Junk Expert Evidence: Keep Out!

Despite warnings from the Supreme Court of Canada, trial judges remain all too willing to allow supposed “experts” to give opinion evidence on all manner of matters which do not fall within their clear area of expertise.  I have seen this happen in accident and injury cases in our courts in Newfoundland and Labrador, and it not only wastes court time but exposes parties to the risk that unreliable expert evidence will influence the result.

A recent decision of the Court of Appeal in Ontario has strongly disagreed with this “let it all in” approach.  The case arose out of a road crash in which the plaintiffs were riding a tandem bicycle.  After going down a hill, crossing a bridge and going up another short hill, the husband lost control of the tandem bicycle.  He was killed and his wife was injured.  The plaintiffs brought action against the municipality for disrepair of the road.  On the appeal, it was found that the driver of the bicycle was contributorily negligent, but the liability of the town was upheld.

The point of interest is the Court of Appeal’s firm pronouncement against the “let it all in” approach of many trial judges.  The Court aimed its comments against the easy admission of opinions from an “accident reconstruction” expert called by the defence: 

Apart from trial economy, trial judges who fail to properly perform their gatekeeping function run the risk of their decision-making function being usurped or severely eroded by “expert generalists” who profess to know something about everything and who are only too willing to provide the court with a ready-made solution for any contentious issue that might exist.  The problem with such witnesses is that while they appear knowledgeable and generally come across well, upon closer scrutiny, their opinions may well turn out to be little more than concoctions consisting of guess work, speculation, common place information and junk science, with a hint of valid science thrown in for good measure.

Courts must indeed be vigilant not to allow impermissible evidence.  I see this type of “evidence” being offered frequently.  Next time it happens, I will be relying on this pronouncement from the Ontario Court of Appeal to try to stop it from happening.