Tag: Bias

BC Court of Appeal – Alleged Witness Financial Gain is Fair Game in Injury Claim Cross Examination

The BC Court of Appeal addressed the fair scope of witness cross examination with respect to alleged bias in reasons for judgement released last week.
In last week’s case (Mazur v Lucas) the Plaintiff was employed as a legal secretary for a Vancouver law firm.  While on disability leave she was involved in a collision.  She sued for damages alleging the collision related injuries prevented her from returning to work.
The Plaintiff was represented by a lawyer from the firm that she worked at.  In the course of the trial the firm’s Human Resources Manager testifed with respect to the Plaintiff’s “excellent work performance“.   The Defendant’s lawyer cross examined this witness, suggesting bias in that the firm may financially gain if the jury awarded significant damages as the claim was likely being prosecuted by the firm on a contingency basis.  Although this evidence did not lead to any harmful admissions the Plaintiff argued the cross examination was prejudicial.  The BC Court of Appeal found that this line of questioning was fair game and in reaching this conclusion provided the following reasons:
[21]         The respondents’ cross-examination opened by noting that Ms. Mazur was being represented by a lawyer from Clark Wilson. The respondents’ counsel put the suggestion to Ms. Morrison that personal injury cases are generally dealt with by contingency fee agreements and that Clark Wilson possibly stood to gain from any award Ms. Mazur received. Ms. Morrison stated she had no knowledge of the fee arrangement. Ms. Mazur’s counsel did not object to this line of questioning and even re-examined the witness in this area.
[22]         After the witness and the jury were excused, Ms. Mazur’s counsel asserted the questions were improper, suggesting counsel was insinuating that Ms. Morrison’s testimony was influenced by the likelihood that her firm had a financial interest in the outcome of the trial.  He asked the judge to tell the jury to disregard this evidence in her charge. Counsel did not make a mistrial application.
[23]          In her final charge to the jury, the trial judge referenced the cross-examination of Ms. Morrison and  instructed the jury as follows:
…The defendants say there is reason for Ms. Morrison to be biased in her evidence.  I should note, however, that while it is entirely up to you to decide if you thought Ms. Morrison had any reason to be biased in her evidence, that not only is there no evidence to support a suggestion that the law firm of Clark Wilson might benefit from this lawsuit, such a consideration is not relevant to your deliberations.  I do not believe [counsel for the respondent] was suggesting through her questions that you should draw such an inference.  She was merely reciting a number of factors that you might properly consider as to bias.  In any event, such a consideration, that is, whether Clark Wilson might benefit from this lawsuit, is irrelevant to your considerations.
[24]         There was no objection to this instruction. However, on appeal, Ms. Mazur submits this instruction was ambiguous, confusing and insufficient. She contends that the comments resulted in placing an irrelevant and highly prejudicial notion in the minds of the jury that any award would benefit Ms. Mazur’s lawyer.  Ms. Mazur believes the jury was influenced by the suggestion that the law firm stood to gain financially.
[25]         I agree with the respondents that the questions put to Ms. Morrison on cross-examination appropriately probed any potential bias arising out of her dual role as a witness from the law firm employing Ms. Mazur and as a management employee of the law firm representing Ms. Mazur. The cross-examination of a witness with respect to potential bias is a legitimate subject of questioning.
[26]         The judge’s instructions were straightforward and correct in law. She properly left the jury with the task of evaluating Ms. Morrison’s evidence and, in particular, of assessing whether her interest in portraying her firm in a favourable light compromised her objectivity. The judge also explained to the jury that there was no evidence to suggest that Clark Wilson had a pecuniary interest in the outcome of the case and, in any event, no basis on which it could find that any such interest might have influenced Ms. Morrison’s testimony.
[27]         I am of the view that the impugned instructions were comprehensible and unobjectionable. I am strengthened in this view by the fact that the appellant’s trial counsel raised no objection to them. Counsel was in a good position to assess the adequacy of the instructions in the context of the evidence and of the charge as a whole, and his failure to object is, in my opinion, telling. I would not accede to this ground of appeal.

