Archive for the ‘evidence’ Category

Elizabeth F. Judge, “Curious Judge: Judicial Notice of Facts, Independent Judicial Research, and the Impact of the Internet”

January 10, 2013

Elizabeth F. Judge (University of Ottawa – Faculty of Law (Common Law)) has posted “Curious Judge: Judicial Notice of Facts, Independent Judicial Research, and the Impact of the Internet”, Annual Review of Civil Litigation, pp. 325-350, Honourable Mr. Justice Todd L. Archibald Superior Court of Justice (Ontario) and the Late Honourable Mr. Justice Randall Scott Echlin, eds., 2012. The abstract reads:

Judicial notice allows uncontroversial facts to be established without evidentiary proof. The facts must either themselves be beyond dispute because they are “notorious” (that is, generally known within the community) or they must be able to be referenced in easily accessed sources whose accuracy is beyond dispute. Judicial notice is an especially vexing topic because it goes to the heart of the epistemological inquiry of the adversarial process and the nature of the judicial function. Judicial notice implicates the allocation of responsibilities for fact finding between the parties and the court, between the judge and the jury, between the court of first instance and the appellate bodies, and between the courts and the legislature; how fact finders engage in ordinary reasoning processes to decide what a fact is; the distinction between adjudicative and legislative facts and their respective roles; and due process concerns for one or both parties. The rules governing judicially noticed facts are especially sensitive because whenever a fact is judicially noticed it is not subject to the ordinary processes for testing evidence, such as oaths and cross examination, and thus the rules implicate concerns about fairness to the parties and accuracy. For a common law precedential system, these concerns are particularly acute.

Drawing on American and Commonwealth commentators, this article provides a detailed analysis of the general theory and policy of judicial notice and the role of judicial notice in the adversarial system. The article then turns to a discussion of the practice of independent judicial research and an examination of the impact of the internet on judicial notice. The article analyses the laws and policies governing judicial notice of facts and independent judicial research in Canada and the Supreme Court of Canada’s legal framework. It examines independent judicial research and, most pertinently for modern practices of judicial notice, appropriate uses of internet search tools and online sources in the context of judicial notice. It considers how the internet is affecting key aspects pertaining to the judicial notice of facts: first, what “notoriety” and “community” mean; and second, what counts as an authoritative reference. The paper concludes by addressing how the internet, including search engines and online content, may affect the traditional framework for judicial notice of facts.

A copy of the paper is available for download via SSRN here.

Cherry Picking at the Supreme Court of Canada: R. v. Cole

October 19, 2012

Today’s decision by the Supreme Court of Canada in R. v. Cole 2012 SCC 53 (S.C.C.) addresses the constitutional scope of the reasonable expectation of privacy based on unreasonable search and seizure under s. 8 of the Charter. By a 6-1 majority, the Court concluded that a warrantless search and seizure of laptop computer and disc containing Internet files breached the accused’s rights under s. 8 of Charter, but ought not to have been excluded pursuant to s. 24(2) of Charter. (more…)

Admissibility of Expert Evidence

May 9, 2012

judge and expert witness

Today’s decision of the Court of Appeal for Ontario in Alfano v. Piersanti, 2012 ONCA 297 contains a useful summary of the legal test for admissibility of expert evidence:

[103] Expert evidence is an exception to the general rule barring opinion evidence. In R. v. Mohan, [1994] 2 S.C.R. 9, the Supreme Court of Canada set out the four criteria for the admissibility of expert evidence: 1) relevance, 2) necessity in assisting the trier of fact, 3) the absence of any exclusionary rule, and 4) proper qualification. The party tendering expert evidence has the burden to satisfy the four Mohan criteria on a balance of probabilities.

[104] In discussing the second criterion at pp. 23, 24 of Mohan, the Supreme Court referred to the concept of helpfulness to a trier of fact. The court concluded that the appropriate test for necessity is whether the expert is capable of assisting the trier by providing information likely to be beyond the trier’s knowledge and experience.

[105] In determining whether an expert’s evidence will be helpful, a court will, as a matter of common sense, look to the question of the expert’s independence or objectivity. A biased expert is unlikely to provide useful assistance.

[106] Courts have taken a pragmatic approach to the issue of the independence of expert witnesses. They have recognized and accepted that experts are called by one party in an adversarial proceeding and are generally paid by that party to prepare a report and to testify. The alignment of interest of an expert with the retaining party is not, in and of itself, a matter that will necessarily encroach upon the independence or objectivity of the expert’s evidence.

