For expert evidence to be admissible, it must be: (a) relevant;
(b) necessary to assist the trier of fact; (c) it must not be
subject to any exclusionary rules; and (d) the expert must be
properly qualified (R. v.
Earlier this month, in Meady v. Greyhound Canada
Transportation Corp., the Ontario Court of Appeal
examined a trial judge's decision to exclude expert evidence
for failing to meet the second requirement of necessity. The Court
of Appeal ultimately upheld the trial judge's decision and
noted in its reasons that there has been a growing recognition of
the responsibility of the trial judge to exercise a more robust
"gatekeeper" role in the admission of expert
The case arose from a sad set of facts. 21-year old Shaun Davis
was on a bus trip from Calgary to spend Christmas with his family
in Pictou, Nova Scotia. On a leg of the journey in northern
Ontario, Davis left his seat at the front of the bus, ignored the
driver's requests that he return to his seat, then, suddenly,
lunged at the driver and grabbed the steering wheel. The bus veered
off the road and toppled on its side. One person was killed and
many of the 32 passengers were injured.
A number of passengers sued Greyhound
and the bus driver, the two OPP officers who had contact with Davis
before he boarded the bus, and their employer, Her Majesty the
Queen in Right of Ontario. They also sued Davis.
After a trial lasting more than 60
days, the trial judge dismissed the action against all defendants,
other than Davis.
The trial judge rejected the argument
that the officers should have detained Davis or that the OPP did
not adequately train the officers to respond to people with mental
illness. The trial judge also found the appellants had not
established that the driver failed to exercise reasonable care and
skill in the operation of the bus or that Greyhound had failed to
properly train him. The driver had no reason to anticipate that
Davis would act as he did.
The plaintiffs appealed on the basis
that the trial judge erred by excluding the evidence of two expert
witnesses, one a specialist in police training and the other an
expert in bus safety.
The specialist in police training
was going to offer the opinion that the police officer failed to
meet the standard of care of a reasonable and prudent police
officer by failing to follow police practices. The trial judge
concluded that he did not require expert opinion in this case. He
observed that the police policies and procedures could be adduced
in evidence and that the officers could be cross-examined on their
The expert in bus safety had experience
as an accident investigator and in drafting policies and standards
for training bus operators. The trial judge found that the bus
safety expert's opinion was also not necessary: expert evidence
was not needed to determine what the driver knew or ought to have
known regarding his duties as an operator, nor to determine the
appropriate speed of the bus in relation to road conditions, the
steps that the driver should have taken when Davis came to the
front of the bus, how he ought to have reacted to Davis grabbing
the wheel, or what other steps he ought to have taken to avoid the
The appeal was dismissed. Expert
evidence is only necessary where subject matter of the inquiry is
outside of the normal experience of a judge or jury. There is,
however, no bright line between what is and what is not within the
normal experience of the trier of fact, and for this reason, the
Court of Appeal affirmed that much deference is owed to the
exercise of the trial judge's gatekeeper function. In this
case, the Court of Appeal found that the trial judge properly
exercised that function.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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