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Nov Advocate 2017

THE ADVOCATE 827 VOL. 75 PART 6 NOVEMBER 2017 that had been retained by the plaintiff shareholders in an action against the corporation’s former auditors. The mere fact that the accountants had previously provided an opinion to the shareholders on the failure of the auditors to meet professional standards was held not to be a basis for exclusion. On the other hand, in a residential schools case, proposed evidence of a historian on the residential schools system was found to be inadmissible based, in part, on concerns about objectivity.54 Similarly, in Samson Indian Nation and Band v. Canada, the Federal Court refused to admit an expert report summarizing aspects of the Report of the Royal Commission on Aboriginal Peoples on the basis, inter alia, that the references to the report were “more properly a function of counsel in argument”.55 In other cases, the fact that expert reports contain an element of argument has been held to be a factor going to weight, where the report was otherwise found to have some value to the court.56 Counsel’s communications with an expert witness may become a focus for allegations of bias. The Advocates’ Society has provided useful guidance on communications with experts, to avoid “compromising … independence and objectivity.”57 In William v. British Columbia, the trial judge reviewed correspondence between counsel and an expert and the explanation provided for certain language used by counsel and concluded: “I am entirely satisfied … that the opinions she expressed to the court in her report and in her oral testimony are her own opinions founded on the evidence she obtained and a lifetime of experience in the fields of ethnobotany and ethnoecology.”58 CONCLUDING OBSERVATIONS Litigation of Aboriginal rights and title cases may result in a profound restructuring of social relationships and interests by the courts. Expert evidence can be of great assistance in such cases, particularly in providing a broader context for the questions being decided. It is also often essential in unearthing details from the past and in explaining them in a comprehensible fashion. At the same time, the courts have cautioned against litigation degenerating into a “contest of experts” and emphasized the importance of the trial court’s “gatekeeper” role in avoiding such a result.59 With delays and the costs of the trial process being ongoing concerns, expert evidence is frequently perceived as a culprit. Challenges particular to historical evidence include the pressures on experts to simplify or to generalize to support the theory put forward by the party calling them, and the difficulty in finding an objectively identifiable methodology that can be easily applied to test historical evidence through the adversary process.


Nov Advocate 2017
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