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Evidence - Expert Opinion - Credibility. Elkolaly v. Elsakhawy
In Elkolaly v. Elsakhawy (Div Ct, 2026) the Divisional Court allowed a family law appeal, here where "the primary issue is whether an expert opinion tendered by way of affidavit for a scheduled temporary parenting motion should have been struck out on the grounds of bias and removed from the motion record".
Here the court considers the common law treatment of bias in expert evidence:[44] The common law rule in relation to bias and expert testimony was that bias was a matter going to weight and not to admissibility. This rule has not been entirely displaced. In White Burgess at paragraphs 33 – 45, the Supreme Court held that lack of independence and impartiality on the part of an expert may go to “the admissibility of the evidence in addition to being considered in relation to the weight to be given to the evidence if admitted”. At the admissibility stage, however, the primary concern is to ensure that the expert is aware of her or his primary duty to the court and able and willing to carry it out. This threshold requirement is not particularly onerous, and it will be rare that a proposed expert’s testimony should be ruled inadmissible on this basis alone.[7]
[45] Where the admissibility question has been bifurcated from the motion, as was the case here, the preliminary motions judge should be particularly reticent to usurp the ongoing gatekeeper function. Unless the proposed expert demonstrates a complete lack of understanding of his proper role or is demonstrably incapable of performing it, concern about bias should not result in exclusion of the evidence at this preliminary stage.
[46] At a trial, this preliminary decision on admissibility would be dealt with in a voir dire where the proposed expert would be subject to cross examination and bias can be probed.[8] .... . Hemmings v. Peng
In Hemmings v. Peng (Ont CA, 2024) the Ontario Court of Appeal allowed an appeal from a medical malpractice case, here where a pregnant patient had a heart attack during surgery resulting in brain damage.
Here the court considers findings of credibility of expert witnesses:[44] It is up to trial judges to determine to what extent, if it all, they find each expert credible and their evidence reliable: R v. Doodnaught, 2017 ONCA 781, 358 C.C.C. (3d) 250, at para. 129. The weight to be given to an expert’s opinion is within the trial judge’s discretion and owed deference on appeal on the same basis as other findings of fact: R. v. S.A.B., 2003 SCC 60, [2003] 2 S.C.R. 678, at paras. 62-63; Palichuk v. Palichuk, 2023 ONCA 116, at para. 55; Slocan Forest Products Ltd. v. Trapper Enterprises Ltd., 2011 BCCA 351, at para. 16. On this issue, I am satisfied that the trial judge did not misapprehend the evidence; it could reasonably support the conclusion reached by the trial judge: Lapointe v. Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] 1 S.C.R. 351 at pp. 358-360. I therefore see no basis for appellate intervention.
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