Preventing Life Sentences by Expert Evidence in Catastrophic Injury Law
[Last Edit: June 25, 2022]
Flawed expert evidence induces miscarriages of justice. In catastrophic injury cases, such flawed evidence may effectively impose wrongful life sentences of avoidable pain and suffering.
In October 2018, we submitted a proposed change to the Ontario Rules of Civil Procedure to exclude expert opinion evidence which goes beyond questions of fact and into questions of mixed law and fact. This proposal was rejected by the research arm of the Committee in April and December 2021 for the apparent reason that it was beyond the scope and function of the Committee.
As the option of amending the Rules to prevent expert-induced miscarriages of justice appeared to be closed, we considered intervention on an appropriate case before the Ontario Court of Appeal, or preferably the Supreme Court of Canada before its leave to appeal is decided, seeking ultimately for a restatement that expert opinion evidence, as discussed in R. v. Mohan, is to be restricted to only factual opinion evidence, not evidence on issues of mixed law and fact.
In February 2022, an opportunity arose for us to seek intervention before the Supreme Court of Canada following the Ontario Court of Appeal decision in St. Marthe v. O'Connor. Despite having been cautioned that it is exceedingly rare that intervention is granted to an intervener before leave to appeal has been granted, we decided to file our motion for intervention. Ultimately, however, the Court dismissed the leave to appeal application, and accordingly, our intervention application was also dismissed. The issue of whether opinion evidence on a question of mixed law and fact is inadmissible appears to us to remain to be heard in a more appropriate case before the Supreme Court of Canada where the courts below have "a concrete and well-developed factual setting" and "have the benefit of the contending points of view of those most directly affected by the issues": British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27, headnotes. In retrospect, our motion for intervention appeared to have amounted to seeking public interest standing to litigate in the final stage of litigation, namely before the final court of appeal in the country, where none of the litigants has identified the issue below, let alone benefited the courts below or a proposed Supreme Court panel with contending points of view. As such, it now appears to us that the Supreme Court of Canada would have had no choice but to leave the issue to a different case, regardless of any merits on the issue.
The gist of our argument that opinion evidence of mixed law and fact must be clearly banned is based on unanimous (9-0) Supreme Court jurisprudence, last discussed in R. v. Fisher, [1961] SCR 535, which explicitly so stated, and which was not directly cited nor discussed by Mohan. Accordingly, Mohan might not have intentionally overruled Fisher as to authorize opinion evidence on mixed law and fact. For a more detailed discussion, click to read our analysis in our Motion Record and our Reply to the Response of a respondent. Since the preparation of our Motion Record, we would, in the future, consider citing Hamilton v. Bluewater Recycling Association, 2016 ONCA 805 CanLii, as a better example of a case, than even Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265 (CanLII) which we discussed in our Motion Record, where a wrongful civil verdict and a wrongful life sentence of suffering on a paralyzed victim may have actually materialized as a result of flawed expert evidence, where an expert was permitted to provide opinion evidence on what a reasonable motorist would have done immediately before a collision. A reasonable motorist involves a quintessential underlying legal test, namely the notoriously amorphous legal fiction of a "reasonable" man or woman, and such opinion evidence therefore involves a question of mixed law and fact, and ought not to have been permitted. In our respectful view, the Court of Appeal overlooked Fisher and misapplied Mohan.
Writing in Mohan, Sopinka J. appeared to have not thought that it was necessary to clearly state this obvious, axiomatic restriction on expert opinion evidence as the first criterion, although he did refer to the implied context of the "fact-finding" process, and assistance for the trier of "fact". This restriction is much more clearly set out in the seminal textbook on evidence bearing his name as to leave no reasonable doubt that common law expert opinion evidence can not be on any issue but fact alone (see Sopinka, Lederman, Bryant: The Law of Evidence in Canada, LexisNexis Butterworths, 2nd Ed. 1997, Chapter 12, commencing para. 12.25). Unfortunately, however, when the less-than-direct references to this restriction on expert evidence are overwhelmed by his direct restatement in Mohan that there is no longer a general prohibition against expert opinion evidence on an "ultimate issue", an inevitable result follows, namely that the restriction is overlooked, hence wrongly lifted, by many legal professionals and lawmakers inadvertently.
