Canadian Lawyer InHouse

23 CANADIANLAWYERMAG.COM/INHOUSE MAY 2017 At Pallett Valo we give you what you need, not what you don't. With our flexibility and the right expertise in a variety of business law areas, we can provide you with a legal solution that is tailored to suit you – all without compromising service or quality. If you want legal representation that's just the right fit for you, try on our Right-sized Thinking®. The Right Fit Matters Right-sized Thinking® • 1-800-323-3781 • pallettvalo.com Your Authority For: Business Law • Commercial Litigation • Commercial Real Estate Construction • Insolvency & Corporate Restructuring Employment & Labour • Wills, Estates & Trusts Untitled-5 1 2017-03-30 2:59 PM "Our world is becoming increasingly complex," says Stephen Goudge, who re- tired from the Court of Appeal in 2014. As a result, courts are likely to place greater weight on expert opinion if the central issue involves highly technical or scientifi c sub- ject matter, he suggests. "That enhances the duty we all have" in ensuring that expert ev- idence is reliable, says Goudge, who is cur- rently counsel to Paliare Roland Rosenberg Rothstein LLP in Toronto. The challenge for lawyers on both the plaintiff and defence side is how to make the most effective use of expert evidence, in light of what the Supreme Court has said about this type of testimony in recent years and to guard against the perception that the witness is not seen as a "hired gun." The obligations of an expert and the framework for assessing this type of evi- dence was most recently analyzed in depth by the Supreme Court in its 2015 decision in White Burgess Langille Inman v. Abbott and Haliburton Co. "Expert opinion evidence can be a key element in the search for truth, but it may also pose special dangers," wrote Justice Thomas Cromwell in the court's judgment. Cromwell added that in the 20 years since its decision in R. v. Mohan, the rules around admissibility of expert evidence have been progressively tightened and the gatekeeping role of a trial judge has been enhanced. The decision in White Burgess reaffi rmed the principles set out in Mohan related to this type of testimony, but it stressed that an expert's fi rst duty is to the court, to provide objective and "non-partisan" evidence. In reference to two judicial inquiries, includ- ing the one headed by Goudge, the Supreme Court noted that biased expert evidence can lead to miscarriages of justice. A trial judge has authority to rule the testimony of an expert to be inadmissible if the threshold requirement of impartiality cannot be met. "Evidence whose value does not justify the risk of confusion, time and expense that may result from its admission" should be screened out, wrote Cromwell. For cases where expert evidence is likely to play a signifi cant role in the litigation, key decisions need to be made at an early stage, says Bryan McLeese, counsel at Chernos Flaherty Svonkin LLP in Toronto. "When I retain experts, the most important thing to do is to be fast," the civil litigator says. "You want the best expert, and the more specifi c the technical expertise, the more likely it is your pool is narrowed right away," he explains. Also, if an expert's initial opinion is not favourable to your client's po- sition, it is better to learn that at as early a stage as possible, he says. "It is much better to fi nd someone who legitimately believes in your position," says McLeese. This also could entail looking outside the country, says Robin Reinertson, a partner at Blake Cassels & Graydon LLP in Vancouver. "Canada is a pretty small market. The more specialized the area, the more likely you might have to go outside continued on 27

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