Preventing Life Sentences and Loss of Life by Expert Evidence
Flawed expert evidence induces miscarriages of justice. In catastrophic injury cases, such flawed evidence may effectively impose wrongful life sentences of avoidable pain and suffering. In catastrophic family law cases, it may contribute to financial ruins and desperation.
In October 2018, we submitted a proposed change to the Ontario Rules of Civil Procedure to exclude expert opinion evidence which goes beyond questions of fact and into questions of mixed law and fact. This proposal was rejected by the research arm of the Committee in April and December 2021 for the apparent reason that it was beyond the scope and function of the Committee.
As the option of amending the Rules to prevent expert-induced miscarriages of justice appeared to be closed, we considered intervention on an appropriate case before the Ontario Court of Appeal, or preferably the Supreme Court of Canada before its leave to appeal is decided, seeking ultimately for a restatement that expert opinion evidence, as discussed in R. v. Mohan, is to be restricted to only factual opinion evidence, not evidence on issues of mixed law and fact.
In February 2022, an opportunity arose for us to seek intervention before the Supreme Court of Canada following the Ontario Court of Appeal decision in St. Marthe v. O'Connor. Despite having been cautioned that it is exceedingly rare that intervention is granted to an intervener before leave to appeal has been granted, we decided to file our motion for intervention. Ultimately, however, the Court dismissed the leave to appeal application, and accordingly, our intervention application was also dismissed. The issue of whether opinion evidence on a question of mixed law and fact is inadmissible appears to us to remain to be heard in a more appropriate case before the Supreme Court of Canada where the courts below have "a concrete and well-developed factual setting" and "have the benefit of the contending points of view of those most directly affected by the issues": British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27, headnotes. In retrospect, our motion for intervention appeared to have amounted to seeking public interest standing to litigate in the final stage of litigation, namely before the final court of appeal in the country, where none of the litigants has identified the issue below, let alone benefited the courts below or a proposed Supreme Court panel with contending points of view. As such, it now appears to us that the Supreme Court of Canada would have had no choice but to leave the issue to a different case, regardless of any merits on the issue.
The gist of our argument that opinion evidence of mixed law and fact must be clearly banned is based on unanimous (9-0) Supreme Court jurisprudence, last discussed in R. v. Fisher, [1961] SCR 535, which explicitly so stated, and which was not directly cited nor discussed by Mohan. Accordingly, Mohan might not have intentionally overruled Fisher as to authorize opinion evidence on mixed law and fact. For a more detailed discussion, click to read our analysis in our Motion Record and our Reply to the Response of a respondent. Since the preparation of our Motion Record, we would, in the future, consider citing Hamilton v. Bluewater Recycling Association, 2016 ONCA 805 CanLii, as a better example of a case, than even Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265 (CanLII) which we discussed in our Motion Record, where a wrongful civil verdict and a wrongful life sentence of suffering on a paralyzed victim may have actually materialized as a result of flawed expert evidence, where an expert was permitted to provide opinion evidence on what a reasonable motorist would have done immediately before a collision. A reasonable motorist involves a quintessential underlying legal test, namely the notoriously amorphous legal fiction of a "reasonable" man or woman, and such opinion evidence therefore involves a question of mixed law and fact, and ought not to have been permitted. In our respectful view, the Court of Appeal overlooked Fisher and misapplied Mohan.
Writing in Mohan, Sopinka J. appeared to have not thought that it was necessary to clearly state this obvious, axiomatic restriction on expert opinion evidence as the first criterion, although he did refer to the implied context of the "fact-finding" process, and assistance for the trier of "fact". This restriction is much more clearly set out in the seminal textbook on evidence bearing his name as to leave no reasonable doubt that common law expert opinion evidence can not be on any issue but fact alone (see Sopinka, Lederman, Bryant: The Law of Evidence in Canada, LexisNexis Butterworths, 2nd Ed. 1997, Chapter 12, commencing para. 12.25). Unfortunately, however, when the less-than-direct references to this restriction on expert evidence are overwhelmed by his direct restatement in Mohan that there is no longer a general prohibition against expert opinion evidence on an "ultimate issue", an inevitable result follows, namely that the restriction is overlooked, hence wrongly lifted, by many legal professionals and lawmakers inadvertently.
