IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Conseil scolaire francophone de la

Colombie-Britannique v. British Columbia
(Education),
2014 BCSC 851
Date: 20140515
Docket: S103975
Registry: Vancouver
Between:
Conseil scolaire francophone de la Colombie-Britannique, Fdration des
parents francophones de Columbie-Britannique, Annette Azar Diehl, Stphane
Perron and Marie-Nicole Dubois
Plaintiffs
And
Her Majesty the Queen in right of the Province of British Columbia, and the
Minister of Education of the Province of British Columbia
Defendants
And
Conseil scolaire francophone de la Colombie-Britannique
Third Party
- and -
Docket: S103455
Registry: Vancouver
Between:
LAssociation des parents de lcole Rose-Des-Vents and Joseph Pag in his
name and in the name of all citizens of Canada residing west of Main Street in
the City of Vancouver whose first language learned and still understood is
French, or who have received their primary school instruction in Canada in
French, or of whom any child has received or is receiving primary or
secondary school instruction in French in Canada
Petitioners
And
Conseil scolaire francophone de la Columbie-Britannique, The Minister of
Education of British Columbia, and The Attorney General of British Columbia
Respondents
Conseil scolaire francophone de la Colombie-Britannique v. British Columbia
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Before: The Honourable Madam Justice Russell
Ruling on Admissibility of the Martel Report
Counsel for Plaintiffs and Third Party: R.W. Grant, Q.C.
M.C. Power
D.P. Taylor
J.P. Hachey
Counsel for the Defendants: M.A. Feder
N.J. Isaac
W. Milman
K.A. Wolfe
Place and Date of Hearing: Vancouver, B.C.
May 2 and 9, 2014
Place and Date of Judgment: Vancouver, B.C.
May 15, 2014

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[1] The plaintiffs (collectively referred to as the CSF) wish to tender into evidence
the expert report of Professor Angline Martel (the Martel Report). The defendants,
the Queen in Right of British Columbia and the Minister of Education (together, the
Province) object to the admissibility of the entire Martel Report on the ground of
lack of impartiality and independence. Alternatively, the Province objects to the
admissibility of paras. 21-28 of the Martel Report because they are unnecessary,
amount to legal argument and do not fall within Prof. Martels area of expertise.
[2] Prof. Martel is a professor of sociolinguistics and languages at Tl-universit
in Montreal, Quebec. She holds a Bachelor of Education, Master of Arts and a
Doctorate of Philosophy from the University of Alberta. She has published
extensively on linguistic minority education and has advised governments and quasi-
governmental organizations on language policy.
[3] The CSF asked Prof. Martel for her opinion with respect to the impact on a
minority French-language community of the construction of a new homogeneous
French-language school facility to serve that community. More particularly, she was
asked for her opinion on the impact the construction of a new, homogeneous
French-language school facility has on enrolment and the vitality of a minority
French-language community. Prof. Martel also specifically addresses the effect of
the construction of new, homogeneous French-language school facilities in a
number of communities in British Columbia.
[4] In s. 2.2 of the Martel Report, Prof. Martel sets out the Teleological
foundations for her opinion. Specifically, in paras. 21-24, Prof. Martel reviews her
understanding of the objectives of s. 23 of the Canadian Charter of Rights and
Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act
1982 (U.K.), 1982, c. 11 (Charter), and explores the terminology used by the
Supreme Court of Canada in four decisions pertaining to French-language minority
education rights. In paras. 25-27, Prof. Martel uses her analysis of the cases to
explain her understanding of the desired outcomes of s. 23 and the actions
necessary to achieve those outcomes. In para. 28, Prof. Martel explains that the
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concepts she states to be the objects of s. 23 are often analyzed through a series of
indicators organized within the construct of ethnolinguistic vitality, and explains the
history and purpose of that ethnolinguistic model.
[5] Prof. Martel was cross-examined with respect to her qualifications on April 14-
15 and May 2, 2014. In the course of that evidence, she explained that paras. 21-28
of the Martel Report are her discourse analysis of s. 23 jurisprudence. She agreed
that she possesses no particular legal training, and is not in a better position than
the Court to understand the purposes of s. 23. She noted that her understanding of
s.23 of the Charter allowed her to select the ethnolinguistic vitality model of analysis.
