Expert Witnesses

The Tribunal has reviewed the applicability of provisions in the Canada Evidence Act¹⁴⁷ (regulating the number of expert witnesses) to hearings under the CHRA.¹⁴⁸The issue arose when the respondent provided the Commission and the complainant with a list of 10 expert witness it proposed to call. Counsel for the complainant objected, citing section 7 of the Canada Evidence Act that requires a party to seek leave of a court or tribunal to call more than five expert witnesses.¹⁴⁹

As a point of departure, the Tribunal emphasized that a presumption of coherence and consistency should be applied when interpreting statutes adopted by the same legislature. This means that a harmonious interpretation of the Canada Evidence Act and the CHRA should be favoured. While the Tribunal explicitly declined passing judgment on any provision other than section 7 of the Evidence Act, it pointed out that the Act as a whole provides a set of basic principles applicable to any proceeding. It being an Act of general application ("a highly developed and carefully thought out body of evidence law"¹⁵⁰), the Evidence Act "should not be supplanted without a clear expression of intent from Parliament."¹⁵¹

The Tribunal also drew a distinction between substantive rules of evidence that govern questions of admissibility and rules that relate to questions of practice and procedure. Section 7 of the Canada Evidence Act is best characterized as falling within the latter. The Tribunal felt this distinction important in avoiding any perceived conflict between section 7 and the provisions found in subsection 50(3)(c) of the CHRA that empower the Tribunal to receive evidence whether or not it might be admissible in a court of law.

The Tribunal further found that the underlying purpose of section 7, which is to provide ample opportunity to present evidence without turning the proceedings into a showcase of experts, accords well with the purposes of the CHRA. Far from entrammelling the authority of the Tribunal, the provision in question arguably extends the powers of the Tribunal to control proceedings before it. In concluding that section 7 applies to human rights hearings, the Tribunal characterized it as a "reasonable compromise"¹⁵², pointing out that it could see no reason why a party should not be required to explain why more than five expert witnesses were needed to support its case.

Although case law existed that interpreted section 7 as applying to each factual issue raised, the Tribunal preferred to interpret the rule of five as applying to the total number of expert witnesses a party intended to call to establish its case as a whole. To decide otherwise, reasoned the Tribunal, "...would open the trial process to a virtually unlimited number of witnesses, particularly in a complex case, and deprive the court of its power to regulate the process."¹⁵³

Access to preliminary or draft documents used in the preparation of expert opinion evidence was at issue in a recent interlocutory decision of the Tribunal.¹⁵⁴ The respondent in the case had requested answers to a number of written questions from the Evaluation Committee mandated to evaluate jobs for the purposes of pay equity. The resultant document, entered as an exhibit at the hearing, was the basis for the opinion evidence of the expert witness. The respondent argued that it was important to understand the process by which the final document was produced, in particular the nature of discussions and exchanges that had taken place amongst members of the Committee. It therefore requested access to the preliminary and draft documents, as well as responses and comments, that led to the final adoption of the Committee's report. This request was opposed by the other parties, notably because it would be contrary to the public interest to create a precedent requiring notes, observations and interim writings of experts to be produced before the Tribunal. The other parties felt that this would just simply open the door to the systematic destruction of preliminary materials, to which a discovery order might apply, once a final document had been produced.

In deciding this issue, the Tribunal took note of diverging lines of jurisprudence. One set of past decisions excluding discovery of such preliminary materials was based upon the concept of litigation privilege. These decisions viewed the latter as akin to solicitor-client privilege to which a very high degree of confidentiality applied. Other decisions treated the concept of litigation privilege as distinct from that applied to the relationship of solicitor and client. They stand for the proposition that, once an expert witness is called at a hearing, any litigation privilege that might exist regarding preliminary materials is automatically waived. While not attempting a final resolution of the underlying divergence in the case law, the Tribunal concluded that a rule of relevancy should be applied to the requested materials. It found that there was indeed some relevance in understanding the process by which the Committee had arrived at its opinion regarding job evaluation. Accordingly, the draft documents and responses thereto were ordered produced and delivered to the respondent, with copies to all other parties.

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End Notes