Court File and Parties
Ontario Court of Justice
Date: April 21, 2016
Court File No.: Toronto
Between:
Her Majesty the Queen (Prosecutor)
— And —
Live Nation Canada Inc., Optex Staging & Services Inc., and Domenic Cugliari (Defendants)
Before: Justice Nakatsuru
Heard on: March 29, April 7, 2016
Reasons for Judgment released on: April 21, 2016
Counsel
D. McCaskill, S. Succi — counsel for the Prosecution
J. Siegel, A. Grossman, J. Solomon — counsel for Live Nation Canada Inc.
D. Martin — agent for Optex Staging & Services Inc.
S. Thompson — counsel for Domenic Cugliari
NAKATSURU J.:
A. INTRODUCTION
[1] The defendants are being prosecuted for a number of offences under the Occupational Health and Safety Act, R.S.O. 1990 Chapter O.1. This is their trial. The offences are alleged to have occurred just before a scheduled musical performance by the rock group Radiohead at Downsview Park in Toronto on June 16, 2012. The performance did not go ahead. The outdoor stage collapsed. Sadly, a drum technician died.
[2] The Crown wishes to call two expert engineers to provide opinions about how that stage collapsed, Mr. Saeed Khorsand and Mr. Robert Molina. The defendant, Live Nation, objects to the admissibility of their evidence. Optex Staging and Domenic Cugliari do not. Live Nation submits that these witnesses are not qualified experts. More specifically, the defendant argues that the Crown has not proven that these two experts are able to discharge their duty as expert witnesses to me by giving fair, objective, independent, and impartial opinion evidence.
[3] For the sake of efficiency, I gave brief oral reasons in court. These are the written reasons explaining why I find that these experts are qualified to testify.
B. SUMMARY OF EVIDENCE ON THE VOIR DIRE
[4] Both Mr. Khorsand and Mr. Molina are well-qualified civil engineers. There is no need for me to outline their qualifications and related professional experience. That is not the issue. They both have worked for the Ministry of Labour for a number of years investigating occupational health and safety violations. They were also involved in the investigation of the Radiohead concert stage collapse. At various points, they were both involved in the investigation and jointly authored the expert report that the Crown wishes to rely upon.
[5] Mr. Khorsand and Mr. Molina were at the scene of the collapse. Their initial involvement was to ensure the safe retrieval of the deceased and the dismantling of the stage. Mr. Khorsand had to absent himself for part of the investigation as he had other duties. The engineers were also involved with the initial investigation of the collapse. They inspected the scene. Photographs were taken of the scaffolding stage.
[6] Mr. Jeff Lomer was the primary inspector for the Ministry of Labour. Both engineers testified that they had discussions with Mr. Lomer. Some of it was to provide technical explanations for Mr. Lomer who is not an engineer. Some of the discussions revolved around support Mr. Lomer offered to the engineers as they looked into the root cause of the roof collapse. However, both engineers testified that they were not following the direction of Mr. Lomer. They testified that they were conducting their own investigation into why the roof collapsed from a technical point of view. This was their obligation to their employer. The engineers played no role in laying the charges that are before me. They simply reported their results and except for a limited visit made by Mr. Lomer and Mr. Khorsand to the Optex business premise after the charges were laid, the report ended their involvement in the case until trial.
[7] In pursuing their objective of finding out the reason for the collapse, the engineers conducted testing and sat in on interviews that Mr. Lomer did. The interviews were the ones done with Mr. Martin, the owner of Optex, an employee of Optex, a stage rigger, Mr. Cugliari and an associate engineer at his firm. They testified they did so to provide technical assistance. As well as the interviews, they conducted testing with other retained engineers at McMaster University and a private laboratory, Acuren Laboratories. These tests were designed to examine the materials used in the stage and to assist in determining the failure point of some of the scaffolding used in holding up the stage roof.
[8] After obtaining the results of the tests, doing some calculations and using a computer model, Mr. Khorsand and Mr. Molina prepared a joint engineering report outlining their findings. In that report, which was drafted by Mr. Molina with Mr. Khorsand reviewing mostly the calculations and the computer modelling, the two engineers came up with their opinion as to why the stage roof collapsed. It is this opinion that the defendant objects to.
