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Evidence - Expert Opinion

Torts - Defamation - Qualified Privilege

Whitfield v. Whitfield (Ont CA, 2016)

In this Court of Appeal case the court canvasses basic principles of the use of expert evidence, and in particular the tension that can exist between use of the expert's opinion evidence and the court's role as ultimate fact-finder:
[45] The role of an expert witness in the trial process has been the subject of much judicial and other consideration. It is well established that the purpose of expert testimony is to assist the trier of fact by providing information about a specialized field of inquiry which is likely to be outside the experience of a judge or jury: R. v. J.-L.J., 2000 SCC 51 (CanLII), [2000] 2 S.C.R. 600, 2000 S.C.C. 51, at para. 56.

[46] There is no question that expert evidence is essential to the litigation process and that many cases involving highly technical areas could not be tried without it: R. v. Abbey, 2009 ONCA 624 (CanLII), 97 O.R. (3d) 330, at para. 73.

[47] However, the nature of expert evidence and its allure of scientific infallibility give rise to the very real potential that it will “swallow whole the fact-finding function of the court”: Abbey, at para. 71. As a result, courts must remain vigilant to draw a firm line between the role of the expert and the role of the court to ensure that experts not be permitted to usurp the functions of the trier of fact: J.-L.J., at paras. 25-26. Indeed, the closer the expert’s evidence approaches an opinion on an ultimate issue, the stricter must be the application of this principle: J.-L.J., at para. 37.

[48] Nowhere is this distinction more important than in relation to the issues of credibility and reliability that a trier of fact is called upon to determine in every trial. Expert evidence on human conduct and the psychological and physical factors which may lead to certain behaviour relevant to credibility is permitted, provided the testimony goes beyond the ordinary experience of the trier of fact: R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, at pp. 248-49. Ultimate issues of credibility and reliability, however, are issues well within the experience of judges and juries and ones in respect of which no expert evidence is required: R. v. Béland, 1987 CanLII 27 (SCC), [1987] 2 S.C.R. 398, at pp. 415-16.

[49] These principles are illustrated in Marquard, which involved an allegation of aggravated assault of a child by her grandmother. At issue was the trial judge’s direction to the jury that they could rely on the expert evidence called to corroborate the truth of the child’s testimony. In ordering a new trial, the Supreme Court confirmed that the jury direction was erroneous because “the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert opinion”: p. 248. The court explained why this is so, at p. 248:
A judge or jury who simply accepts an expert’s opinion on the credibility of a witness would be abandoning its duty to itself determine the credibility of the witness. Credibility must always be the product of the judge or jury’s view of the diverse ingredients it has perceived at trial, combined with experience, logic and an intuitive sense of the matter.… Credibility is a matter within the competence of lay people. Ordinary people draw conclusions about whether someone is lying or telling the truth on a daily basis. The expert who testifies on credibility is not sworn to the heavy duty of a judge or juror. Moreover, the expert’s opinion may be founded on factors which are not in the evidence upon which the judge and juror are duty-bound to render a true verdict. Finally, credibility is a notoriously difficult problem, and the expert’s opinion may be all too readily accepted by a frustrated jury as a convenient basis upon which to resolve its difficulties. All these considerations have contributed to the wise policy of the law in rejecting expert evidence on the truthfulness of witnesses.
The court continued to comment as follows on the defamation defence of qualified privilege:
[64] The defence of qualified privilege flows from the rationale that the interest sought to be protected by the statement is considered important enough to justify allowing a person to defame another without attracting liability: R.T.C. Engineering Consultants Ltd. v. Ontario (2002), 2002 CanLII 14179 (ON CA), 58 O.R. (3d) 726 (C.A.), at para. 15.

[65] Qualified privilege attaches to the occasion when a defamatory statement is made, not to the statement itself: R.T.C. Engineering, at para. 14. A privileged occasion is “an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it”: Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130, at para. 143. Two broad categories of privileged occasions relevant to this appeal include communications intended to protect or further the legitimate interests of the publisher; and communications intended to protect or further the legitimate interests of another: Raymond E. Brown, Defamation Law: A Primer, 2nd ed. (Toronto: Thomson Canada Limited, 2013) at p. 211.

[66] In assessing whether such an interest or duty exists, the test is whether persons of ordinary intelligence and moral principle, or the great majority of right-minded persons, would have considered it a duty to communicate the information to those to whom it was published: Halls v. Mitchell, 1928 CanLII 1 (SCC), [1928] S.C.R. 125, at pp. 132-33; Raymond E. Brown, The Law of Defamation in Canada, loose-leaf (2014-Rel. 3), 2nd ed. (Toronto: Thomson Reuters Canada Limited, 1999) at pp. 13-5, 13-103.

[67] In determining whether the defence of qualified privilege is applicable, context matters. Relevant factors include the nature of the statement, the circumstances under which it was made, and by whom and to whom it was made. Reciprocity of interest is essential, and at the very heart of the defence of qualified privilege – the defendant must have some interest in making the statement and those to whom the statement is made must have some interest in receiving it: R.T.C. Engineering, at para. 16.

[68] The privileged occasion must be created by the exigency of the circumstances and not by the state of mind of the person who communicates the information. That the person communicating the information believes in its truth is irrelevant to whether the occasion is privileged, although the lack of such a belief may constitute malice, causing the privilege to be lost: R.T.C. Engineering, at para. 18; Ahmad v. Ontario Hydro, 1997 CarswellOnt 2783 (C.A.), at para. 5.

[69] Further, the privilege is to be narrowly applied and does not extend to comments that go beyond the exigency of the occasion or which are communicated to those who have no interest in receiving them: Hill, at paras. 146-147; R.T.C. Engineering, at paras. 15, 18. Simply put, “to maintain privilege a defendant must communicate appropriate information to appropriate people”: R.T.C. Engineering, at para. 18.


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