Keeping Damaging Evidence Out; Bias and Necessity


An imporant skill of a trial lawyer is being able to persuade the Court, in appropriate circumstances, to exclude expert opinion evidence that is damaging to your client’s case.  Two of the many objections that can be raised against opposing expert evidence are bias and lack of necessity.   Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with these areas of the law.
In today’s case (Beazley v. Suzuki Motor Corporation) the Plaintiff was injured in a 1994 roll-over car crash.  The Plaintiff claimed that the design of the vehicle involved was defective and sued various parties including GMC.  GMC argued that the vehicle was not negligently designed and further that the Plaintiff was the author of her own misfortune for failing to wear her seatbelt.
In support of their case the Defendants obtained two expert reports.  The first was a report from an engineer (who was an employee of the Defendant GMC) who provided opinions about the handling, stability and rollover characteristics of the vehicle in question and whether the vehicle was defective.  The second was the report of a statistician who addressed the injury risk to belted and unbelted occupants in rollover accidents.
The Plaintiff applied to exclude these reports from evidence.  They argued that the engineer’s employment relationship with the Defendant at the very least created a reasonable apprehension of bias that should disqualify him from acting as an expert.  With respect to the statistician’s report the Plaintiffs argued that this evidence was not helpful for the Court.
Mr. Justice Goepel rejected the Plaintiff’s submissions with respect to bias but did agree with the submissions with respect to the statistical evidence.  In coming to these conclusions Mr. Justice Goepel provided the following useful summaries of these areas of law:

  • BIAS

[20] Canadian courts appear to have taken different positions on the issue of whether an expert witness’ bias or perceived bias will disqualify him or her from giving evidence at trial. Some courts have held that for expert evidence to be admissible, the expert must be seen to be absolutely neutral and objective. Other courts have concluded that a lack of objectivity, neutrality and independence are matters that only impact the weight to be afforded that expert. Romilly J. in United City Properties Ltd. v. Tong, 2010 BCSC 111 at paras. 35-68, has exhaustively reviewed the jurisprudence.

[21] The cases are not easily reconciled. Where there is a personal relationship between the proposed expert and the party, where the expert has been personally involved in the subject matter of the litigation or where the expert has a personal interest in the outcome, the expert has not been allowed to testify. Examples of such cases are Fellowes, McNeil v. Kansa General International Insurance Co. (1998), 40 O.R. (3d) 456 (Gen. Div.); Royal Trust Corporation of Canada v. Fisherman (2000), 49 O.R. (3d) 187 (Sup. Ct. J.);  Bank of Montreal v. Citak, [2001] O.J. No. 1096 (Sup. Ct. J.); and Kirby Lowbed Services Ltd. v. Bank of Nova Scotia, 2003 BCSC 617. In cases where the relationship between the expert and the party is more institutional in nature, the evidence has been admitted subject to weight. Examples of such cases are R. v. Klassen, 2003 MBQB 253 and R. v. Inco Ltd.(2006), 80 O.R. (3d) 594 (Sup. Ct. J.).

  • NECESSITY

[28] Expert opinion evidence is admissible only where a judge or jury are unable, due to the technical nature of the facts, to draw appropriate inferences. The defendants seek to call Ms. Padmanapan’s statistical evidence in order to establish a causal connection between a failure to wear a seatbelt in the course of a rollover accident and increased injuries. In certain circumstances statistical evidence can be helpful in determining causation:  Laferrière v. Lawson, [1991] 1 S. C.R. 541.

[29] It has been long recognized in British Columbia that a party who fails to use an available seatbelt and sustains injuries more severe than if the seatbelt had been worn will be found to be contributory negligent: Yuan et al. v. Farstad (1967), 66 D.L.R. (2d) 295 (B.C.S.C.); Gagnon v. Beaulieu, [1977] 1 W.W.R. 702 (B.C.S.C.).

[30] While there appears to have been statistical evidence led in Yuan and in Gagnon, subsequent cases have held that such evidence is not necessary. In Lakhani (Guardian ad litem of) v. Samson, [1982] B.C.J. No. 397 (S.C.) McEachern C.J.S.C. (as he then was) noted at para. 3:

I reject the suggestion that engineering evidence is required in these cases. The court is not required to leave its common sense in the hall outside the courtroom, and the evidence is clear that upon impact in both cases the Plaintiff’s upper body was flung or thrown forward striking the dashboard or the steering wheel. And common sense tells me that the restraint of a shoulder harness would have prevented that, and therefore some of the injury from having occurred.

[31] To succeed on the seatbelt defence, the onus will be on the defendants to establish upon a balance of probabilities that the use of a functioning seatbelt would have avoided, or minimized Ms. Spehar’s injuries:  Harrison v. Brown, [1987] 1 W.W.R. 212 (B.C.S.C.); Terracciano (Guardian ad litem of) v. Etheridge (1997), 33 B.C.L.R. (3d) 328 (S.C.).

[32] The statistical evidence to be led from Ms. Padmanapan is, in my opinion, not necessary and will not assist me as trier of fact in determining the issue of contributory negligence. If the evidence is not necessary, it does not meet the test of admissibility.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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