C. ANALYSIS
[9] First of all, there is no issue that both experts are aware of their duty to the court and willing to discharge it. The defendant does not contend that Mr. Khorsand or Mr. Molina are unwilling to discharge their duty to the court. In other words, the defendant accepts that they were being honest when they testified that they were aware of their obligations as expert witnesses and willing to discharge them in this case. After hearing their testimony, I have no hesitation in finding this to be so. They were candid and conscientious when testifying about this.
[10] Instead, the defendant submits that the two experts are unable to live up their duty as expert witnesses. Live Nation argues that when the totality of the circumstances is considered, the prosecution has not discharged its onus on a balance of probabilities. The factors relied upon by the defendant include the experts' connection to the investigation, their relationship with the primary Ministry of Labour investigator, Mr. Jeff Lomer, their employment relationship with the Ministry of Labour and the seriousness of the charges and the significance of their evidence.
[11] In assessing whether the Crown has met his onus, I must consider the leading case of White Burgess v. Abbott and Haliburton Co., 2015 SCC 23. In that case, Justice Cromwell held that the expert witness's duty to a court to give independent and impartial opinion evidence is a matter of admissibility to be considered under the threshold test of the qualifications of an expert. Once that threshold is met, then any concerns about independence and impartiality are a matter of weight, both in terms of weighing the cost and benefits of admitting the evidence and with respect to the ultimate weight placed in those opinions by the trier of fact.
[12] This duty to the court to provide fair, objective and non-partisan expert opinion overrides the parties' interests. The three components of the test are explained at para. 32 of the judgment:
Underlying the various formulations of the duty are three related concepts: impartiality, independence and absence of bias. The expert's opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert's independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party's position over another. The acid test is whether the expert's opinion would not change regardless of which party retained him or her: P. Michell and R. Mandhane, "The Uncertain Duty of the Expert Witness" (2005), 42 Alta. L. Rev. 635, at pp. 638-39. These concepts, of course, must be applied to the realities of adversary litigation. Experts are generally retained, instructed and paid by one of the adversaries. These facts alone do not undermine the expert's independence, impartiality and freedom from bias.
[13] Both the circumstances of the proposed expert and the substance of the proposed evidence have to be considered. Justice Cromwell noted that the threshold requirement was not onerous and that it would rare that an expert's opinion would be ruled inadmissible on this basis. Anything less than clear unwillingness or inability to provide a court with fair, objective, and non-partisan evidence should not lead to exclusion.
[14] The more recent case of R. v. Tang, 2015 ONCA 470 re-affirmed that an expert, in that case a forensic accountant with the Ontario Securities Commission, who was employed by and who investigated a fraud, was not automatically disqualified from giving expert opinion evidence at trial. Furthermore, the Court provided some factors to consider when the challenge was directed to the expert's participation in the investigation of a criminal offence. The Court emphasized the contextual nature of the analysis at para. 6:
The determination of whether an expert's prior connection with an investigation should disqualify that person from giving expert opinion evidence can only be made within the full context of the specific facts. The nature of the prior investigation, the role played by the individual expert in that investigation, and the nature of the proposed expert evidence would all be important considerations in the determination of whether the expert's prior involvement made the case was one of those relatively rare cases in which an expert's lack of independence or impartiality provided a basis for holding that the expert was not competent to testify. As Burgess indicates, in most cases, suggestions that an expert witness lacks independence or impartiality will go to the weight of the expert's evidence rather than its admissibility.
[15] With these legal principles in mind, let me then address the arguments of the defendant and the Crown. Throughout my decision, I appreciate that a contextual analysis must be conducted. To begin, the fact that the two experts are employed by the Ministry of Labour does not by itself impugn their independence, impartiality, or objectiveness. Burgess makes this clear that an employment relationship with a party does not automatically disqualify an expert. I also think Mr. McCaskill makes a fair point on this issue when he submits that is the Attorney General who is conducting this prosecution and not the Ministry of Labour. There is for many reasons, including constitutional ones, a degree of separation between Mr. Khorsand and Mr. Molina and the prosecution party. If an analogy can be made, the Ministry of Labour functions more like an investigating police force in these prosecutions. That said, obviously the connection between the prosecution and the Ministry of Labour is practically speaking very close.
