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Evidence - Expert Opinion - Compensation. Legault v. TD General Insurance Company
In Legault v. TD General Insurance Company (Ont CA, 2024) the Ontario Court of Appeal dismissed an insurance appeal where the trial court held the policy forfeit for the insured's claim fraud, here for "a false declaration with respect to her living expenses while residing outside her home".
Here the court interestingly considered the priority of 'paid experts':(2) The trial judge did not err by allowing the professional witnesses to testify
[28] The second issue involves the trial judge’s mid-trial ruling, in response to an oral motion from the appellant, which permitted TD’s former investigator and former independent adjuster to give evidence at trial as “professional witnesses”.
[29] The appellant argues that the trial judge erred in condoning TD’s payments to these professional witnesses to prepare evidence for trial. She points out that there is no rule that specifically allows for such payments and contends that “the promise of money is a direct invitation to fabrication.” In other words, the appellant submits that paid professional witnesses create a reasonable apprehension of bias.
[30] In her mid-trial ruling, the trial judge dismissed the appellant’s motion seeking to exclude their testimony. She agreed that the witnesses could be classified as “professional”. She also acknowledged that case law does not offer much guidance on the question of paying such professionals for review, preparation and trial attendance.
[31] The trial judge relied on a decision from the Nova Scotia Court of Appeal, D.W. Matheson & Sons Contracting Ltd. v. Canada (Attorney General), 2000 NSCA 44, 186 N.S.R. (2d) 62, along with other case-law in the costs context, to provide a rationale for why it may be desirable in the interests of justice to permit testimony from witnesses who have been compensated for their time. The trial judge held that, in non-criminal cases specifically, it is acceptable to receive testimony from such witnesses where it is reasonable in the circumstances, and set out a non-exhaustive list of relevant factors to consider when determining whether to permit such witnesses to testify.
[32] The trial judge’s mid-trial decision and reasons with respect to the professional witnesses reveal no error. In any event, the appellant has not challenged the trial judge’s factual findings, presumably including those findings which may have relied on the professional witnesses’ evidence.
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