http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/66851/index.do
Bekesinski v. The Queen[1] (January 31, 2014) is an unusual technical decision on the admission of expert evidence. The expert evidence at issue purported to show that a document had been back-dated:
[2] The sole issue in this appeal is whether the Appellant is liable, as the director of D.M. Edward Cartage Ltd. (“the Company”), for unremitted amounts of taxes, Employment Insurance premiums and Canada Pension Plan contributions owed by the Company.
[3] The answer to this issue is dependant upon whether the Appellant actually signed a notice of resignation on July 20, 2006, or whether, as the Respondent contends, he signed it on a later date and, consequently, the notice of resignation has been back-dated. To support its position, the Respondent sought to have its witness, Annie Vallière, qualified as an expert in ink dating.
The first unusual aspect of the decision is that the Crown’s expert intentionally left the evidentiary foundation of her opinions out of her report with the knowledge of Crown counsel:
[23] During the voire dire, Ms. Vallière admitted on cross-examination that the opinion presented in her Report was based upon data she collected, quantitative analysis conducted on the data collected and then drawing consequent ratios. She agreed with Appellant Counsel that her report did not contain any of the methodology and testing that supported her stated opinion. She pointed out that these facts, mathematical testing and underlying assumptions were contained in her work notes but that it had not been her decision to withhold this information and analysis from the Report. At page 181 of the transcript, she stated the following in response to Appellant Counsel’s questions:
A. It is not my decision to release it. Counsel knew about it. If she didn’t release it, it’s not my decision.
Except for these references during the voire dire, the support for her stated opinion is not otherwise before this Court, either in the evidence as a schedule attached to the Report or as separately submitted by Respondent Counsel prior to, during or subsequent to the hearing.
The court reviewed the case law and literature on expert reports, both in the Tax Court and other jurisdictions. Ultimately it came to a conclusion based on common sense:
[30] An expert opinion must be supported by underlying facts, calculations, research, documents, hypotheses or whatever it is the expert is relying upon to formulate his or her opinion. Such information must be stated and included in the report, otherwise the opinion is simply that: an unsupported opinion. Ms. Vallière’s Report fails to comply with the form that Rule 145 dictates a report shall take. Further, as noted in
Haughian, at paragraph 33:
… it is not simply a matter of form. It is not for plaintiff’s counsel, or for that matter the court, to piece together various documents and attempt to determine what the report actually consists of. …
A second unusual aspect of the case was that the court declined to exercise its discretion to let the report in and adjourn the hearing to allow the appellant’s counsel to examine the underlying working files of the expert and reconvene at a later date:
[31] Respondent Counsel’s argument that the Report satisfies the practices and procedures of the Canada Border Services Agency with respect to the preparation of ink dating reports, of course, has no relevance in my determination of whether it satisfies the requirements of Rule 145. In preparing this Report for the hearing, Respondent Counsel made a decision to limit Ms. Vallière’s statement and to omit any reference to the working files which Ms. Vallière testified supported her opinion in the Report. This was a judgment call that Counsel made in preparing the conduct of her case that would come before this Court. Whatever her reasons, in my view she decided that nominal compliance with Rule 145 would suffice. That was a risk that Counsel chose to take. Counsel also made a choice not to offer these working files to Appellant Counsel or to this Court at any point, even after they became an issue.
[32] While I may have the discretion to order the Respondent to release the expert’s working files to the Appellant and to adjourn the hearing to further dates down the road to allow the Appellant additional time to review those files, to prepare a cross-examination and to decide on potential rebuttal evidence, in my opinion procedural fairness, which Rule 145 aims to accomplish not only in its wording but in its underlying object and purpose, dictates that, in the circumstances of this appeal, Ms. Vallière’s Report be excluded. In addition, I have no duty to correct Counsel’s decision to approach a case in a particular way, particularly as it relates to compliance with the Rules. Counsel must make decisions like this all the time but, unfortunately in these circumstances, I do not see my role as being an active participant in correcting the approach adopted by Respondent Counsel. To allow further adjournments in this matter would go against the very purpose underlying these expert evidence Rules, thereby promoting additional time, delays and expenses. This course of action would only undermine the very spirit and object of the Rules. In addition, I believe that Respondent Counsel’s suggestion, that the required information contained in the working papers and, in her words, “any deficiencies perceived by the Appellant” (Respondent’s Written Submissions, para 2) could be remedied through cross-examination of the expert or by requesting this Court to assign little or no weight to the Report, would not comply with a proper interpretation of Rule 145, nor would it be consistent with the spirit and purpose of the Rules.
This decision suggests that the court was not at all pleased with Crown counsel’s decision not to disclose this information earlier.
Finally, the court took a mild swipe at the appellant’s argument that no admissible evidentiary foundation had been laid for the expert evidence:
[34] Appellant Counsel’s argument is that, where there is no evidentiary foundation, in that the opinion is based only on inadmissible evidence, then the expert’s evidence may be excluded or accorded little weight. However, the Appellant did not identify any hearsay evidence or other such inadmissible evidence that Ms. Vallière relied upon in formulating her opinion. The Appellant has not argued that those items that are missing from her Report are hearsay evidence but, instead, takes issue with the Report because of the omission of those very items. These were comprised of the lab tests and calculations which are not hearsay but, rather, the expert’s firsthand knowledge, observations and so forth. In fact, quite the opposite position has been argued by the Appellant – that these missing items are imperative to the Report and should have been included. Consequently, the Appellant takes issue, not with the fact that Ms. Vallière has relied on inadmissible evidence in formulating her opinion but, rather, that the scientific data, tests, calculations and process employed by her in formulating her opinion has been omitted from the Report. It is unclear to me how Appellant Counsel’s argument respecting “no foundation” as it relates to the Supreme Court of Canada decisions, has any application to the objection that was before me.
In the result, the Crown had to proceed without expert evidence suggesting that Mr. Bekesinski’s resignation had been back-dated. It will be interesting to read the decision on the merits once it is released.
Comment: This is a practical decision that seems unimpeachable as a matter of law. It also demonstrates a court keeping a close check on the wanderings of counsel.
[1] 2014 TCC 35.