This alleged oversight has contributed to subsequent jurisprudence where experts are routinely permitted to opine on the very legal disputes (overwhelmingly of mixed law and fact in nature) being adjudicated by triers of fact (juries and judges) and statutory decision makers at various tribunals. Some of such jurisprudence has been discussed in our submission to the Rules Committee above. Since our above submission, we also uncovered similar jurisprudence, for example, at the Ontario Municipal Board, and the Local Planning Appeal Tribunal (LPAT) which are continued in 2021 as the Ontario Land Tribunal. There, experts have practically become statutory adjudicators before this Tribunal, without of course having been delegated statutory authority to do so by the Ontario Legislature. Its jurisprudence is both settled and entrenched where experts are not just routinely permitted but are expected to opine even as to what is in "the public interest"! (See for example, Canadian Rental Development Services Inc. v. Ottawa (City), 2021 CanLII 770 (ON LPAT), para. 44.) What is in the public interest has always been a complex matrix of law and fact, often further intertwined with policy, discretion and assessment of credibility of witnesses which are exclusively vested in judges, juries, or statutory decision makers. Public interest is a question of mixed law and fact, and has been authoritatively confirmed by the Divisional Court on juridical review of a case from the tribunal. But Mohan continues to provide cover for its current jurisprudence in admitting expert evidence on the ultimate issue of mixed law and fact.
As of 2024, options to move forward include highlighting Brown v. Kagan and cases relating to the parties, to assess the roles of experts in a reported cottage industry involving catastrophic family law cases? Did expert evidence in the family justice system induce desperation leading to the loss of little Keira and her father?
Brown v. Kagan, 2018 ONSC 564 CanLII
The area of family law also appears to have a similar problem relating to improper expert evidence on issues of mixed law and fact, per our review of Brown v. Kagan, 2018 ONSC 564 CanLII, dismissed, 2019 ONCA 495 CanLII. This was a tragic case. In the midst of legal proceedings, little Keira Kagan and her father died in February 2020, at the bottom of a cliff in Milton, Ontario. Their deaths were widely reported in the media.
We reviewed the decision merely to screen for any similar problem with expert evidence on issues of mixed law and fact. Regrettably, from our review of the evidence of Dr. Peter S., psychiatrist and a court-appointed expert, it is apparent that opinion evidence on numerous issues of mixed law and fact was admitted as routinely the case in personal injury cases.
Dr. S. spent 230 hours (!) doing the 220-page report at the cost of $80,000 (!!). He opined on numerous issues of mixed law and fact, including but not limited to:
(a) the balancing of custody and access;
(b) overnight access;
(c) the ability of a parent to care for a child;
(d) past conduct of a parent and how it may impact ability to care for a child;
(e) whether credibility of a certain nature ... on the part of one parent would impact the ability to care for a child; and
(f) best interests of the child.
From the analysis of the Court, all of the above issues appear to be subject to, and are governed by, caselaw development. As such, we submit that Dr. S.’s opinions, couched as “recommendations”, amount to opinions on issues of mixed and fact, or legal opinions on underlying questions of law, and ought to have been disqualified.
We discuss here but one example from the decision, for brevity. On ordering a residential schedule, the trial judge disagreed with Dr. S.’s opinion for a gradual increase in overnight visits, and ordered an accelerated increase, starting almost immediately (paras. 173-4). The judge cited significant caselaw which propounded the importance of overnight visits (paras. 175-183), referencing legal and statutory terms such as “minimal access”, “maximum contact principle”, and “best interests of the child” (para. 181). We submit that such legal developments and considerations were beyond Dr. S.’s role, as legal knowledge and expertise were held to be beyond Dr. O. in Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265.
