Canada: Expert Evidence – Independence And Impartiality: A Quebec Perspective

Canadian Property Tax Association Inc

The expert's duty of impartiality and independence is well established in Quebec. In fact, the independence and impartiality of an expert are cornerstones in the assessment by the Court of the probative value of expert evidence:

"It is clearly established that the expert's main duty is to advise the Court by explaining its method of analysis; it is a duty that should prevail over the interests of the parties [...] it seemed important to codify the expert's duty as one of the guiding principles of civil procedure." [1][our translation]

In addition, the new Code of Civil Procedure (the "CCP") that came into force on January 1st, 2016, modernized and simplified the civil procedure in Quebec, emphasizing cost reduction, flexibility and proportionality. The new code brought significant changes to the rules relating to expert evidence. First and foremost, the CCP codified, as evidenced by article 22 CCP, the principle that an expert's primary mission is to enlighten the Court's understanding of complex issues rather than representing one party or the other:

Article 22. The mission of an expert whose services have been retained by a single party or by the parties jointly or who has been appointed by the court, whether the matter is contentious or not, is to enlighten the court. This mission overrides the parties' interests.

Moreover, the new Code provides for an enhanced system of checks and balances with respect to expert witnesses. Consistent with existing case law and the guiding principle of expert testimony set out at article 22 CCP, the new Code now expressly qualifies the expert's bias as sufficient ground for dismissal of the expert's report even before trial [2]:

Article 241. Before the trial begins, a party may apply for the dismissal of an expert report on the grounds of irregularity, substantial error or bias, in which case the application must be notified to the other parties within 10 days after the party becomes aware of the grounds for dismissing the report.

If the court considers the application well-founded, it orders that the report be corrected or that it be withdrawn. In the latter case, the court may allow other expert evidence to be appointed. It may also, to the extent it specifies, reduce the amount of the fee payable to the expert or order that the expert repay any amount already received.

As such, in deciding whether the expert acted independently, Quebec Courts take into account specific facts, such as the relationship between the expert and the parties at trial or any external fact likely to affect the objectiveness of the expert. For instance, in a case involving an expert witness who was a renowned activist and public opponent to different activities carried out by the defendant, the Court dismissed the expert's evidence given his previous activism and publicly held positions, which did not allow him to act objectively and independently as an expert witness.[3]

The principles of objectivity and impartiality of an expert were also upheld in a case involving an expert with close personal ties with one of the parties.[4] Article 22 CCP is crystal clear: experts must fulfill their mission objectively, impartially and thoroughly. As such, Quebec Courts will not admit a witness as an "expert" if previous relationships with one of the parties could lead to a lack of independence and bias in the Court's analysis.

While assessing expert's testimony, Quebec Courts always keep in mind the expert's mission, to wit, enlighten the Court. For instance, in a lawsuit regarding the conformity of a construction tender[5], the Court found that the expert did not provide any additional technical information or scientific data, was drawing legal conclusions, and thereby usurped the role of the Court. In short, submitting expert reports that do not enlighten the trier of facts is an irregularity that justifies the exclusion of the expert's testimony even before the trial begins.

Finally, with respect to an expert's duty of impartiality, Quebec courts generally leave the question of expert's bias to the trial on the merits of the case; courts will assign higher or lower probative value to an expert's testimony depending on the level of bias shown by the expert during trial or proven by the opposing party. However, following the adoption of the new Code, Quebec Courts seem more willing to exclude the expert's testimony for lack of independence, as occured in Droit de la famille – 152018 where the Court excluded the expert witness for biased opinion and lack of rigour in his report.[6]

Despite the changes brought by CCP, Quebec administrative tribunals, such as the Tribunal administrative du Québec (TAQ), generally refuse to reject the expert's reports at a preliminary stage, preferring to deal with issues of bias as an issue of probative value at the merits. For instance, in 9223-5613 Québec inc c. Laval (Ville)[7], the TAQ was faced with two expert assessors submitting two contradicting valuations. Instead of setting aside their reports, the TAQ preferred to deal with the question of bias after all of the expert's evidence was given. That being said, it is possible that the TAQ will follow the emerging practice of Civil Courts and will be more pro-active in excluding expert's evidence for lack of impartiality when more case law becomes available on the issue.

Footnotes

[1] Sarah D. Pinsonnault, `The Expert Witness`Duty to the Court and the Question of Independence and Impartiality", Case Common on Blogue du CRL, Jeune Barreau de Mont-réal, May 2015. See also White Burgess Langille Inman v. Abbot, 2015 SCC 23 at paras 26, 30 [White Burgess].

[2] Roy v. Québec (Procureure générale), 2016 QCCA 2063 (CanLII).

[3] 2758792 Canada inc. c. Bell Distribution inc., 2014 QCCS 123.

[4] Renault c. Parayre, 2009 QCCS 2967.

[5] Construction Savite Inc. c. Construction Demathieu & Bard (CDB) Inc., 2017 QCCS 579.

[6] Droit de la famille – 152018, QCCS 3825 at para 74.

[7] 9223-5613 Québec inc c. Laval (Ville), 2013 CanLII 55393 (QC TAQ).

This article was published in the September/October 2017 issue of the Canadian Property Tax Association Inc.

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.

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