“There is a long-standing expectation in both criminal and civil law that an expert’s duty is not to interested parties but to the court. Expert testimony and evidence is expected to be both truthful and to be proffered by someone possessed of sufficient skill, training and knowledge as to be qualified to give opinion evidence on a matter that is relevant to the issues before the court. This underlying expectation has been made explicit in the 2010 changes to Ontario’s Rules of Civil Procedure.
I will argue that these changes, together with pre-existing safeguards, are inadequate given that the provision of expert evidence has become a growth industry. The competition in this industry is intense and incentives to be less than truthful often overtake professional obligations and standards. It is not enough to expect someone with vested interests to be truthful about their willingness to be truthful. In addition to these changes, then, the courts must listen to what prior triers of fact have to say about the quality of experts that have made submissions to them.”
“After due consideration of your proposal, the Civil Rules Committee has decided not to amend the Rules with respect to expert witnesses. The Committee’s role is to consider whether a change to the Rules of Civil Procedure would assist in redressing the problems referred to in your letters. After careful consideration of the issue, the Committee has concluded that a change to the Rules of Civil procedure is not well-suited to achieving the desired ends identified in your letters.
The existing Rules establish that the duty of an expert is to the court and not to the parties: see rule 4.1.01. Form 53 (Acknowledgement of Expert’s Duty) requires any expert to sign an acknowledgement of the matters set out in rule 4.1.01. It is clearly good practice for counsel to assess their own expert witness in the light of any adverse judicial comments about a particular expert, and to seek to introduce any prior adverse judicial comments about an opposing expert witness. A judge has the authority to disqualify an expert, to limit the scope of the expert’s evidence, or to refuse to admit any evidence that is found to be impartial.”
In its reply to me I had hoped the Rules Committee would have addressed the substance of my concern, that is, making revisions to the rules that would make “good practice” more likely to occur. Your dismissive reply to my letter suggests an indifference to the expert witness nightmare, and a willingness to protect “hired guns”.