However, she also explained that the ethnolinguistic vitality model is pervasive, and
she would have been likely to select that model regardless of her interpretation of
the s. 23 cases.
[6] With respect to the substance of her responses to the questions, Prof. Martel
explained that before she started her research, she was not persuaded that new,
homogeneous French-language school facilities would result in increased enrolment
in small French-language schools in British Columbia. However, she did expect that
larger schools would see increases in enrolment because she had observed that
phenomenon in other places.
[7] Prof. Martel also gave evidence with respect to the process of preparing the
Martel Report. She explained on cross-examination that she met with counsel for the
CSF in Montreal and Ottawa several times to review and work on the Martel Report,
and also consulted with them by telephone using Adobe Connect sessions. Prof.
Martel insisted that their input was limited to proof-reading and suggestions for
clarification, and that they did not influence the substance of the Martel Report in any
way. Since Prof. Martel did not provide counsel for the CSF with drafts of the Martel
Report and Prof. Martel typically did not exchange e-mails with counsel, there is
almost no documentation of the extent of counsels involvement.
[8] On cross-examination, Prof. Martel agreed that she identifies with the minority
language-rights movement in Canada. However, she also explained that the fact that
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she identifies with the community does not prevent her from taking a critical distance
in her academic work. She also indicated that although she has never been an
expert for the government in a s. 23 case, she would be willing to do so if she were
asked.
[9] The Province cross-examined Prof. Martel with respect to her understanding
of her role as an expert. Prof. Martel explained that she understood that she was
required to be objective, document her research and present that information clearly.
She agreed that her report was her independent product uninfluenced as to form or
content by the exigencies of the litigation or counsel, except to the extent that
counsel assisted her with the form of her report. She also agreed that her report
provides independent assistance to the Court by way of an objective, unbiased
opinion, and that she had assiduously sought to avoid assuming the role of an
advocate. When asked whether she had considered all material facts that could
detract from the opinion she expressed, she indicated that she had, but then stated
that she did select. When asked if her report relates exclusively to matters within
her expertise, Prof. Martel responded, I hope so.
[10] Prof. Martel gave evidence concerning her role in other claims pursuant to
s. 23 of the Charter. She confirmed that she was a plaintiff in the seminal s. 23 case
of Mahe v. Alberta, [1990] 1 S.C.R. 342. She also indicated that she has prepared
expert reports in support of claimants in several s. 23 cases. In Dauphinee v.
Conseil Scolaire Acadien Provincial, 2007 NSSC 238, Mr. Justice Boudreau rejected
Prof. Martels expert evidence concerning the number of s. 23 rightsholders with
special needs. When asked why her evidence was rejected, she stated that she had
been unable to attend the hearings, and that the judge found she had crunched
numbers.
[11] Prof. Martel also indicated that she had prepared an expert report for
LAssociation des parents de lcole Rose-des-vents v. Conseil scolaire francophone
de la Colombie Britannique, 2012 BCSC 1206, (the Petition Proceeding), a
proceeding related to this one. That report was not served or used as evidence in
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that proceeding. Instead, Prof. Martel swore an affidavit with her observations of the
differences among schools in Vancouver, not in her capacity as an expert. Prof.
Martel gave evidence that she was pleased that her affidavit made a contribution to
the Court, and she thought she was pleased with the outcome of the trial decision.
[12] The Province also pressed Prof. Martel with respect to the views she
expressed in a book chapter she wrote in 1999: Heroes, Rebels, Communities and
States in Language Rights Activism and Litigation in Mikls Kontra et al, eds,
Language: A Right and a Resource: Approaching Linguistic Human Rights (New
York: Central European University Press, 1999) 47 (Heroes and Rebels). In that
chapter, Prof. Martel explores the use of litigation as an instrument of language-
rights activism by analyzing the influence of litigation on social and political relations
of French-language minorities in Canada. Based on that example, Prof. Martel
examines positive and negative results of [language-rights litigation] with regard to
(minority) community development and social organization and suggests strategies
for social change and minority community development through language rights
activism (at 48).
[13] The CSF seeks to qualify Prof. Martel as an expert in the following areas:
Sociolinguistics, including language planning and discourse analysis;
The implementation of government programs to preserve and promote
minority-language education and culture;
The role of schools in the development of French-language communities
outside Quebec;
Applied research and methodologies regarding the implementation of
government programs to preserve and promote minority-language education
and culture, including applied research and methodologies regarding French-
language schools outside Quebec.