This oversight has contributed to subsequent jurisprudence where experts are routinely permitted to opine on the very legal disputes (overwhelmingly of mixed law and fact in nature) being adjudicated by triers of fact (juries and judges) and statutory decision makers at various tribunals. Some of such jurisprudence has been discussed in our submission to the Rules Committee above. Since our above submission, we also uncovered similar jurisprudence, for example, at the Ontario Municipal Board, and the Local Planning Appeal Tribunal (LPAT) which are continued in 2021 as the Ontario Land Tribunal. There, experts have practically become statutory adjudicators before this Tribunal, without of course having been delegated statutory authority to do so by the Ontario Legislature. Its jurisprudence is both settled and entrenched where experts are not just routinely permitted but are expected to opine even as to what is in "the public interest"! (See for example, Canadian Rental Development Services Inc. v. Ottawa (City), 2021 CanLII 770 (ON LPAT), para. 44.) What is in the public interest has always been a complex matrix of law and fact, often further intertwined with policy, discretion and assessment of credibility of witnesses which are exclusively vested in judges, juries, or statutory decision makers. Public interest is a question of mixed law and fact, and has been authoritatively confirmed by the Divisional Court on juridical review of a case from the tribunal. But Mohan continues to provide cover for its current jurisprudence in admitting expert evidence on the ultimate issue of mixed law and fact.
(For some further general reading on the background research, in addition to our Motion Record, read discussion on this systemic issue of flawed expert evidence at this link to the Canadian Centre for Excellence in Injury Justice webpage: https://injurylawcentre.ca/flawed-expert-evidence-on-law.html.) For a potential test case to challenge excessive reliance on flawed expert evidence, consider information at this link: https://injurylawcentre.ca/test-case-to-exclude-expert-evidence-on-law.html.)
[Last Edit: June 25, 2022]
Flawed expert evidence induces miscarriages of justice. In catastrophic injury cases, such flawed evidence may effectively impose wrongful life sentences of avoidable pain and suffering.
In October 2018, we submitted a proposed change to the Ontario Rules of Civil Procedure to exclude expert opinion evidence which goes beyond questions of fact and into questions of mixed law and fact. This proposal was rejected by the research arm of the Committee in April and December 2021 for the apparent reason that it was beyond the scope and function of the Committee.
As the option of amending the Rules to prevent expert-induced miscarriages of justice appeared to be closed, we considered intervention on an appropriate case before the Ontario Court of Appeal, or preferably the Supreme Court of Canada before its leave to appeal is decided, seeking ultimately for a restatement that expert opinion evidence, as discussed in R. v. Mohan, is to be restricted to only factual opinion evidence, not evidence on issues of mixed law and fact.
In February 2022, an opportunity arose for us to seek intervention before the Supreme Court of Canada following the Ontario Court of Appeal decision in St. Marthe v. O'Connor. Despite having been cautioned that it is exceedingly rare that intervention is granted to an intervener before leave to appeal has been granted, we decided to file our motion for intervention. Ultimately, however, the Court dismissed the leave to appeal application, and accordingly, our intervention application was also dismissed. The issue of whether opinion evidence on a question of mixed law and fact is inadmissible appears to us to remain to be heard in a more appropriate case before the Supreme Court of Canada where the courts below have "a concrete and well-developed factual setting" and "have the benefit of the contending points of view of those most directly affected by the issues": British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27, headnotes. In retrospect, our motion for intervention appeared to have amounted to seeking public interest standing to litigate in the final stage of litigation, namely before the final court of appeal in the country, where none of the litigants has identified the issue below, let alone benefited the courts below or a proposed Supreme Court panel with contending points of view. As such, it now appears to us that the Supreme Court of Canada would have had no choice but to leave the issue to a different case, regardless of any merits on the issue.
