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EVIDENCE
NECESSITY KEY COMPONENT FOR EXPERT EVIDENCE
An expert’s proposed evidence must be more than just helpful. The test for admissibility is not whether the evidence is very helpful, but rather whether it is necessary.
See Smith
v. Inco Limited (November 13, 2009 Henderson J. (Ont. S.C.J.))
EXPERT NEED NOT HAVE POSSESSED EXPERTISE AT THE TIME THE CAUSE OF ACTION AROSE
A Superior Court Justice has ruled that a proposed expert may be permitted to give an opinion notwithstanding that he did not have the expertise to provide such an opinion at the time the cause of action actually arose.
In Cleveland v. Hamilton Health Sciences Corporation (October 28, 2009 Lax J. (Ont. S.C.J.)) the plaintiffs tendered an expert witness to give opinion evidence in the field of biochemical genetics and the standard of care as it related to the issues in the trial. The defendant accepted that the expert was abundantly qualified as of the date of trial, but submitted that he was not qualified to give opinion evidence as to the standard of care in 1996 (the relevant time of the cause of action) as he was not qualified as a biochemical geneticist until 2002. Lax J. ruled that his evidence was admissible.
The judge cited the leading case of Regina v. Mohan, and noted that for expert evidence to be admissible, it must be relevant and necessary, not offend any exclusionary rule, and be given by a properly qualified expert. A properly qualified expert is a witness who is shown to have special or peculiar knowledge thorough study or experience in respect of the matters on which he or she undertakes to testify.
After reviewing further authorities, the judge ruled that the essential criterion for the qualification of an expert is that the witness has special skill in the subject-matter at issue whether acquired from studies or experience or both.
The essence of the defendant’s objection was that the expert (who was now highly qualified in the field of biochemical genetics, having become a medical doctor in 1993 and completing a fellowship in medical biochemistry in 1998) could only provide an opinion retrospectively as he was not “on the scene at the time”. As the standard of care in medicine changes, it was argued that there was a grave risk that a witness who was not qualified at the relevant time will not give evidence that is reliable.
However, Lax J. ruled that although the expert was not yet fully trained at the time of the events which were the subject of the litigation, his subsequent training through his interaction with clinicians and colleagues who did practice at the time, his study of medical literature and practices over the years and his central role in redesigning a Ontario Newborn Screening Program, equipped him with the requisite expertise to express an opinion on both laboratory and clinical practices as they are today and as they were in 1996. Any deficiency in his expertise went to weight, not admissibility.
Click here to review the full text decision in Cleveland v. Hamilton Health Sciences Corporation (October 28, 2009 Lax J. (Ont. S.C.J.)).