Analysis
[14] The principles governing the admissibility of expert evidence are well-known.
Expert evidence will be admitted where it meets four criteria: it must be relevant,
necessary, not subject to an exclusionary rule and proffered by a properly qualified
expert: R. v. Mohan, [1994] 2 S.C.R. 9 at 20.
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[15] The Province does not take issue with the relevance of the Martel Report
except to the extent that Prof. Martel lacks impartiality and independence sufficient
to override the probative value of the Martel Report.
[16] The Province does not suggest that the Martel Report is unnecessary or
outside Prof. Martels proposed qualifications except with respect to paras. 21-28 of
the Martel Report. The Province has not raised another exclusionary rule.
Lack of Impartiality and Independence
Threshold Admissibility vs. Weight
[17] The Province submits that pursuant to the common law and R. 11-2(1) and
(2) of the Supreme Court Civil Rules, experts are required to be independent,
objective and impartial. This requirement is not controversial. It was explained by Mr.
Justice Vickers in William et al v. British Columbia et al, 2005 BCSC 131 at para. 31:
It is essential that a person called to give expert evidence be independent
and impartial. Such a person is called to assist the court in areas that require
expertise. The court must be able to rely on the opinions expressed as those
of the expert and no one else. Those opinions cannot be influenced by the
adversarial demands of the litigation nor by the demands of counsel retaining
the expert: Kirby Lowbed Services Ltd. v. Bank of Nova Scotia, 2003 BCSC
617.
[18] The Province says that bias and lack of independence is a factor that goes to
threshold admissibility of expert evidence rather than weight. The Province grounds
this position in the rationale underlying the admissibility of expert evidence as an
exception to the rule against opinion evidence, as well as the gatekeeper function of
the court, relying on United City Properties Ltd. v. Tong, 2010 BCSC 111 and R. v.
J.-L.J., [2000] 2 S.C.R. 600. The Province stresses that only relatively minor cases
of lack of impartiality should be addressed with reference to weight.
[19] The CSF disagrees, and says that except in extraordinary circumstances,
potential bias and lack of independence go to weight rather than threshold
admissibility. In the CSFs submission, the reason for this rule is that a court cannot
determine how bias or impartiality could have affected the reliability of the report until
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it has heard the evidence, cross-examination and considered the expert report as a
tendered exhibit. Excluding an expert report at the stage of qualifying the expert
would deprive the court of the benefit of that deeper understanding. The CSF, too,
relies on United City Properties as well as R. v. Abbey, 2009 ONCA 624 at para. 87,
and Alfano v. Piersanti, 2012 ONCA 297 at paras. 110-112.
[20] In United City Properties, Mr. Justice Romilly discussed the various
approaches courts have taken to allegations of bias in expert evidence. He explored
how the question of bias should be logically situated in the overall expert
qualification analysis, and the range of factors that could show bias on the part of an
expert. He ultimately concluded that lack of impartiality can be addressed in the
admissibility framework (at paras. 65-66):
[65] After considering the positions taken in the jurisprudence and
literature discussed above, in my view, an approach which allows any expert
evidence to be adduced and considers bias only as a factor affecting the
weight of the evidence is not supported by the rationale underlying the
exception for expert evidence, or the strong statements of the Supreme Court
of Canada regarding the gatekeeper role of the trial judge with respect to
expert evidence. The framework set down by Mohan invites consideration of
the experts degree of bias as part of the relevancy criterion. Expert evidence
should be excluded on the basis of bias if, in the trial judges opinion, the
effect of that evidence on the jury is out of proportion to its reliability. In
making the determination, great assistance can be had from the factors
suggested by McWilliams, and the considerations at play in the English
jurisprudence. [Emphasis added.]