The story involving little Keira’s death was covered by an article in the Toronto Life magazine (November 2020). On parenting assessments such as that by Dr. S., it is interesting to note its observations of an unregulated and polarizing cottage industry in family law:
"Parenting assessments have proliferated in lockstep with high-conflict cases over the last decade, and assessors are controversial in the world of family law because they aren’t necessarily experts in custody issues or family abuse and they have no central regulating body. An assessor simply needs to be a mental health professional—a social worker, psychologist or psychiatrist—who will visit the family, interview relatives and draw on psychological testing of the parents. Together, they comprise a cottage industry of professionals who can charge up to $400 an hour. Assessors are hotly debated in online forums by aggrieved parents who have strong opinions about their opinions: many of them gain a reputation for favouring fathers over mothers and vice versa, and lawyers advise their clients to choose accordingly. The College of Psychologists of Ontario has reported that 25 per cent of formal complaints made against its members relate to custody and child protection."
This observation in family law is sadly much similar to our experience in personal injury law. While injury victims are not expected to pay upfront for expert costs, in family law however, Dr. S.’s substantial expert costs are paid by the parties themselves, upfront from their own pockets and family savings.
In Keira’s family, her father and mother each paid $40,000 for Dr. S.’s report. Her father, the late Mr. Brown, also paid for legal representation but later self-represented at trial. He claimed to have no income at trial but was imputed an annual income of $100,000 per year. Legal costs, including expert costs, leave little doubt in us that there would have been serious financial stresses on the individuals involved in this tragic case, as in many other cases involving ordinary people.
In sanitized words, a complex and costly legal system puts access to justice out of reach for ordinary people. More ominously, it puts financial ruins and desperation within their reach when access to their children, the love of their lives, becomes contested. The hazards of experts and their voluminous roleplays in family law should not be buried along their sufferers.
Flawed expert evidence induces miscarriages of justice. In catastrophic injury cases, such flawed evidence may effectively impose wrongful life sentences of avoidable pain and suffering. In catastrophic family law cases, it may contribute to financial ruins and desperation.
In October 2018, we submitted a proposed change to the Ontario Rules of Civil Procedure to exclude expert opinion evidence which goes beyond questions of fact and into questions of mixed law and fact. This proposal was rejected by the research arm of the Committee in April and December 2021 for the apparent reason that it was beyond the scope and function of the Committee.
As the option of amending the Rules to prevent expert-induced miscarriages of justice appeared to be closed, we considered intervention on an appropriate case before the Ontario Court of Appeal, or preferably the Supreme Court of Canada before its leave to appeal is decided, seeking ultimately for a restatement that expert opinion evidence, as discussed in R. v. Mohan, is to be restricted to only factual opinion evidence, not evidence on issues of mixed law and fact.
In February 2022, an opportunity arose for us to seek intervention before the Supreme Court of Canada following the Ontario Court of Appeal decision in St. Marthe v. O'Connor. Despite having been cautioned that it is exceedingly rare that intervention is granted to an intervener before leave to appeal has been granted, we decided to file our motion for intervention. Ultimately, however, the Court dismissed the leave to appeal application, and accordingly, our intervention application was also dismissed. The issue of whether opinion evidence on a question of mixed law and fact is inadmissible appears to us to remain to be heard in a more appropriate case before the Supreme Court of Canada where the courts below have "a concrete and well-developed factual setting" and "have the benefit of the contending points of view of those most directly affected by the issues": British Columbia (Attorney General) v. Council of Canadians with Disabilities, 2022 SCC 27, headnotes. In retrospect, our motion for intervention appeared to have amounted to seeking public interest standing to litigate in the final stage of litigation, namely before the final court of appeal in the country, where none of the litigants has identified the issue below, let alone benefited the courts below or a proposed Supreme Court panel with contending points of view. As such, it now appears to us that the Supreme Court of Canada would have had no choice but to leave the issue to a different case, regardless of any merits on the issue.
