White Burgess Langille Inman v. Abbott and Haliburton [2015] S.C.C 23
Decided January 30, 2015
“Expert reports should only be excluded for want of impartiality in the clearest of cases.”
Supreme Court of Canada
The Supreme Court of Canada upheld a decision of the Nova Scotia Court of Appeal, which reversed the decision of a motions judge to exclude an expert report of a Grant Thornton LLP accountant dealing with alleged negligence on the part of the defendant accounting firm, White Burgess Langille Inman. The allegation was that the expert was not impartial, as another office of Grant Thornton LLP had done accounting work for the Plaintiff which might induce the accountant to tailor her evidence. The Supreme Court of Canada ruled that once an expert attests or testifies under oath, the burden is on the party opposing the admission of the evidence to show that there is a real concern that the expert’s evidence should not be admitted for their failure to comply with that duty. The Court held that a trial judge should apply the 4 elements of the Mohan test and then “determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court.”
Submitted by: David A. Bertschi, a founding partner at Bertschi Orth Solicitors & Barristers LLP, a Canadian Insurance and Commercial Litigation Boutique in Ottawa, Ontario, Canada.