[66] In the recent Abbey decision of the Ontario Court of Appeal, Doherty
J.A. makes some helpful and practical suggestions for trial judges faced with
this issue. He wrote:
[76] Using these criteria, I suggest a two-step process for
determining admissibility. First, the party proffering the evidence must
demonstrate the existence of certain preconditions to the admissibility
of expert evidence. For example, that party must show that the
proposed witness is qualified to give the relevant opinion. Second, the
trial judge must decide whether expert evidence that meets the
preconditions to admissibility is sufficiently beneficial to the trial
process to warrant its admission despite the potential harm to the trial
process that may flow from the admission of the expert evidence. This
gatekeeper component of the admissibility inquiry lies at the heart of
the present evidentiary regime governing the admissibility of expert
opinion evidence: see Mohan; R. v. D.D.,, [2000] 2 S.C.R. 275; J.-
L.J.; R. v. Trochym, [2007] 1 S.C.R. 239; K. (A.); Ranger; R. v.
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Osmar (2007), 84 O.R. (3d) 321 (C.A.), leave to appeal to S.C.C.
refused (2007), 85 O.R. (3d) xviii.
[77] I appreciate that Mohan does not describe the admissibility
inquiry as a two-step process. It does not distinguish between what I
refer to as the preconditions to admissibility and the trial judges
exercise of the gatekeeper function. My description of the process
as involving two distinct phases does not alter the substance of the
analysis required by Mohan. In suggesting a two-step approach, I
mean only to facilitate the admissibility analysis and the application of
the Mohan criteria.
[78] It is helpful to distinguish between what I describe as the
preconditions to admissibility of expert opinion evidence and the
performance of the gatekeeper function because the two are very
different. The inquiry into compliance with the preconditions to
admissibility is a rules-based analysis that will yield yes or no
answers. Evidence that does not meet all of the preconditions to
admissibility must be excluded and the trial judge need not address
the more difficult and subtle considerations that arise in the
gatekeeper phase of the admissibility inquiry.
[79] The gatekeeper inquiry does not involve the application of
bright line rules, but instead requires an exercise of judicial discretion.
The trial judge must identify and weigh competing considerations to
decide whether on balance those considerations favour the
admissibility of the evidence. This cost-benefit analysis is case-
specific and, unlike the first phase of the admissibility inquiry, often
does not admit of a straightforward yes or no answer. Different trial
judges, properly applying the relevant principles in the exercise of
their discretion, could in some situations come to different conclusions
on admissibility.
[Emphasis added.]
[21] Mr. Justice Romilly refers to factors useful for ascertaining bias and
impartiality outlined in Casey Hill et al., McWilliams Canadian Criminal Evidence,
looseleaf (Aurora, Ontario: Canada Law Book, 2009) at pp.12-63 through 12-64 (the
McWilliams Factors). Those factors appear at para. 49 of United City Properties,
and consist of:
(1) the nature of the stated expertise or special knowledge;
(2) statements publicly or in publications regarding the prosecution itself
or evidencing philosophical hostility toward particular subjects;
(3) a history of retainer exclusively or nearly so by the prosecution or the
defence;
(4) long association with one lawyer or party;
(5) personal involvement or association with a party;
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(6) whether a significant percentage of the experts income is derived
from court appearances;
(7) the size of the fee for work performed or a fee contingent on the result
in the case;
(8) lack of a report, a grossly incomplete report, modification or
withdrawal of a report without reasonable explanation, a report replete with
advocacy and argument;
(9) performance in other cases indicating lack of objectivity and
impartiality;
(10) a history of successful attacks on the witnesss evidence;
(11) unexplained differing opinions on near identical subject matter in
various court appearances or reports;
(12) departure from, as opposed to adherence to, any governing ethical
guidelines, codes or protocols respecting the expert witnesss field of
expertise;
(13) inaccessibility prior to trial to the opposing party, follow through on
instructions designed to achieve a desired result, shoddy experimental work,
persistent failure to recognize other explanations or a range of opinion, lack
of disclosure respecting the basis for the opinion or procedures undertaken,
operating beyond the field of stated expertise, unstated assumptions, work or
searches not performed reasonably related to the issue at hand,
unsubstantiated opinions, improperly unqualified statements, unclear or no
demarcation between fact and opinion, unauthorized breach of the spirit of a
witness exclusion order; and
(14) expressed conclusions or opinions which do not remotely relate to the
available factual foundation or prevailing special knowledge.