The gist of our argument that opinion evidence of mixed law and fact must be clearly banned is based on unanimous (9-0) Supreme Court jurisprudence, last discussed in R. v. Fisher, [1961] SCR 535, which explicitly so stated, and which was not directly cited nor discussed by Mohan. Accordingly, Mohan might not have intentionally overruled Fisher as to authorize opinion evidence on mixed law and fact. For a more detailed discussion, click to read our analysis in our Motion Record and our Reply to the Response of a respondent. Since the preparation of our Motion Record, we would, in the future, consider citing Hamilton v. Bluewater Recycling Association, 2016 ONCA 805 CanLii, as a better example of a case, than even Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265 (CanLII) which we discussed in our Motion Record, where a wrongful civil verdict and a wrongful life sentence of suffering on a paralyzed victim may have actually materialized as a result of flawed expert evidence, where an expert was permitted to provide opinion evidence on what a reasonable motorist would have done immediately before a collision. A reasonable motorist involves a quintessential underlying legal test, namely the notoriously amorphous legal fiction of a "reasonable" man or woman, and such opinion evidence therefore involves a question of mixed law and fact, and ought not to have been permitted. In our respectful view, the Court of Appeal overlooked Fisher and misapplied Mohan.
Writing in Mohan, Sopinka J. appeared to have not thought that it was necessary to clearly state this obvious, axiomatic restriction on expert opinion evidence as the first criterion, although he did refer to the implied context of the "fact-finding" process, and assistance for the trier of "fact". This restriction is much more clearly set out in the seminal textbook on evidence bearing his name as to leave no reasonable doubt that common law expert opinion evidence can not be on any issue but fact alone (see Sopinka, Lederman, Bryant: The Law of Evidence in Canada, LexisNexis Butterworths, 2nd Ed. 1997, Chapter 12, commencing para. 12.25). Unfortunately, however, when the less-than-direct references to this restriction on expert evidence are overwhelmed by his direct restatement in Mohan that there is no longer a general prohibition against expert opinion evidence on an "ultimate issue", an inevitable result follows, namely that the restriction is overlooked, hence wrongly lifted, by many legal professionals and lawmakers inadvertently.
This alleged oversight has contributed to subsequent jurisprudence where experts are routinely permitted to opine on the very legal disputes (overwhelmingly of mixed law and fact in nature) being adjudicated by triers of fact (juries and judges) and statutory decision makers at various tribunals. Some of such jurisprudence has been discussed in our submission to the Rules Committee above. Since our above submission, we also uncovered similar jurisprudence, for example, at the Ontario Municipal Board, and the Local Planning Appeal Tribunal (LPAT) which are continued in 2021 as the Ontario Land Tribunal. There, experts have practically become statutory adjudicators before this Tribunal, without of course having been delegated statutory authority to do so by the Ontario Legislature. Its jurisprudence is both settled and entrenched where experts are not just routinely permitted but are expected to opine even as to what is in "the public interest"! (See for example, Canadian Rental Development Services Inc. v. Ottawa (City), 2021 CanLII 770 (ON LPAT), para. 44.) What is in the public interest has always been a complex matrix of law and fact, often further intertwined with policy, discretion and assessment of credibility of witnesses which are exclusively vested in judges, juries, or statutory decision makers. Public interest is a question of mixed law and fact, and has been authoritatively confirmed by the Divisional Court on juridical review of a case from the tribunal. But Mohan continues to provide cover for its current jurisprudence in admitting expert evidence on the ultimate issue of mixed law and fact.
As of 2024, options to move forward include highlighting Brown v. Kagan and cases relating to the parties, to assess the roles of experts in a reported cottage industry involving catastrophic family law cases? Did expert evidence in the family justice system induce desperation leading to the loss of little Keira and her father?
