http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/108243/index.do
HLP Solution Inc. v. The Queen (February 18, 2015 – 2015 TCC 41, D’Auray J.).
Précis: CRA denied certain SRED claims made by the appellant. The Crown advised that it intended to call at trial the expert evidence of Ms. Rosu, a CRA official who had been involved at all stages of the assessment process. The appellant objected to the admission of her evidence on a preliminary motion.
The Court held that Ms. Rosu’s expert evidence was not admissible in view of her close involvement with the assessment process. Costs of the motion were in the cause.
Decision: The Court first outlined the function and duties of an expert witness:
[19] First, I would like to mention that an expert witness’s main role is to assist the Court in assessing evidence on scientific or technical matters.
[20] The Code of Conduct for Expert Witnesses is to the same effect. Under the heading General Duty to the Court, the first two sections of the Code read as follows:
1. An expert witness has an overriding duty to assist the Court impartially on matters relevant to his or her area of expertise.
2. This duty overrides any duty to a party to the proceeding, including the person retaining the expert witness. An expert witness must be independent and objective and must not be an advocate for a party.
In light of those duties the Court denied the introduction of expert evidence of Ms. Rosu, a CRA official, based on her potential lack of impartiality:
[31] In the present appeal, I determined on the voir dire that Ms. Rosu did not have the necessary impartiality to testify. In weighing the probative value of her testimony against the cost of that testimony in terms of its impact on the trial process, I decided that it was preferable to disqualify Ms. Rosu at the qualification stage.
[32] The following reasons led me to this conclusion:
- Ms. Rosu was involved at every stage of the file.
- Ms. Rosu delivered the opinion (the technical review report) that served as the basis for the assessment.
- Following the appellant’s representations, Ms. Rosu also wrote an addendum to her technical review report, in which she still upheld the same position.
- She also participated in every meeting with the appellant as the CRA’s representative.
[33] In my view, it is very difficult for a person who has been involved at every stage of a file to have the necessary detachment to give a new opinion that will disregard that person’s previous opinions.
[34] Indeed, during the voir dire, she stated that it is difficult to change one’s opinion if the facts do not change. Is that not the very difficulty that faces a person who has been involved at every stage of a file and who has given opinions at the various stages of that file?
The Court made it clear however that Ms. Rosu’s employment with CRA did not, in and of itself, operate to disqualify her:
[49] It is important to note that I am not disqualifying Ms. Rosu because she is employed by the CRA. I understand the distinction between independence and impartiality. An expert witness does not have to be independent.
[50] I also wish to point out that I do not question Ms. Rosu’s competence. She simply found herself in a difficult position.
The Crown was given additional time to obtain fresh expert evidence. Costs of the motion were in the cause.