[22] I accept that the law is as it was articulated by Mr. Justice Romilly in United
City Properties. Where an expert is alleged to be biased, as gatekeeper of the trial
process, the court should weigh the factors suggesting bias when considering
relevance in the Mohan analysis. Courts may find it useful to have regard to the
McWilliams Factors in making that determination. The question of bias may be
considered as a second stage to the relevance analysis, after considering the
preconditions to admissibility. Expert evidence should be excluded on the basis of
bias if, in the trial judges opinion, the effect of that evidence is out of proportion to its
reliability. After performing that cost-benefit analysis, if the court is not persuaded
that the effect of the evidence is out of proportion to its reliability, the court may
admit the evidence subject to weight should the expert espouse any bias. In United
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City Properties (at para. 69), Romilly J. admitted the report and considered its
alleged bias went to its weight.
[23] In my view, at this stage, the threshold for admissibility is a low one. Unless
the existence of bias fundamentally affects the probative value of an expert report,
concerns about bias will go to weight rather than to threshold admissibility. This is
consistent with the approach suggested by the Court of Appeal for Ontario in Alfano,
where Associate Chief Justice OConnor wrote (at para. 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 experts
evidence rather than as a matter of 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.
Appearance of Independence
[24] There was some disagreement between the parties with respect to whether
expert evidence must be seen to be independent and unbiased, or whether actual
bias is required. The question arises out of a statement in National Justice
Compania Naviera S.A. v. Prudential Assurance Co. Ltd., [1993] 2 Lloyds Rep. 68
(QB) at 81 (Ikarian Reefer) that expert evidence presented to the Court should be
and should be seen to be the independent product of the expert (emphasis added).
[25] The Province says that the statement in Ikarian Reefer has been adopted in
British Columbia, relying on William, Kirby Lowbed Services Ltd. v. The Bank of
Nova Scotia, 2003 BCSC 617 and Henderson v. Bakken, 2010 BCSC 559. The
Province also points out that Ikarian Reefer has also been applied in several other
jurisdictions in Canada.
[26] The CSF says that the statement in Ikarian Reefer is not the law in Canada,
relying on Abbott and Haliburton Company v. WBLI Chartered Accountants, 2013
NSCA 66 at para. 125 (currently on appeal to the Supreme Court of Canada). The
CSF stresses that since allegations of bias must be grounded in fact, and since bias
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is only one of the McWilliams Factors to be weighed in the proportionality analysis,
there is no blanket prohibition against expert evidence that is seen to be biased.
[27] In United City Properties, Romilly J. considered a line of cases that did not
require actual bias in order to justify excluding experts evidence, as bias was
presumed from the nature of the existing relationship between the expert and the
party (at para. 41). He found those cases to be consistent with the statement in
Ikarian Reefer. He also observed that while the Ikarian Reefer approach provides a
bright-line rule in cases of an unmistakable appearance of bias, it is incomplete in
that more guidance is needed for those cases in which bias is present even though it
may not be readily apparent from the relationship (para. 44).
[28] After articulating the proper approach to bias, Mr. Justice Romilly went on to
state that presuming bias arising from certain types of relationships between the
party and the expert is not inconsistent with this approach, but in general, bias is a
question of fact to be determined by the trial judge. (at para. 67).
[29] I accept the interpretation of the statement in Ikarian Reefer suggested by
Romilly J. In some cases, there may be a relationship between the party and an
expert that gives rise to such an appearance of bias that the evidence should not be
accepted. However, the question of whether such a relationship exists is only one
factor to be taken into account in the overall weighing of the evidence.
[30] In this case, the only evidence of a relationship between Prof. Martel and the
plaintiffs is her preparation of an affidavit in support of the CSFs position in the
Petition Proceeding. Prof. Martel swore that affidavit in the larger context of having
prepared an expert report that ultimately was not used in the Petition Proceeding.
[31] I also take into account that the relationship between the CSF and
Prof. Martel is less proximate than in United City Properties, where Romilly J.
allowed the evidence of the two experts alleged to be biased. In Edmondson v.
Payer, 2011 BCSC 118, Mr. Justice Smith explained that Romilly J. allowed the
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evidence despite the architects personal financial interests in the outcome of the
litigation (at paras. 68-69):
In United City Properties Ltd. v. Tong, 2010 BCSC 111 [United City
Properties], Romilly J. reviewed the law, including Abbey, and said that bias
or potential bias may make an expert opinion inadmissible. That case
involved a dispute between neighbouring property owners. A driveway on the
plaintiffs property encroached onto the property of the defendant and the
plaintiff sought an order that either created a permanent right of way or that
conveyed title to the portion of property encroached upon.