[16] With respect to their relationship with Mr. Lomer, I accept the engineers' testimony about their interactions with him. Both witnesses were not impeached on their recollections about those interactions and the nature of the relationship. In short, I find that there was nothing in their interactions with Mr. Lomer that suggests that they identified themselves with the prosecution of the defendant. The engineers were pursuing a technical investigation for the Ministry of Labour. They worked cooperatively with the lead investigator, but they were not under his direction. When they attended with him at interviews, testing, or other investigations, it only made sense in that their involvement would be necessary from an engineering standpoint or their technical assistance would be necessary to help Mr. Lomer understand his overall investigation. At the same time, it made sense that Mr. Lomer would assist them when they needed the resources of his department. For instance in securing parts of the scaffolding for testing. I see nothing about Mr. Khorsand and Mr. Molina's relationship with Mr. Lomer that would undermine their ability to be impartial or independent.
[17] I should also point out that there has been no argument made that Mr. Lomer's own investigation has been biased or unfair to the defendant. I have already heard from Mr. Lomer at this trial and there was no attack against Mr. Lomer along these lines. So even if one assumed that Mr. Khorsand or Mr. Molina became closely identified with Mr. Lomer's cause, this does not necessarily impeach their qualification to be expert witnesses on the facts of this case.
[18] The main argument by the defendant is directed against Mr. Khorsand and Mr. Molina's own involvement. To a greater or lesser extent both were involved in the investigation of the stage collapse. It is true that they did not interview every witness or were privy to the entire investigative file. However, they did pursue a key issue which was from an engineering standpoint, the reason for the collapse. This is the focal point of the objection made by the defendant.
[19] In assessing the merits of this objection, as set out in Burgess and Tang, the nature and degree of their involvement in the investigation is an important consideration. In my view, there is a danger when any investigator, whether police or otherwise, becomes so caught up with a potential suspect that the investigator develops "tunnel-vision" in trying to solve a crime or regulatory offence. Further, when an investigator becomes so convinced about the guilt of the person(s) allegedly responsible, that investigator may have a difficult time relating his or her testimony objectively. I do not say this is always or even commonly the case. Most investigators are professional and dispassionate. But human nature being what it is, there is at times a real risk. In the past, there have been infamous cases where this has led to a miscarriage of justice. When it is an expert witness who suffers from these foibles, the judge has an important gate-keeping function. It is not simply a matter of weight as it might be for a police investigator, but it becomes a matter of admissibility.
[20] The defendant attacks the fact that these engineers were personally involved in the investigation from day one. It is argued that they were too involved to be proper experts. The defendant argues that a proper expert should be one who is retained only after the investigation is complete, is handed a brief of the fruits of the investigation, and then testifies by giving an opinion based on a hypothetical or upon the work done by others. In my opinion, with respect, this misunderstands the nature of experts who become involved in the litigation process. They need not be all cut from the same cloth. It depends upon the nature of the expert evidence. Some experts have fact evidence to give as well. For instance, physicians who may have examined a patient. Here both experts were involved in observing the scene, conducting interviews, and performing testing.
[21] In my view, I agree with the Crown that the engineer's involvement at the scene does not pose a problem. No one can take objection to their initial involvement to make the scene safe for first responders and workers so that the deceased could be removed and the stage made safe for dismantling. More germane is their participation in the early investigation of the scene while it was in its original state and as it was being dismantled. This gave the engineers the opportunity to make first hand personal observations, take photos and make measurements of what they thought was relevant using their expertise and experience. Such information could not be duplicated by simply viewing photos and measurements made by others later on. Indeed, relevant observations of the scene could well be missed if made by someone without engineering backgrounds. To have the opportunity to do this can only be invaluable to an expert in coming to an informed and objective opinion. Thus, I see nothing wrong with it. Indeed, it would be a dereliction of one's professional responsibility not to if given a chance to do so.