The gist of our argument that opinion evidence of mixed law and fact must be clearly banned is based on unanimous (9-0) Supreme Court jurisprudence, last discussed in R. v. Fisher, [1961] SCR 535, which explicitly so stated, and which was not directly cited nor discussed by Mohan. Accordingly, Mohan might not have intentionally overruled Fisher as to authorize opinion evidence on mixed law and fact. For a more detailed discussion, click to read our analysis in our Motion Record and our Reply to the Response of a respondent. Since the preparation of our Motion Record, we would, in the future, consider citing Hamilton v. Bluewater Recycling Association, 2016 ONCA 805 CanLii, as a better example of a case, than even Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265 (CanLII) which we discussed in our Motion Record, where a wrongful civil verdict and a wrongful life sentence of suffering on a paralyzed victim may have actually materialized as a result of flawed expert evidence, where an expert was permitted to provide opinion evidence on what a reasonable motorist would have done immediately before a collision. A reasonable motorist involves a quintessential underlying legal test, namely the notoriously amorphous legal fiction of a "reasonable" man or woman, and such opinion evidence therefore involves a question of mixed law and fact, and ought not to have been permitted. In our respectful view, the Court of Appeal overlooked Fisher and misapplied Mohan.
Writing in Mohan, Sopinka J. appeared to have not thought that it was necessary to clearly state this obvious, axiomatic restriction on expert opinion evidence as the first criterion, although he did refer to the implied context of the "fact-finding" process, and assistance for the trier of "fact". This restriction is much more clearly set out in the seminal textbook on evidence bearing his name as to leave no reasonable doubt that common law expert opinion evidence can not be on any issue but fact alone (see Sopinka, Lederman, Bryant: The Law of Evidence in Canada, LexisNexis Butterworths, 2nd Ed. 1997, Chapter 12, commencing para. 12.25). Unfortunately, however, when the less-than-direct references to this restriction on expert evidence are overwhelmed by his direct restatement in Mohan that there is no longer a general prohibition against expert opinion evidence on an "ultimate issue", an inevitable result follows, namely that the restriction is overlooked, hence wrongly lifted, by many legal professionals and lawmakers inadvertently.
This oversight has contributed to subsequent jurisprudence where experts are routinely permitted to opine on the very legal disputes (overwhelmingly of mixed law and fact in nature) being adjudicated by triers of fact (juries and judges) and statutory decision makers at various tribunals. Some of such jurisprudence has been discussed in our submission to the Rules Committee above. Since our above submission, we also uncovered similar jurisprudence, for example, at the Ontario Municipal Board, and the Local Planning Appeal Tribunal (LPAT) which are continued in 2021 as the Ontario Land Tribunal. There, experts have practically become statutory adjudicators before this Tribunal, without of course having been delegated statutory authority to do so by the Ontario Legislature. Its jurisprudence is both settled and entrenched where experts are not just routinely permitted but are expected to opine even as to what is in "the public interest"! (See for example, Canadian Rental Development Services Inc. v. Ottawa (City), 2021 CanLII 770 (ON LPAT), para. 44.) What is in the public interest has always been a complex matrix of law and fact, often further intertwined with policy, discretion and assessment of credibility of witnesses which are exclusively vested in judges, juries, or statutory decision makers. Public interest is a question of mixed law and fact, and has been authoritatively confirmed by the Divisional Court on juridical review of a case from the tribunal. But Mohan continues to provide cover for its current jurisprudence in admitting expert evidence on the ultimate issue of mixed law and fact.
(For some further general reading on the background research, in addition to our Motion Record, read discussion on this systemic issue of flawed expert evidence at this link to the Canadian Centre for Excellence in Injury Justice webpage: https://injurylawcentre.ca/flawed-expert-evidence-on-law.html.) For a potential test case to challenge excessive reliance on flawed expert evidence, consider information at this link: https://injurylawcentre.ca/test-case-to-exclude-expert-evidence-on-law.html.)