Johnstone Estate v Johnstone 2019 BCSC 2149 dealt with the admissibility of expert’s reports. The court ruled that the geriatric psychiatrist report would not be admissible as it offended various rules relating to the admissibility of expert reports, some of which were technical and some of which were substantial of, including:
- Rule 11-(6)(c)- the instructions that the doctor received from the instructing lawyer were referred to, but not provided. Rule 11-7(1) states that in such a circumstance, the report cannot be admitted;
- Rule 11 – 6(1)(f) – the Dr. did not set out a description of the facts and assumptions upon which his opinion is based. He reviewed a series of medical records, opinions, assessments and other documents that were provided to him, and relied on their accuracy in formulating his opinion. He did not state which documents he relied on in coming to his conclusions. In short, he relied upon unproven and untested opinion of others as a basis for and to arrive in his opinion.
- Several passages of his report straight into advocacy and argument;
- The Drs. comments on execution of the will as being a regular and setting up an unbalanced influence on the deceased in favor of the beneficiary, essentially amounted to making a suspicious circumstance argument in the guise of an opinion;
- The opposing counsel demanded that the geriatric psychiatrist be produced at trial for cross examination, but the opposing counsel did not inform Dr. Sheldon of the trial date, or attempt to contact them until the second day of trial, upon which the doctor could not be located;
- The reports tone suggests a cloud of bias, and without the benefit and scrutiny of cross examination, it was impossible to lift that cloud.
- The doctor made findings of credibility;
- The report did not meet the threshold test of reliability and was of questionable assistance to the court;
- The opinion was not based on the legal test for testamentary capacity, namely a baseline level of mental acuity or a disposing mind and memory, and sufficient to appreciate and comprehend the nature and effect of the essential elements of the testamentary act. This encompasses an appreciation of the claims of the persons who are the natural objects of an estate and the extent of the property that is being disposed of
- The court concluded that were the report was more of an aide memoir, then an independent, objective expert opinion
The test for admissibility of expert reports was set out by the Supreme Court of Canada in White Burgess v Abbott and Haliburton 2015 SCC 23.
There is a threshold to meet – that of necessity and reliability. Of the two the most important is that the proffered expert opinion must meet the threshold of necessity.
At paragraphs 18, 23 – 24 the SCC stated :
18. “The point is to preserve trial by judge and jury, not to devolve to trial by expert.– The risk of attornment to the opinion of the expert is also exacerbated by the fact that expert evidence is resistant to effective cross examination by counsel who are not experts in that field. The cases address a number of other related concerns: the potential prejudice created by the experts reliance on unproven material not subject to cross-examination, the risk of admitting junk science, and the risk that a contest of experts to tracks rather than assists the trier of fact. Another well-known danger associated with the admissibility of expert evidence is that it may lead to an inordinate expenditure of time and money “
23. At the first step, the proponent of the expert evidence must establish the threshold requirements of admissibility. There are four factors: relevance, necessity, absence of an exclusionary rule and a properly qualified expert) , and in addition, in the case of an opinion based on novel or contested science or science used for a novel purpose, the reliability of the underlying science for that purpose. Relevance of this threshold stage refers to logical relevance. Evidence this is not meet these threshold requirement should be excluded. Necessity is also a threshold requirement.
24. The judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. It has been summed up as” the trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission, despite the potential harm to the trial process that may flow from the admission of the expert evidence”
The burden of meeting the admissibility test is on the proffering party.