[22] The same can be said about the testing. As I understand the tests conducted, Mr. Khorsand and Mr. Molina, along with a panel of other engineers, were instrumental in assisting the engineers at McMaster University and Acuren Laboratories in designing and performing meaningful tests in this case. This only makes common sense since the engineers at these facilities would have no real information about what the issues were that needed to be investigated. The engineers at these facilities in a collaborative effort with the panel of other engineers and Mr. Khorsand came up with the protocols for the testing, were present for the testing, and received the results. Again, in my opinion, this involvement is consistent with the discharge of a professional engineer's obligations when engaged in the investigation of an incident. The other engineers who participated were retained by some of the other interested parties. They too cannot be said to have acted in a partisan fashion by simply participating in such testing.
[23] By engaging personally in these aspects of the investigation, far from becoming biased or partisan, the engineers gained valuable information to base their opinions. For instance, if they had not been at the site or been present for the testing, no doubt their opinions would have come under criticism at this trial. Furthermore, when it comes to presenting their opinions to the court, the fact that experts have made their own personal observations or investigations rather than relying upon others, obviates the need to call additional witnesses to lay the foundation for the opinion. It seems to me that this is an efficient use of otherwise scarce resources. To suggest like the defendant does that another expert should be retained to review these experts' investigation as a threshold requirement to admissibility adds an unnecessary layer of expense and complexity to the litigation process.
[24] Finally, the mere fact that Mr. Khorsand and Mr. Molina have a number of roles to play is not an obstacle to the receipt of their testimony. They owe a duty to their professional association. They played a technical support role to Mr. Lomer. They also conducted their own investigation for their employer. They prepared a report to be used by their employer in deciding whether to lay charges. This report is being used by the Crown in the prosecution of this case. Their testimony will provide assistance to me. The mere fact that they have a number of different roles to play does not mean they are unable to discharge their obligations within each role. It is only when those other roles makes it unlikely for them to discharge their duty to the court does it matter.
[25] At this point, let me make this observation. There are various experts who frequently find their way into the criminal courts who have been involved in the investigation of the very charges before the court. Forensic investigators provide expert opinion testimony despite being involved at various stages of the police investigation into a crime. They provide assistance in answering questions of who, what, where, how and why. Their opinions are as helpful to the police investigators in solving a crime as they are helpful to a court in determining guilt or innocence. Just as examples, these experts would include pathologists, blood-spatter experts, fire marshals, firearms experts, gang subculture experts, drug recognition experts, biologists, toxicologists, fingerprint experts, DNA experts, and accident reconstruction experts. The mere fact that an expert has somehow been involved in the investigation of the case in and of itself cannot be a ground for exclusion. Otherwise the whole litigation landscape for criminal prosecutions would change.
[26] There is one aspect of their investigation that is more of a red flag. This is the interviews that the engineers sat in on. In particular, they sat in on the interviews of Mr. Martin, the owner of Optex, and Mr. Cugliari. Both have become defendants in this very proceeding. Depending on the manner in which those interviews were conducted, I could see how those defendants could reasonably view the engineers as being somehow partial or biased against them. For instance, if those interviews were conducted aggressively, by way of cross-examination, or with the aim of obtaining admissions, this could raise reasonable concerns that the engineers were not willing or able to discharge their duty to the court. However, for a number of reasons this is not an important factor in this case. First of all, nothing in the cross-examination revealed much if anything about their attendance at the interviews. Certainly, there is no evidence the engineers conducted themselves in any fashion as I noted above. The most that the record reveals is that they were present to provide technical assistance and explanations for Mr. Lomer. Certainly the nature of the witnesses they were present for supported that. Secondly, the engineers while they have the powers of an inspector under the Occupational Health and Safety Act, do not ever use them. In other words, they did not use any powers of production or interview given inspectors under the Act. It seems to be a wise decision on the part of the Ministry of Labour to keep their engineering experts separate from the actual inspectors in any given investigation. Finally, absent actual bias or partiality, the qualification threshold test does not involve any consideration of a reasonable apprehension of bias. In Burgess, Justice Cromwell approved of the following passage in an earlier decision of theirs at para. 36 (see also para. 57):
For expert testimony to be inadmissible, more than a simple appearance of bias is necessary. The question is not whether a reasonable person would consider that the expert is not independent. Rather, what must be determined is whether the expert's lack of independence renders him or her incapable of giving an impartial opinion in the specific circumstances of the case… (Mouvement laique québécois v. Saguenay (City), 2015 SCC 16, at para. 106)
[27] The Crown has argued that there are factors supporting the finding that the engineers are able to give fair, independent, and impartial opinions. I agree with some of those factors. It is an important factor that Mr. Khorsand and Mr. Molina are professional engineers. Their professional conduct is regulated by Regulation 941, R.R.O. 1990 made pursuant to the Professional Engineers Act. There are important and serious consequences for a professional engineer in failing to abide by the rules of their profession. Pursuant to s. 77(2)(iii), a part of their Code of Ethics, these engineers shall:
not express publicly, or while the practitioner is serving as a witness before a court, commission, or other tribunal, opinions on professional engineering matters that are not founded on adequate knowledge and honest conviction.
I appreciate that the mere existence of this ethical rule is far from determinative of the issue before me. Our judicial system has been adversely affected by some well-known failures perpetrated at the hands of expert witnesses who were similarly bound by professional ethical obligations: see Inquiry into Pediatric Forensic Pathology in Ontario: Report (Goudge Report), Toronto: Ministry of the Attorney General, 2008. That said, I cannot ignore that it is an important factor to consider. It supports the Crown's proof of qualification.
[28] Another aspect of their testimony is that both Mr. Khorsand and Mr. Molina were adamant that they did not come up with a conclusion as to what the cause of the collapse was until they reviewed their complete investigation. In other words, like a proper expert, they testified that they kept an open mind throughout. Cross-examination did not impeach that testimony. This too supports the Crown's position.
[29] One factor to the contrary mentioned by the defendant is the seriousness of the offence or the consequences. I appreciate that this factor is mentioned in the case of R. v. Fabos, [2015] O.J. No. 7107 (S.C.J.), a case the defendant has put much stock in. However, when it comes to threshold admissibility, I cannot see why this factor matters. Whether the charge or consequence is serious or minor, only admissible evidence must be considered at a trial. Whether the qualification standard for expert evidence has been met does not change depending on the nature of the charge or the severity of the punishment.
[30] There is one potential way in which the seriousness of the offence or the importance of a case could factually become a part of a voir dire such as this. If the expert is somehow influenced in his or her opinion by the seriousness of the case, then it could logically play into the factual matrix of the capacity or willingness of the expert to give independent and impartial opinions. However in this case, I find after hearing from both Mr. Khorsand and Mr. Molina, it does not. They were not really even questioned about it.
[31] On the other hand, if all that the defendant means to say, as he essentially conceded in oral submissions, was that the importance of the case should mean appropriate scrutiny be given to any decision such as this, I have no quarrel. Like any other judge, I give every case the most exacting scrutiny that I can to the legal analysis required.
[32] In terms of the case law, as already noted, the defendant has put considerable reliance upon the case of R. v. Fabos. This is a trial level decision by Justice Munroe. In that case, the Crown had tendered an Ontario Provincial Police Detective Sergeant to give expert opinion evidence on drug slang. Justice Munroe ruled that although it was a close call, that opinion was not admissible after applying the test in Burgess. The basis for the ruling was due to the officer's close connection to the investigation. With all due respect, I am unable to agree with certain aspects of the decision, in particular, some of the factors considered by the learned Justice. However, I find that this case is easily distinguishable on the facts. The proposed expert in Fabos was the handler of the key police agent who made the drug purchases from the accused. The proposed expert was present behind the scenes, trained and counselled the agent and was involved in the broader police project as well as the specific investigation into the accused. More specifically, the officer trained the agent on the meaning of the street slang he was being asked to give his opinion on. Finally, Justice Munroe found that the opinion being proposed had little significance. While I would have thought that some of these factors considered by Justice Munroe are better considered under the discretionary gatekeeping role in assessing the costs and benefits of the admission of the opinions, I conclude that Fabos is quite distinguishable from the case here. Mr. Khorsand and Mr. Molina are professional engineers and not police officers. They were not primary investigators in the case. There is nothing in what they did during the investigation that is on par with instructing a police agent in purchasing drugs from the accused.
[33] Another authority relied on is R. v. Advanced Construction Techniques Ltd., [2015] O.J. No. 6130 (C.J.). In this case, it is the very same Mr. Khorsand who was the expert that was being challenged on the grounds of a lack of independence. His opinion was ruled inadmissible. I find that case to be distinguishable as well. First of all, the learned justice did not have the benefit of the Supreme Court of Canada's judgment in Burgess. As a result, the defendant directed some of its arguments that the expert's opinion raised an appearance of being biased in favour of the prosecution. Such arguments were flatly rejected in Burgess. In addition, the analytical framework set out in Burgess was not the one used by the learned Justice. Secondly, Advanced Construction Techniques Ltd. is readily distinguished on its facts. The learned Justice expressly refrained from deciding whether Mr. Khorsand's involvement in the case as an investigator in and of itself established a lack of independence. Rather, it was the expert's dealings with another witness during the course of the trial which did not accord with an order excluding witnesses made at the trial that convinced the court that Mr. Khorsand was, in that case, too identified with the prosecution, to be able to give an impartial opinion. Such facts do not exist before me. Rather, I am required to decide the very question that was left unaddressed in Advanced Construction Techniques Ltd.
[34] In my opinion, the case of Burgess has greater application on its facts to the situation before me. In that case, the shareholders were suing former auditors of the company for negligence. The expert retained by the shareholders to testify at trial belonged to the accounting firm that had initially discovered the alleged problems done in the audit of the company by the defendant accountants. It was alleged that because her firm had been involved in the initial investigation that lead to the claim of negligence, the proposed expert could not be independent since she would be in a conflict of interest as she would have had to opine on and choose between the standard of care by her own partners and that of the defendants. Justice Cromwell rejected this argument saying that the expert understood her role and duty at para. 60:
The fact that one professional firm discovers what it thinks is or may be professional negligence does not, on its own, disqualify it from offering that opinion as an expert witness. Provided that the initial work is done independently and impartially and the person put forward as an expert understands and is able to comply with the duty to provide fair, objective and non-partisan assistance to the court, the expert meets the threshold qualification in that regard. There is no suggestion here that Grant Thornton was hired to take a position dictated to it by the shareholders or that there was anything more than a speculative possibility of Grant Thornton incurring liability to them if the firm's opinion was not ultimately accepted by the court.
[35] Likewise in this case, there is no allegation that the Ministry of Labour investigation that the expert engineers participated in was somehow unfair or partial. It has not been argued that the inspector Mr. Lomer conducted his investigation unfairly or with a bias against Live Nation. With respect to the engineering aspect of the investigation, Mr. Khorsand and Mr. Molina cooperated with and provided access to engineers retained by the defendants or the relevant insurance companies during important parts of the investigation. Those non-Ministry of Labour engineers were present at the initial scene of the collapse. They were not only present during the testing at McMaster University and Acuren Laboratories done by the Ministry to watch the testing, but they were permitted to offer input in terms of what testing was to be done and how it was conducted. In my opinion, this type of cooperative investigation only enhances an expert's opinion and is very much in line with the jurisprudence regarding a duty an expert has to the court.
[36] Equally, like the expert in Burgess, if Mr. Khorsand or Mr. Molina's opinions are not accepted by me, they will suffer no consequence in terms of any liability or impact on their employment or standing with their professional association.
[37] In my analysis, I must also consider the nature of the engineers' opinions in the report. In my view, this too supports the finding that they are acting independently and impartially. There is nothing on the face of the report that suggests that their involvement has led to opinions fatally flawed by partiality or the lack of objectivity. Some of their opinion is based upon mathematical calculations using engineering principles. Some of their opinion is based upon the results of the testing done by McMaster University and Acuren Laboratories; opinions of other experts not challenged on the basis of a lack of independence or impartiality. Some of their findings are supported by measurements and photographs.
[38] When it comes to the information gained by the engineers' attendance with the various witnesses at their interviews, none of this is specifically referenced in their report. It is not used to support any findings that they make. They do not comment on the reliability or credibility of any of these witnesses.
[39] The engineers do come up with a conclusion about the collapse of the roof. The defendant challenges this conclusion. However, whatever cross-examination may expose as to the weaknesses in this conclusion, it is one that a structural engineer is well within his expertise to opine upon. In other words, the opinion that is being given is not being stretched to the limits of someone's expertise which would naturally raise a concern about partiality or the lack of objectivity. Further, while this opinion is a significant aspect of the prosecution's case, it is by no means an opinion on the ultimate guilt or innocence of the defendant. The defendant is charged with numerous counts with differing elements of the offence. The cause of the roof collapse is but a portion, albeit a significant one, of what the Crown must prove in discharging its burden at the end of the day.
[40] The last argument raised by the defendant is that because the engineers have not placed an engineer's seal on the report, this should somehow disqualify their testimony. The defendant relies upon s. 53 of Regulation 941 of the Professional Engineers Act, which outlines the circumstances that an engineer must place a seal on a public document. I do not accept this argument. If anything would be a matter of weight rather than admissibility, it is this. According to the evidence heard on this voir dire, to put it in plain language, the fact that an engineer has sealed a design, document, or report is a sign to the public that the engineer stands behind it. However, according to both witnesses, when an engineer makes such a design, document or report for their employer, it is not necessary to seal the report. Mr. Molina testified that this is accepted by their professional association.
[41] The defendant argues that these engineers should have sealed their report before presenting it to me. However, to my knowledge, there is no common law or statutory authority that makes an engineer's seal on an expert report a pre-requisite to admissibility at trial. Even if failure to seal a report when presented to a court may have some professional consequence for the engineer, that not a rule of evidence. With respect to this voir dire relating to the qualification of an expert, the fact that these engineers did not seal the report has little if any relevance. At the very highest, it might be suggested that Mr. Khorsand and Mr. Molina were acting unethically and this may affect their objectivity. However, when I look at their testimony as a whole and more specifically in relation to this issue, I find the argument to be without merit. There is a valid reason given for not sealing the report that was not impeached. These engineers are not "court experts". They are being called by a party to the litigation and they are presenting an opinion set out in a report made in accordance with their obligations to their employer, the Ministry of Labour.
[42] As a result, I do not see the failure to seal the expert report as raising any issue of partiality, lack of independence, or lack of objectivity. Even if they failed to seal their report when they should have, this is a matter of weight. It does not go to admissibility.
[43] In conclusion therefore, I find that both Mr. Khorsand and Mr. Molina have met the threshold requirement to give their expert opinion evidence.
[44] Lastly, no argument was made about whether I should exercise my discretion to exclude these experts' opinions based upon a cost-benefit analysis of their evidence. Nevertheless, I feel it is my obligation to address this at least in a summary fashion. I find their evidence to be highly relevant. The cause of the collapse is a key issue. No one disputes this. The necessity for this technical evidence is obvious. Without it, a lay conclusion based on other evidence may be quite wrong. There is no prejudice to the trial process. Their testimony will not consume an undue amount of time. It will not be distracting or misleading. The fact that they offer their opinion on the root cause for the collapse although obviously very important is not the same as an opinion with respect to the guilt of the defendant. Any opinion given by the expert engineers can be properly assessed in terms of weight by me. Finally, I do not wish to say too much about this having not yet heard their testimony, but their opinions are sufficiently probative and reliable even considering the defendant's submissions about their lack of independence and impartiality for me to receive the testimony given my reasoning noted above.
[45] I have one parting comment to make. Less for this case than for other future cases. A great deal of time was taken on this voir dire. I am not criticizing anyone by pointing this out. Having conducted a lengthy qualification voir dire, I felt it was incumbent upon me to conduct a full analysis to see if the Crown has met its onus on a balance of probabilities. All that being said, I am of the view, that at the end of the day, as it was stated in Burgess there was no "realistic concern" that these witnesses were either unwilling or unable to discharge their expert duties to the court. It was really not necessary to explore this issue to any extent once the experts swore or affirmed that they were aware of and able to discharge their duties. While other cases may involve unique or exceptional facts not present here, it is my opinion that in future cases, this question could be far more efficiently dealt with when it comes to professional witnesses such as Mr. Khorsand and Mr. Molina in circumstances similar to this.
Released: April 21, 2016
Signed: "Justice S. Nakatsuru"
