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Nov Advocate 2017

824 THE ADVOCATE VOL. 75 PART 6 NOVEMBER 2017 In its 2015 decision in WBLI, the Supreme Court of Canada described the second, “gatekeeping” step as a “cost-benefit analysis” surrounding the value of the evidence. Evidence should be excluded “if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value or if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability.”25 In Squamish Indian Band, this consideration bolstered Justice Simpson’s decision not to admit the report in question. She concluded: “The trial time needed to accommodate this report is not commensurate with its value.”26 Similarly, in Sawridge, the Court of Appeal agreed with the trial judge in excluding expert evidence on the basis that “any minimal relevance which these reports may have is outweighed by the additional cost and delay that their admission would cause”.27 In Anderson, involving class actions brought by residential school and orphanage attendees, the Supreme Court of Newfoundland and Labrador excluded evidence from a university professor with a Ph.D. in social work to the effect that the schools “caused a common set or range of mental trauma” permitting an assessment of aggregate damages.28 Applying WBLI, Justice Stack held that the plaintiffs had failed to satisfy “the threshold requirement of establishing the reliability of the science underlying the Report”, and therefore “the prejudices to the trial process caused by relying on an opinion based upon an unproven scientific foundation outweigh the benefits” of the evidence.29 (c) The Absence of Any Exclusionary Rule Under the Mohan framework expert evidence is not admissible if “it falls afoul of an exclusionary rule separate and apart from the opinion rule itself”.30 Examples of excluded evidence include “expert evidence regarding credibility; character evidence; legal opinions regarding domestic laws; and privilege”.31 In Squamish Indian Band,32 the plaintiff Band sought to introduce a report by Thomas Berger, Q.C., providing an opinion on “the advice a reasonably diligent Indian client would have received from a competent lawyer” at the relevant times concerning the client’s legal rights and causes of action against the Crown.33 The purpose of the report was to address issues of acquiescence or laches arising from the delay in bringing forward the case in question. Simpson J. concluded the report “consists of legal argument” and was inadmissible, with the exception of certain specific facts it contained. In contrast, in Ross River, the Yukon Supreme Court rejected a challenge to a lawyer and constitutional law expert as presenting inadmissible legal opinion. Noting that the law no longer limits the ability of experts to opine


Nov Advocate 2017
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