Both parties were making or planning improvements to or redevelopment of
their respective properties. Each party had retained an architect for purposes
of design and development and they both sought to tender their respective
architects as expert witnesses. Each architect therefore not only had a direct
business relationship with the party calling him, but potentially a direct
pecuniary interest in the outcome of the litigation. Nevertheless, after
reviewing the law and considering the cost benefit analysis, Romilly J.
concluded that the evidence of both architects was admissible subject to
weighing where they espouse any bias.: United City Properties at para. 69.
[32] The relationship between Prof. Martel and the CSF does not give rise to such
an appearance of bias that her evidence should not be accepted.
Application of United City Properties
[33] The Province bases its objection to the admissibility of Prof. Martels report on
the cumulative effect of the following:
The views Prof. Martel expressed in Heroes and Rebels;
The role of Prof. Martel and her partner as named plaintiffs in Mahe;
The Supreme Court of Nova Scotias rejection of Prof. Martels
evidence in Dauphinee and conclusion that Prof. Martels numbers
warrant evidence was off by more than 2,000% from the high end of
its finding of fact concerning the reasonable range;
Prof. Martels inclusion of her rejected expert evidence in Dauphinee
as judicial expertise in sociolinguistics in her curriculum vitae;
Prof. Martels refusal to agree that her absence at the Dauphinee
hearing had nothing to do with the Supreme Court of Nova Scotias
rejection of her expertise and evidence;
Prof. Martels reluctant confirmation that she had published strategies
for the successful prosecution of minority language rights litigation;
Prof. Martel having sworn a lay affidavit in support of the CSFs
position in the Petition Proceeding;
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Prof. Martel admitting that she identifies with the minority language
rights movement in Canada;
Prof. Martels general evasiveness in cross-examination;
Prof. Martels admitted predispositions towards the opinions expressed
in her report;
Prof. Martels inability to confirm that her report relates exclusively to
matters within her expertise or that she considered all material facts
that could detract from her opinion;
Prof. Martels admission that her report was influenced as to form by
counsel for the CSF;
Counsel for the CSFs involvement in the preparation of Prof. Martels
report combined with the absence of drafts or records of that extensive
involvement;
Prof. Martels consistent and implausible minimization of counsel for
the CSFs involvement in the preparation of her report; and
Contradictions in Prof. Martels evidence concerning whether or not
she provided counsel for the CSF with drafts of the Martel Report.
[34] The Province groups these factors into four categories. First, the Province
says Prof. Martels lack of independence is illustrated by her views on s. 23 litigation
and litigants, and the collateral ends to which s. 23 litigation may be put. In
particular, the Province says that Prof. Martels statements in Heroes and Rebels
show that she rejects the neutrality and legitimacy of judicial processes, believes
s. 23 can be employed to achieve collateral ends related to community building, and
is predisposed to the views of s. 23 claimants. The Province says these views are
irreconcilable with Prof. Martels role as an expert.
[35] The CSF states that Prof. Martels evidence shows that while she identifies
with s. 23 claimants, she is able to take a critical distance in her academic work. The
CSF relies on the fact that Prof. Martel indicated she was not predisposed to
believing that new facilities would result in enrollment increases in communities with
small Francophone populations. The CSF urges that Heroes and Rebels must be
understood in its context.
[36] Second, the Province says Prof. Martels previous involvement in s. 23
litigation demonstrates her lack of impartiality. The CSF points out that Prof. Martel
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has a long history of working with governments and quasi-governmental
organizations on language planning, and would act for a government if asked.
[37] Third, the Province points to other aspects of Prof. Martels evidence,
including that she has published litigation strategies for s. 23 claimants, was
generally evasive on cross-examination, and gave inconsistent or implausible
evidence concerning her work with counsel for the CSF. The Province also suggests
that Prof. Martels own testimony shows that she did not comply with her duty as an
expert witness.
[38] The CSF says that by Prof. Martels own account, she conformed with the
rules concerning the role of an expert. Further, the CSF states that the nature and
substance of the Martel Report show that Prof. Martel was independent and
impartial. In particular, the CSF says that Prof. Martels opinion is thoroughly
documented and contains extensive references that allow the Province to test Prof.
