Family

Mounting cost of expert evidence an access-to-justice issue

By Kirsten McMahon, AdvocateDaily.com Managing Editor

Despite ongoing concerns over the cost and reliability of expert evidence, its use has become a routine aspect of family law litigation, says Toronto family lawyer Gary Joseph.

“With the expense of competing expert evidence adding to the already overwhelming costs of family litigation, its proper management has become an access-to-justice issue,” he tells AdvocateDaily.com.

Joseph, managing partner with MacDonald & Partners LLP, says since as early as 1994, the Supreme Court of Canada (SCC) has held that expert evidence must be subject to a ‘cost-benefit analysis’ to determine “whether its value is worth what it costs.”

Over the years, he says the SCC has repeatedly expressed concerns over both the cost and reliability of expert evidence, noting a 2000 decision where the court stated that “modern litigation has introduced a proliferation of expert opinions of questionable value.”

“In family law, where the costs of litigation are not generally financed by corporate bankrolls, these concerns are heightened, as this ‘proliferation’ of expensive expert evidence poses a significant barrier to access to justice,” Joseph says.

“Many families simply do not have the wherewithal to absorb expert fees which commonly exceed six figures. Where this evidence is of dubious value, the issue becomes all the more troubling,” he says.

Joseph points to a 2015 decision where Justice Thomas Cromwell discussed the duty owed to the court by expert witnesses, emphasizing that their opinion “must be independent in the sense that it is the product of the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation.”

To drive home this point, Joseph says Cromwell concluded that “the acid test is whether the expert’s opinion would not change regardless of which party retained him or her.”

“Although this pronouncement was made approximately four years ago, courts across Canada continue to struggle with expert witnesses and the frequent alignment of their opinions with the positions of the party who retained them,” Joseph notes. “In some cases, trial judges have openly wondered whether an expert’s opinion would be different if they had been retained by the party opposite.”

He explains that various efforts have been made across Canada to address these concerns.

“Some Canadian jurisdictions have approached the issue by amending the rules to encourage experts to meet and file joint reports setting out the differences in their respective opinions,” Joseph says. “Other jurisdictions have mandated joint expert reports, permitted the court to call its own experts, imposed limitations on the number of experts that may be called, or have sought to limit the nature of their evidence by discounting the value of so-called critique reports.

“By exploring various remedies, access to justice can be improved in family law matters involving expert evidence,” he adds.

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