Canada: The Unbiased Expert: Challenging the Admissibility of Expert Evidence in WBLI v. Abbott and Haliburton

Last Updated: May 11 2015
Article by Marco P. Falco

In yet another important decision this year affecting the preparation and use of expert evidence in litigation, the Supreme Court of Canada has established an analytical framework for determining the admissibility of expert evidence on the basis of the expert's alleged bias and lack of independence. The case of WBLI v. Abbott and Haliburton, 2015 SCC 23, per Cromwell J., establishes a two-part analysis for determining whether expert evidence ought to be admissible. The Court's analysis is based on the expert's principal duty to provide an objective and fair opinion.

The Facts

In WBLI v. Abbott and Haliburton, the shareholders of a corporation brought a professional negligence action against the former auditors of their company. The action arose after the shareholders retained a different accounting firm to perform certain accounting tasks (the "Auditing Firm"). In performing its duty, the Auditing Firm discovered problems with the defendant auditors' previous work. The basis for the action was that the defendant auditors failed to adhere to generally accepted accounting practices, which caused financial loss to the plaintiff shareholders.

The defendant auditors ultimately brought a motion for summary judgment to have the professional negligence action against them dismissed. In response, the shareholders retained an expert, a forensic accounting partner at another office of the Auditing Firm (the "Expert"). The Expert swore an affidavit confirming her opinion that the defendant auditors had failed to comply with their professional duties to the shareholders.

On the summary judgment motion, the defendant auditors applied to have the Expert's affidavit struck on the basis that she was not an impartial expert witness. That is, the defendants argued that because the Expert's firm and the Expert herself could be exposed to professional liability if her expert opinion were not accepted by the Court, the expert had a "personal financial interest" in the outcome of the action which rendered her unable from testifying on the summary judgment motion.

Ultimately, the Supreme Court of Canada held that the Expert was not in a conflict of interest that prevented her from giving impartial and objective evidence. In so doing, the Court refined its test for the admissibility of expert evidence in litigation.

The Principles

Justice Cromwell established the following principles in his decision:

1. An expert's independence and impartiality goes to admissibility and not simply to weight. The Court held that at Canadian common law, the independence and impartiality of the proposed expert speaks to the very admissibility of the evidence, not just to its weight. Canadian law supports the view that expert evidence should be ruled inadmissible due to the expert's lack of impartiality or independence.

2. Expert witnesses must meet a "threshold" of fair, objective and non-partisan opinion evidence. Expert witnesses have a duty to the Court to give fair, objective and non-partisan opinion evidence. In the leading decision regarding the admissibility of expert evidence, R. v. Mohan, [1994] 2 S.C.R. 9 ("Mohan"), the Supreme Court of Canada established the "threshold requirements" that must be established in order for the opinion evidence to be admissible, namely:

(a) relevance;

(b) necessity in assisting the trier of fact;

(c) absence of an exclusionary rule; and

(d) a properly qualified expert.

In WBLI, Justice Cromwell affirmed that evidence that did not meet these threshold requirements ought to be excluded. Most important, the Court held that the expert's duty to the Court to provide impartial evidence is to be assessed in part (d) of the Mohan analysis above, namely the "properly qualified expert" element of the test. Justice Cromwell states:

A proposed expert witness who is unable or unwilling to fulfill this duty to the court is not properly qualified to perform the role of an expert. Situating this concern in the "properly qualified expert" [stage of the Mohan test] ensures that the courts will focus expressly on the important risks associated with biased experts.

3. The Threshold Test for Admissibility Flows from the Expert's Duty to the Court.

The Court further held that the threshold test for admissibility flows from the duty of the expert to provide fair, objective and non-partisan evidence to the Court.

Accordingly, once the expert testifies on oath and recognizes his or her duty to the Court, the burden is on the party opposing the admission of the evidence to show that there is a "realistic concern that the expert's evidence should not be received because the expert is unable and / or unwilling to comply with that duty". If the opponent of the evidence does so, the burden to establish on a balance of probabilities that this aspect of the admissibility threshold remains on the party proposing to call the evidence. If this is not done, the evidence and any part of it that is impartial or lacks independence, ought to be excluded.

In adopting this approach, the Court noted that this threshold requirement was not particularly onerous and it would be "quite rare" that a proposed expert's evidence would be ruled inadmissible on this basis. For example, if the expert had a mere employment relationship with the party calling the evidence, this did not necessarily give rise to admissibility concerns. However, where the expert has a direct financial interest in the outcome of the action, where the expert has a "close familial relationship" with one of the parties, where the expert could incur professional liability if his or her opinion is not accepted by the Court, and where the expert assumes the role of advocate for a party and is clearly unwilling to carry out her primary duty to the Court, the Court may have concerns about the admissibility of such expert testimony.

4. The Court must engage in an additional "gatekeeping" role after the threshold inquiry has been met. The Court further held that a mere finding that the expert evidence meets the basic threshold set out above does not end the inquiry. Once the threshold is met, concerns about an expert witness' independence or impartiality should be considered as "part of the overall weighing of the costs and benefits of admitting the evidence". At this stage in the analysis, relevance, necessity, reliability and absence of bias "can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence". The judge must be satisfied that the helpfulness of the expert evidence is not outweighed by any dangers associated with expert evidence.

Application to the Facts

Based on the analysis above, the Court in WBLI ultimately held that the evidence of the Expert in this case was admissible on the defendant's motion for summary judgment.

First, the Expert specifically recognized that she was aware of the standard and requirements of the Court that an expert be independent.

Second, the Expert was not in an irreconcilable conflict of interest as the defendant auditors alleged. There was no suggestion in the evidence here that the expert's firm, i.e. the Auditing Firm, was hired to take a position dictated to it by the plaintiff shareholders; moreover, the possibility of the Auditing Firm being liable to the shareholders if its opinion was not ultimately accepted by the Court was nothing more than a "speculative possibility" in the Court's view. There was no finding that the Expert was biased or that she was advocating on behalf of the shareholders.

Third, the Expert did not lack impartiality because she had incorporated into her opinion some of the work done by the Auditing Firm when it was initially retained by the shareholders. There is nothing objectionable about an expert relying on the work of other professionals to reach her opinion.

Accordingly, in this case, Justice Cromwell held that there was nothing to suggest that the Expert was unwilling to provide the Court with fair, objective, non-partisan evidence.

The decision in WBLI adds two important aspects to the law of expert evidence. First, an expert's neutrality affects the admissibility of her evidence, not just the weight the Court should give to it. Second, the circumstances will be rare where an expert is disqualified for an alleged bias or lack of impartiality.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Marco P. Falco
Similar Articles
Relevancy Powered by MondaqAI
Rogers Partners LLP
WeirFoulds LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Rogers Partners LLP
WeirFoulds LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions