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Evidence - Expert Opinion - Test (3) [White Burgess]. Guiste v. Law Society of Ontario
In Guiste v. Law Society of Ontario (Div Ct, 2026) the Divisional Court dismissed an appeal, this brought against several professional misconduct findings where: "a panel of the Hearing Division of the Law Society Tribunal found that the allegations were proven.[1] The Hearing Panel imposed a three-month suspension, and ordered that Mr. Guiste pay costs of $225,000 to the Law Society.[2] Mr. Guiste’s appeal to the Appeal Division of the Tribunal was dismissed."
Here the court considered the test for the admissibility of expert evidence:(ii) Applicable Legal Principles
[119] The two-step analytical approach to determining the admissibility of expert evidence is not in dispute and was set out in R. v. Abbey (2009), 2009 ONCA 624 (CanLII), 97 O.R. (3d) 330 (C.A.) [“Abbey #1], at paras. 76-85, and adopted in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 23. First, the party seeking to have the evidence admitted must establish the threshold requirements of admissibility set out in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9: relevance, necessity, absence of an exclusionary rule and a properly qualified expert.
[120] At the second step, sometimes referred to as the “gatekeeping step,” the court or tribunal must balance the potential risks and benefits of admitting the evidence. This will involve a number of considerations, including the subject matter of the evidence as well as the expert’s methodology, expertise and impartiality: Abbey #1, at para. 87; White Burgess, at para. 24. The primary concern is with respect to the reliability of the evidence, which is “central to its probative value and thus to the benefits of admitting it”: R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40 [“Abbey #2”], at para. 54. The second step involves an element of judicial discretion and intrudes to some extent into matters that are ordinarily only in the purview of the trier of fact: Abbey #1, at paras. 85, 89.
[121] Concerns about a proposed expert witness’s impartiality can be relevant at both stages. A proposed expert witness who is unable or unwilling to fulfill his or her duty of impartiality is not a “properly qualified expert,” so the evidence is excluded at the first stage: White Burgess, at para. 53. However, exclusion on the basis of bias at the first stage should only occur in very clear cases and will therefore be rare: White Burgess, at para. 45; Abbey #2, at para. 55. Concerns about impartiality and bias also relate to the reliability of the evidence and must form part of the cost-benefit analysis at the second stage: White Burgess, at para. 54.
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