Brown v. Kagan, 2018 ONSC 564 CanLII
The area of family law also appears to have a similar problem relating to improper expert evidence on issues of mixed law and fact, per our review of Brown v. Kagan, 2018 ONSC 564 CanLII, dismissed, 2019 ONCA 495 CanLII. This was a tragic case. In the midst of legal proceedings, little Keira Kagan and her father died in February 2020, at the bottom of a cliff in Milton, Ontario. Their deaths were widely reported in the media.
We reviewed the decision merely to screen for any similar problem with expert evidence on issues of mixed law and fact. Regrettably, from our review of the evidence of Dr. Peter S., psychiatrist and a court-appointed expert, it is apparent that opinion evidence on numerous issues of mixed law and fact was admitted as routinely the case in personal injury cases.
Dr. S. spent 230 hours (!) doing the 220-page report at the cost of $80,000 (!!). He opined on numerous issues of mixed law and fact, including but not limited to:
(a) the balancing of custody and access;
(b) overnight access;
(c) the ability of a parent to care for a child;
(d) past conduct of a parent and how it may impact ability to care for a child;
(e) whether credibility of a certain nature ... on the part of one parent would impact the ability to care for a child; and
(f) best interests of the child.
From the analysis of the Court, all of the above issues appear to be subject to, and are governed by, caselaw development. As such, we submit that Dr. S.’s opinions, couched as “recommendations”, amount to opinions on issues of mixed and fact, or legal opinions on underlying questions of law, and ought to have been disqualified.
We discuss here but one example from the decision, for brevity. On ordering a residential schedule, the trial judge disagreed with Dr. S.’s opinion for a gradual increase in overnight visits, and ordered an accelerated increase, starting almost immediately (paras. 173-4). The judge cited significant caselaw which propounded the importance of overnight visits (paras. 175-183), referencing legal and statutory terms such as “minimal access”, “maximum contact principle”, and “best interests of the child” (para. 181). We submit that such legal developments and considerations were beyond Dr. S.’s role, as legal knowledge and expertise were held to be beyond Dr. O. in Pucci v. The Wawanesa Mutual Insurance Company, 2020 ONCA 265.
The story involving little Keira’s death was covered by an article in the Toronto Life magazine (November 2020). On parenting assessments such as that by Dr. S., it is interesting to note its observations of an unregulated and polarizing cottage industry in family law:
"Parenting assessments have proliferated in lockstep with high-conflict cases over the last decade, and assessors are controversial in the world of family law because they aren’t necessarily experts in custody issues or family abuse and they have no central regulating body. An assessor simply needs to be a mental health professional—a social worker, psychologist or psychiatrist—who will visit the family, interview relatives and draw on psychological testing of the parents. Together, they comprise a cottage industry of professionals who can charge up to $400 an hour. Assessors are hotly debated in online forums by aggrieved parents who have strong opinions about their opinions: many of them gain a reputation for favouring fathers over mothers and vice versa, and lawyers advise their clients to choose accordingly. The College of Psychologists of Ontario has reported that 25 per cent of formal complaints made against its members relate to custody and child protection."
This observation in family law is sadly much similar to our experience in personal injury law. While injury victims are not expected to pay upfront for expert costs, in family law however, Dr. S.’s substantial expert costs are paid by the parties themselves, upfront from their own pockets and family savings.
In Keira’s family, her father and mother each paid $40,000 for Dr. S.’s report. Her father, the late Mr. Brown, also paid for legal representation but later self-represented at trial. He claimed to have no income at trial but was imputed an annual income of $100,000 per year. Legal costs, including expert costs, leave little doubt in us that there would have been serious financial stresses on the individuals involved in this tragic case, as in many other cases involving ordinary people.
In sanitized words, a complex and costly legal system puts access to justice out of reach for ordinary people. More ominously, it puts financial ruins and desperation within their reach when access to their children, the love of their lives, becomes contested. The hazards of experts and their voluminous roleplays in family law should not be buried along their sufferers.