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Published in the July 2009 issue of Litigation Notes - View Article
Ontario Superior Court of Justice admits the expert evidence of engineers to the effect that a safe door was probably already open when it was allegedly forced open
The Ontario Superior Court of Justice recently considered, yet again, the admissibility of expert evidence.
The Plaintiffs, Guiseppe and Julia Tavernese, claimed that their home had been burgled and were seeking to recover from the Defendant, Economical Mutual Insurance, under an insurance policy. The Plaintiff alleged that the majority of items were stolen from a locked wall safe. When authorities arrived, the safe door had been removed.
The Plaintiffs argued that only they knew the combination for the safe and that it was closed and locked when they left. The Defendant insurer wanted to call the evidence of two mechanical engineers, to establish that the safe door was open when it was removed from the safe. This would mean either that the door was left open by the Plaintiffs, or that the burglar(s) knew the code for the safe. Either alternative pointed to the possibility that the Plaintiffs were complicit in the burglary.
Both experts concluded that the damage to the safe door had been inflicted when the door was already open and that the damage to the safe was inconsistent with forced entry. The Plaintiffs argued that neither witness should be considered an expert as they were not qualified by education or experience. Plaintiffs’ counsel cited Sopinka et al, The Law of Evidence in Canada, which states that an expert witness must possess “special knowledge and experience going beyond a trier or fact”. The expert must possess knowledge that a lay person (in this case the judge and jury) would not know.
He also cited Dulong v. Merrill Lynch Canada Inc. which emphasizes the gatekeeper role of the trial judge. In that case the court referred to the fact that the “path of least resistance” is to admit expert evidence and then to compensate for its weaknesses by according it less weight. This however is an “abdication of the proper function of a trial judge” and was rejected by the Supreme court of Canada in R. v. J. (J-L), where Binnie J. said: “…the Court has emphasized that the trial judge should take seriously the role of “gatekeeper”. The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility. Of course, this gatekeeper function directly collides with the general requirement that the parties to an action must be afforded the opportunity to lead the most complete evidentiary record consistent with the rules of evidence. This fundamental tension can only be resolved by the careful and consistent application of the rules of evidence”.
The Court also considered the Report of the Inquiry into Pediatric Forensic Pathology in Ontario (2009) which was written by Justice Stephen Goudge. That inquiry was prompted by the work of forensic pathologist Charles Smith, whose autopsies on children resulted in parents and caregivers being wrongly accused and in some cases convicted of abusing or killing their children. Justice Goudge’s report referred to two methods in use by trial courts to determine the admissibility of expert evidence: “One method is for counsel to provide a summary of the proposed evidence as the basis for the judge’s decision. That summary might consist of a “will-say” statement, the expert’s report, and/or the testimony given at the preliminary hearing. Jurisprudence has encouraged the adoption of this approach where additional oral evidence is not necessary to resolve the admissibility issues. The second method involves the hearing of evidence, including that of the proposed expert witness, before a decision is made whether to admit the evidence. If the debate is confined to the particular witness’s qualifications or expertise to give evidence, that voir dire often takes place in the presences of the jury, where the voir dire is more extensive, and the expert’s ultimate opinion will be referred to, the jury will generally be excluded”.
The Defendant’s lawyer proposed that the first method be used to assess the evidence of the expert witnesses. Plaintiff’s counsel objected that there ought to be cross-examination. The judge ruled that a voir dire would take place, and decided to exclude the jury as the challenge was not only regarding the experts’ qualifications. The examination and cross-examinations were completed in the absence of the jury.
Relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule, and a property qualified expert, form the four part test for determining the admissibility of expert evidence, as set out in the decision of the Supreme Court of Canada in R. v. Mohan. Relevance and the absence of an exclusionary rule were conceded. Argument focussed on necessity and qualifications.
The judge concluded that the expert evidence in this case met the test of necessity. He stated: “Neither I as a trial judge nor the jury as the triers of fact have the technical knowledge to interpret the damage to the safe that would allow us, as lay people, to draw reasonable conclusions about how the door came to be removed from the safe”.
As to qualifications, the Court referred to the fact that an expert must have “specialized knowledge” that goes beyond the knowledge of the trier of fact. The “specialized knowledge” does not, however, have to come from formal academic training…” In the 1912 case of Rice v. Sockett, the Court said: “The derivation of the term “expert” implies that he is one who by experience has acquired special or peculiar knowledge of the subject of which he undertakes to testify, and it does not matter whether such knowledge has been acquired by study of scientific works or by practical observation. Hence, one who is an old hunter, and has thus had much experience in the use of firearms, may be as well qualified to testify as to the appearance which a gun recently fired would present as a highly-educated and skilled gunsmith.”
The Plaintiffs argued that one of the experts had only worked on one other safe during her career and the other had never worked on a safe during his time as a forensic engineer and that consequently, they could not be considered experts. The judge stated “in my opinion such a narrow definition of expertise is not required by the Mohan rules in order for an expert to be qualified to give evidence that meets the test of necessity… Both experts testified that the safe in question was a simple mechanical structure and special technical expertise was not required for them to determine the way in which the door was removed from the safe”.
The expert evidence was admitted.
Tavernese v. Economical Mutual Insurance, 2009 CanLII 28405