BACKGROUND
The case concerns the admissibility and reliability of expert evidence, specifically a vocational assessment conducted by a vocational counsellor regarding the Respondent’s employability and the potential imputation of income for child and/or spousal support purposes.
The Respondent challenges the admissibility of the vocational counsellor’s report, arguing that she is not a properly qualified expert and that her testimony lacks impartiality.
THE LAW
Expert evidence is a form of hearsay and generally inadmissible unless it meets specific legal criteria. The Supreme Court of Canada (“SCC”) established that the test for assessing the admissibility of expert testimony involves two main components:
- Threshold Requirements
- Relevance
- Necessity in assisting the trier of fact
- Absence of an exclusionary rule
- A properly qualified expert
- Discretionary Gatekeeping Role of the Judge
- Once the threshold is met, the judge must balance the potential benefits of admitting the evidence against the risks, including potential confusion, time, and cost.
In White Burgess Langille Inman v Abbot and Haliburton Co., 2015 SCC 23, the SCC noted at paragraph 32:
The expert’s opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party’s position over another. The acid test is whether the expert’s opinion would not change regardless of which party retained him or her.
The expert’s duty of impartiality, independence, and absence of bias is further emphasized under Rule 20.2 of the Family Law Rules.
ANALYSIS
Applying the legal test to the present case, the court found that:
- The vocational assessment is directly relevant to the issue of imputing income for support purposes;
- The evidence is beyond the general knowledge of the trier of fact, making expert testimony necessary; and
- There is no exclusionary rule that prevents its admission.
Furthermore, the court found that the vocational counsellor met the criteria of a properly qualified expert since she possessed:
- Nearly two decades of experience in vocational counseling and workforce transition support;
- Recognized qualifications from the College of Vocational Rehabilitation Professionals; and
- A track record of independent judgment and objective analysis.
The Respondent’s argument against the vocational counsellor’s impartiality was largely based on her lack of prior court testimony experience. However, while the court considered that this was her first time testifying, any issues of presentation or confidence under cross-examination do not necessarily equate to bias or unreliability. The judge emphasized that an expert’s credibility should be assessed on the basis of their qualifications, methodology, and adherence to professional standards rather than their level of experience in a courtroom setting.