[107] That said, courts remain concerned that expert witnesses render opinions that are the product of their expertise and experience and, importantly, their independent analysis and assessment. Courts rely on expert witnesses to approach their tasks with objectivity and integrity. As Farley J. said in Bank of Montreal v. Citak, [2001] O.J. No. 1096, “experts must be neutral and objective [and], to the extent they are not, they are not properly qualified to give expert opinions.”

[108] When courts have discussed the need for the independence of expert witnesses, they often have said that experts should not become advocates for the party or the positions of the party by whom they have been retained. It is not helpful to a court to have an expert simply parrot the position of the retaining client. Courts require more. The critical distinction is that the expert opinion should always be the result of the expert’s independent analysis and conclusion. While the opinion may support the client’s position, it should not be influenced as to form or content by the exigencies of the litigation or by pressure from the client. An expert’s report or evidence should not be a platform from which to argue the client’s case. As the trial judge in this case pointed out, “the fundamental principle in cases involving qualifications of experts is that the expert, although retained by the clients, assists the court.”

[109] The report of the Goudge Inquiry, Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Ontario Ministry of the Attorney General: 2008), at p. 503, noted the importance of expert witness independence, quoting the principles described by the Court of Appeal of England and Wales in R. v. Harris and others, [2005] EWCA Crim 1980, at para. 271:

(1) Expert evidence presented to the court should be and seen to be the independent product of the expert uninfluenced as to form or content by the exigencies of litigation.

(2) An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of advocate.

[110] In most cases, the issue of whether an expert lacks independence or objectivity is addressed as a matter of weight to be attached to the expert’s evidence rather than as a matter of the admissibility. Typically, when such an attack is mounted, the court will admit the evidence and weigh it in light of the independence concerns. Generally, admitting the evidence will not only be the path of least resistance, but also accord with common sense and efficiency.

[111] That said, the court retains a residual discretion to exclude the evidence of a proposed expert witness when the court is satisfied that the evidence is so tainted by bias or partiality as to render it of minimal or no assistance. In reaching such a conclusion, a trial judge may take into account whether admitting the evidence would compromise the trial process by unduly protracting and complicating the proceeding: see R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 91. If a trial judge determines that the probative value of the evidence is so diminished by the independence concerns, then he or she has a discretion to exclude the evidence.

[112] In considering the issue of whether to admit expert evidence in the face of concerns about independence, a trial judge may conduct a voir dire and have regard to any relevant matters that bear on the expert’s independence. These may include the expert’s report, the nature of the expert’s retainer, as well as materials and communications that form part of the process by which the expert formed the opinions that will be the basis of the proposed testimony: see R. v. INCO Ltd. (2006), 80 O.R. (3d) 594, at p. 607 (S.C.).[6]

[113] An appellate court will accord deference to a trial judge’s decision to exclude evidence of an expert on the basis that the proposed evidence lacks independence. On reviewing such a decision, an appellate court will look to whether the trial judge applied the proper legal principles and whether the trial judge’s conclusion was supported by the evidence. Absent such an error, an appellate court will not interfere.

[114] I would not interfere with the trial judge’s decision in this case. The trial judge had regard to the appropriate legal principles and there was ample evidence to support her conclusion that Mr. Anson-Cartwright’s proposed evidence lacked independence.

Incorrect Shifting of the Burden of Proof in Negligence Cases

October 5, 2011

Today’s judgment of the Court of Appeal for Ontario in Donley Investments Limited v. Canril Corporation, 2011 ONCA 625  reinforces the principle that the burden of proof in negligence cases remains with the plaintiff.

The defendants appealed the  judgment of Justice Monique Métivier of the Superior Court of Justice, following a 7 day trial, holding the defendants liable in negligence and nuisance for water damage caused to the basement of the plaintiff’s building. The plaintiff alleged that its basement suffered damage as a result of water flowing from the neighbouring property owned by the defendants.

The Court of Appeal concluded that the trial judge erred both in law and set aside the trial judgment and ordered a new trial based upon three significant legal errors.

First, the trial judge incorrectly shifted the burden of proof:

[5]              In our view there was nothing in the facts of this case that would justify shifting the burden of proof or finding what the trial judge described as a “presumption of negligence”: see Fontaine v. British Columbia (Office Administrator), [1998] 1 S.C.R. 424.