Martels conclusions by way of cross-examination or responsive expert reports.
[39] Finally, the Province states that the involvement of counsel for the CSF in the
preparation of the Martel Report give rise to concerns about Prof. Martels
impartiality.
[40] The Province suggests that if counsel are involved in the preparation of an
expert report, it is incumbent on them to assiduously avoid doing anything that may
compromise the appearance of an experts independence and impartiality, and
should maintain contemporaneous records of their involvement to avoid any
allegations that their involvement is improper.
[41] The CSF says that counsel involvement in the preparation of expert reports
should not impute bias to an expert. The CSF says that counsel play a vital role
assisting witnesses to present their evidence in a manner that is clear and helpful to
the court. With reference to the Martel Report in particular, the CSF points to the
length of the Martel Report (which is more than 900 pages long including
appendices and tables) as justification for the number of meetings with counsel.
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Further, the CSF says that because the report is thoroughly documented, it is not
open to skewing based on the urgings of counsel.
[42] The Province also takes the position that courts have excluded expert
evidence in situations less grave than this, citing Alfano v. Piersanti, 176 A.C.W.S.
(3d) 152 (revd, but not on this point, 2012 ONCA 297) [Alfano (S.C.J.)], Kern v.
Forest, 2010 BCSC 938, and Kirby Lowbed.
[43] In Alfano (S.C.J.), after a two-day voir dire, the trial judge excluded the
evidence of an expert retained by the defendants. The trial judge concluded that the
expert had become a spokesperson for the defendants, and, in doing so, did not
independently verify key facts and issues. Thus, if the Court had relied on the
experts opinion, the decision on key issues would have been tainted by the experts
lack of impartiality (at para. 11).
[44] Kern was an action in negligence against several chiropractors. The plaintiff
tendered an expert report by a neurologist who was an outspoken critic of
chiropractic care and had publically compared chiropracty to the tobacco industry
(at para. 139). He was described as having been glib and flippant on cross-
examination (at para. 140). He provided an opinion that the chiropractor more likely
than not caused the plaintiffs injuries. The Court concluded that he had
demonstrated a pre-disposition to be critical of care by chiropractors, and had
crossed the line between expert and advocate (at paras. 142 and 144).
[45] In Kirby Lowbed, Mr. Justice Hood considered whether to admit a statement
by an expert where the expert praised the business abilities and the credibility of one
of the parties (at para. 7). The expert had a 25-year relationship with the parties and
their company (at para. 15). Mr. Justice Hood observed that the statement was more
akin to a submission by counsel than an expert report (at para. 7). The statement
was struck because the expert had demonstrated a close personal relationship that
created sufficient bias to remove his experts mantel (at para. 39).
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[46] With respect to Prof. Martels personal views with respect to s. 23 litigation, I
am not persuaded that Prof. Martels views impugn the probative value of the Martel
Report. This is not a case like Kern where the experts personal views bear directly
on the substance of the opinion which was the ultimate issue before the Court.
[47] I do not consider that Prof. Martels personal views are sufficiently linked to
the substance of her report that those views render her evidence unreliable.
Prof. Martels thorough citations will allow counsel for the Province to test whether
her views have had any impact on her opinion by way of cross-examination.
[48] I also accept that Prof. Martel has attenuated her views since she wrote
Heroes and Rebels. The opinions she wrote in 1999 are not relevant to the report
she prepared for this action in 2014.
[49] Prof. Martels involvement in other s. 23 cases is not without problems.
However, Prof. Martels involvement as a plaintiff in Mahe does not reach the level of
showing she cannot take a critical distance in her work on other s. 23 cases.
[50] I also accept that Prof. Martel provided an opinion outside her expertise and
was found by the trial judge to have made a mistake in her expert evidence in
Dauphinee. I accept as well that she tried to minimize the rejection of her report in
Dauphinee in her cross-examination. However, these issues do not lead me to
conclude that her expert report in this case cannot be relied upon.
[51] Turning to the Provinces third category of objections, I accept that
Prof. Martel was a difficult witness in cross-examination. She is a person who cares
about and is careful with language. She wishes to ensure that she is precise with the
words that she chooses, and was being cross-examined in her second language.
