Fridays With Rogers Partners
At our weekly firm meeting, Ankita Abraham discussed a decision in which a psychologist was not qualified as an expert witness because he lacked independence and objectivity.
In Barker v. Barker, 2019 ONSC 5906, the plaintiffs sued a mental health centre. They alleged that they were experimented on and harmed by programs and treatment at the mental health centre.
The proposed expert, Dr. Quinsey, was going to provide evidence on whether the programs at the mental health centre were clinical in nature or whether they were research and experimentation.
Dr. Quinsey has strong credentials. However, during the relevant time period, he was a staff psychologist at the mental health centre.
Justice Morgan noted that, as part of the gatekeeping function, a trial judge must examine whether a proposed expert witnesses is able and willing to carry out his or her primary duty to the court.
Justice Morgan held that Dr. Quinsey “played too integral a role in the very acts which the Defendants are now compelled to defend to be an independent, objective expert witness”.
Therefore, Dr. Quinsey was not qualified as an expert. However, he was permitted to provide evidence as a fact witness.
Matthew Umbrio addressed a decision that examined the test for staying an order pending an appeal.
In Bose v. Bangiya Parishad Toronto, 2019 ONSC 5625, the Divisional Court noted that the three-part test is:
- whether there is a serious issue to be determined on the appeal;
- whether the appellant will suffer irreparable harm if a stay is not granted; and
- whether the balance of convenience favours granting a stay.
The Divisional Court noted that the “serious issue” test presents a low threshold. It will be met provided the appeal is not frivolous or vexatious.
Regarding the second part of the test, the Divisional Court noted that “irreparable harm” is harm that cannot be compensated with an award of monetary damages later.
The “balance of convenience” refers to the comparison of possible harms caused by the granting or the refusing of the order sought.
