi nd someone who is completely independent. That is the reality of the scientifi c process and who is funding. ROBIN REINERTSON, Blake Cassels & Graydon LLP Fearless advocates. Trusted advisors. RUETERS LLPbv-0oঞt;Ѵ-Cul|_-|ruob7;vr;uvom-Ѵb;7ķ _b]_t-Ѵb|-7o1-1|obm7bb7-Ѵvķ0vbm;vv;vķ-m7bmvঞ|ঞomv bm-ѴѴ-vr;1|vo=Ѵbঞ]-ঞom-m77bvr|;u;voѴঞomĺ ƑƔƏ+om];"|u;;|ķ"b|;ƑƑƏƏķ$ouom|oķm|-uboƔƑƕŇƓƐѵŊѶѵƖŊƖƏƖƏ www.RUETERSLLP.com Untitled-1 1 2017-04-06 9:22 AM

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