Therefore, she often disputed with counsel the form of the question she was asked.
[52] I am also satisfied that Prof. Martels testimony does not show she did not
conform to her role as an expert witness. Prof. Martels comment that she hopes her
entire report falls within her expertise is best understood in its context, at the end of
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several days of cross-examination. While Prof. Martel confirmed that she did select
the facts on which she relied, all experts must winnow facts to a certain extent.
[53] With respect to the involvement of counsel for the CSF in the preparation of
the Martel Report, in my view, it is quite proper for counsel to provide some
feedback on the form of an expert report to ensure that the evidence is useful to the
court. Prof. Martel maintains that counsel only worked with her on linguistic revisions
and clarifications. The only documentary evidence available shows that at one point,
counsel for the CSF provided Prof. Martel with a linguistic revision of a table to her
report, which does not contain any suggestions going to the substance of
Prof. Martels work. This is consistent with Prof. Martels oral evidence. Further, my
impression of Prof. Martel is that she would not have allowed counsel to interfere
with the integrity of her scholarly analysis.
[54] The Province suggests that if counsel choose to assist experts with their
reports, they should be required to retain records to demonstrate the extent of their
involvement. In my view, such a requirement risks creating an undue financial
burden for litigants. While it may be wise in some situations to retain such records,
as I see it, the law does not require counsel or experts to maintain such records in
case they might be called upon to dispel allegations of bias at some point in the
future. Nor should it raise a suspicion of improper involvement if counsel do not
retain such records.
[55] Counsel should likewise not be required to file and serve affidavits with
respect to their involvement in the preparation of an expert report to dispel any
allegations of wrongdoing. That would put counsel in the difficult position of
potentially being cross-examined before the Court, breaching privilege, or being
unable to continue acting for their clients. A decision not to file an affidavit should not
give rise to a suspicion of impropriety by counsel.
[56] Based on my consideration of the totality of the evidence, the McWilliams
Factors and the submissions of the parties, I am not persuaded that the evidence
shows Prof. Martel lacks impartiality to the extent that it affects the probative value of
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the Martel Report. This is not a case like Alfano where an expert became a
spokesperson for a party, nor does Prof. Martel have a longstanding relationship
with the CSF that removes her experts mantel as in Kirby Lowbed. As I see it, her
evidence is amenable to testing by cross-examination, and her independence should
be tested in that manner, with any arising concerns to be addressed by weight.
[57] I note that the CSF objected to the Provinces submissions concerning the
admissibility of the entire Martel Report due to lack of independence and impartiality
because the Province did not provide proper notice. Because of the conclusion that I
have reached, it is not necessary for me to address those submissions.
Paras. 21-28 of the Martel Report
[58] In the alternative, the Province submits that paras. 21-28 of the Martel Report
are inadmissible because they are outside of Prof. Martels expertise and concern
the interpretation of s. 23 of the Charter. The CSF characterizes these paragraphs
as factual assumptions underlying Prof. Martels choice of the ethnolinguistic vitality
model. In reply, the Province stresses that on Prof. Martels own evidence, the
paragraphs are not relevant to the opinion she expresses in the Martel Report, and
that she would likely have used the ethnolinguistic vitality model in any event.
[59] In my view, paras. 21-28 of the Martel Report are inadmissible as expert
evidence. Prof. Martels opinion with respect to the purposes underlying s. 23 is not
necessary to assist the Court. Further, Prof. Martels views concerning the purposes
of s. 23 fall within the province of the trial judge. As well, her opinion in these
paragraphs falls outside her area of expertise. Although the flavour of the
paragraphs may pervade her choice of model and her opinion, Prof. Martels own
evidence is that her s. 23 analysis is not essential to the rest of her opinion. Those
paragraphs are inadmissible and will be struck from the Martel Report.
Conclusion
[60] The Martel Report is generally relevant and necessary, and Prof. Martel is
qualified in the areas suggested by the CSF. I am satisfied that the consideration of
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any lack of independence or impartiality of Prof. Martel should go to weight rather
than the threshold admissibility of the Martel Report.
[61] However, paras. 21-28 of the Martel Report are unnecessary, are
inadmissible as expert evidence, and will be struck from the Martel Report.
L.D. Russell J.
_______________________________________
The Honourable Madam Justice Loryl D. Russell