[6]              The respondent did not provide compelling evidence to demonstrate that the water had migrated from the appellants’ building to its own. Nor was there strong evidence of fault on the part of the appellants. We take the trial judge at her word that this was a case that turned on the burden of proof. By improperly shifting that burden and finding against the appellants on the basis that they had not rebutted a presumption of fault, the trial judge made a significant error of law.

Second, the trial judge improperly imposed a duty to assert a claim on behalf of the defendants/respondents against the city:

[9]              The appellants made a claim against the city for the damage to their basement and suggested to the respondent that it do the same. The respondent refused to do so. The trial judge found, at para. 108, that the appellants “had a duty to their neighbours to join them in [their] claim to ensure they could recover from the City for the damages caused by the open water main”. The trial judge held that this omission was “actionable on the basis of negligence.”  In the result, despite finding that the appellants had not negligently caused the damage to the respondent’s basement in February 2003, the trial judge, by way of this alleged duty, nonetheless, held the appellants liable in negligence to the respondent for the damage caused.

[10]         We fail to see how the appellants could have asserted a claim on behalf of the respondent. Nor do we see any legal basis for the trial judge’s imposition of a duty to assert such a claim. This error is fatal to any finding against the appellants with respect to the February 2003 infiltration.

Finally, the trial judge employed faulty causation analysis:

[11]         The trial judge erred in her causation analysis. In her reasons for judgment, she recognized that the evidence establishing a causal link between the damage to the respondent’s building and any fault or wrong committed by the appellants was not strong and certainly was not made out on the basis of expert or scientific evidence. In her analysis of the applicable law, the trial judge did not refer to the standard “but for” test for causation. Rather, she held, citing Athey v. Leonati, [1996] 3 S.C.R. 458, that causation could be established on the basis of material contribution to the occurrence of the injury that was greater than de minimis. In our view, the facts of this case do not justify deviating from the standard “but for” test for causation: Resurfice Corp. v. Henke, 2007 SCC 7, [2007] 1 S.C.R. 333. It follows that the trial judge erred in law by applying a more lenient test.

[12]         While all three errors specifically concern the trial judge’s finding of liability on the basis of negligence, we do not agree with the submission that the judgment can be sustained on the basis of nuisance alone. The trial judge expressly excluded liability for nuisance with respect to the most significant infiltration of water that occurred in late February 2003 for which the city was responsible.  We are unable to conclude that all of the damage to the respondent’s building resulted from the post-February 2003 infiltration or that none of it resulted from the February 2003 infiltration. Moreover, the judgment does not specify what quantum of damages flowed from each infiltration, and indeed, on the record before us, we are not persuaded that it would be possible to do so. As it is impossible to assign a specific quantum of damages to either the February 2003 negligence claim or to the post-February 2003 nuisance claim, the trial judge’s legal errors with respect to negligence are fatal.

Whether or not the Supreme Court of Canada will clarify the persistent analytical confusion between the “but-for” test and “material contribution” test remains to be seen. See my previous post: Clear as Mud: The Supreme Court of Canada to Clarify the Law of Causation

Staying Relevant

August 29, 2011
Evidence: fieldnotes

Image by Mónica, M via Flickr

In “Where’s the Proof?” , Scott Greenfield at Simple Justice addresses the disturbing trend among U.S. law schools in no longer making Evidence courses a compulsory part of the law school curriculum. Greenfield posits,

Is this really the limited understanding that new lawyers have of their profession? Can they possible think so small and grasp so little?

The teaching of evidence in law school is not in anticipation of someone being a litigator. Granted, it is absolutely required for a litigator, and especially for a trial lawyer, but that’s not where it ends. Knowledge and understanding of evidence is a core competency for every niche (read that clearly, every niche) in the practice of law. Yes, M&A. Even real estate closings and wills. Multinational contracts. You name it, you still need to know evidence. Why? Because every aspect of law entails a potential of dispute leading to litigation. Any lawyer who doesn’t comprehend evidence cannot competently perform his function.

If nothing else, the concepts of relevance and materiality are basic to thinking like a lawyer. If you don’t get them, you can’t think. You can’t reason. You can’t understand things the way a lawyer must.

The Canadian law school experience is disturbingly similar. (more…)


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