Superior Court of Justice – Ontario

Court File No.: FC-17-FS-52780
Date: 2025-02-24

Re: Monika Kristina Sud, Applicant
And: Rakesh Rocky Sud, Respondent

Before: J. Breithaupt Smith

Counsel:
L. Yamoah, Counsel for the Applicant
Respondent is Self-Represented

Heard: 2025-02-24

Endorsement

Introduction

[1] Expert evidence is a form of hearsay evidence, as the expert him- or herself is speaking not to personal and direct observations, but rather to opinions formed on the basis of information reported to him or her, viewed through the lens of a particular scope of expertise. Hearsay evidence is not generally admissible and therefore there must be a legal reason to create an exception to that general rule. The Supreme Court of Canada’s unanimous decision in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182 is the binding authority on the admissibility of expert testimony. The following excerpts from that decision describe the concept and provide a legal framework for assessing expert testimony (some internal citations omitted for clarity):

[14] To the modern general rule that all relevant evidence is admissible there are many qualifications. One of them relates to opinion evidence, which is the subject of a complicated exclusionary rule. Witnesses are to testify as to the facts which they perceived, not as to the inferences — that is, the opinions — that they drew from them.

[15] Not all opinion evidence is excluded, however. Most relevant for this case is the exception for expert opinion evidence on matters requiring specialized knowledge. … “the law recognizes that, so far as matters calling for special knowledge or skill are concerned, judges and jurors are not necessarily equipped to draw true inferences from facts stated by witnesses. A witness is therefore allowed to state his opinion about such matters, provided he is expert in them”; see also R. v. Abbey, [1982] 2 S.C.R. 24.

[16] Since at least the mid-1990s, the Court has responded to a number of concerns about the impact on the litigation process of expert evidence of dubious value. The jurisprudence has clarified and tightened the threshold requirements for admissibility, added new requirements in order to assure reliability, particularly of novel scientific evidence, and emphasized the important role that judges should play as “gatekeepers” to screen out proposed evidence whose value does not justify the risk of confusion, time and expense that may result from its admission.

[19] To address these dangers, R. v. Mohan, [1994] 2 SCR 9 established a basic structure for the law relating to the admissibility of expert opinion evidence. That structure has two main components. First, there are four threshold requirements that the proponent of the evidence must establish in order for proposed expert opinion evidence to be admissible: (1) relevance; (2) necessity in assisting the trier of fact; (3) absence of an exclusionary rule; and (4) a properly qualified expert.

[24] At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. The required balancing exercise has been described in various ways. In Mohan, Sopinka J. spoke of the “reliability versus effect factor” (p. 21), …. Doherty J.A. summed it up well in Abbey, stating that the “trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence”.

The Expert’s Duty

[2] Justice Cromwell for the Supreme Court continues to write with approval of the statements of expert’s duty as set out in the Ontario Rules of Civil Procedure. These have since been adopted under Rule 20.2 of the Family Law Rules. The Court emphasizes the three related concepts underlying the expert’s duty as: impartiality, independence and absence of bias.

[32] … 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.

[3] The question of compliance with the expert’s duty goes to the admissibility of his or her testimony, and not just to the weight to be ascribed to the evidence.

The Mohan Test and Vocational Assessments

[4] The full test as required under the Mohan case deals with “novel science” and addresses the question of whether opinions in an emerging area of expertise should be accepted into evidence. Here, Mr. Sud does not appear to contest the concept of vocational assessments as an expert discipline. His concern is whether Ms. Talbot-Fletcher specifically is a properly-qualified expert. So that there can be no potential future confusion on this point, I have applied the first three White Burgess/Mohan criteria to the discipline of vocational assessment (i.e. a determination of the employability of a particular individual) and I conclude that:

a. the evidence is directly relevant to a matter in issue, namely whether income should be imputed to Mr. Sud for child and/or spousal support purposes;

b. the evidence is beyond the scope of general knowledge of the trier of fact and thus an expert’s assistance is necessary; and

c. no exclusionary rule (beyond the standard concept that all hearsay evidence is presumptively inadmissible) has been identified.

Use of Vocational Assessments

[5] I pause here to note two things:

a. Courts regularly rely upon vocational assessments in addressing personal injury matters. At paragraph 94 of Reif v. Reif, 2021 ONSC 3976, Justice Carroccia referred to the Ontario Court of Appeal case of Ziebenhaus v. Bahlieda, 2015 ONCA 471 which dealt with the use of such expert evidence in personal injury litigation, and commented: “I accept the respondent’s submission that a vocational assessment may be of assistance to a court in a determination of issues relating to the applicant’s suitability to return to the workforce, support and/or imputation of income.” I agree. Arguably, vocational assessments provide the most fact-specific determination of these issues and could be seen as the gold standard of evidence for the imputation of income. There is no reason to distinguish between the utility of vocational assessments in determining damages in personal injury matters and their use in calculating support in family matters.

b. In this specific case, the concept of a vocational assessment of either party was already addressed by Justice Madsen (as she then was) in her Temporary Order of June 23, 2023, in which Her Honour ordered on consent: “Each party shall cooperate with a vocational (earning capacity) assessment, if requested by the other party. The party obtaining a vocational assessment shall pay for the cost of the assessment.”

Qualification and Impartiality of the Expert

[6] We turn then to the final portion of the White Burgess/Mohan test which requires the expert to be properly qualified. This encompasses the concept that a properly-qualified expert has a duty of impartiality. This is also the point at which the scope of work must be assessed having regard to the proposed expert’s qualifications; in some situations, an expert can be qualified to speak to certain aspects of his or her opinion but not others. It is open for the Court to conclude that some opinions offered in a report are actually outside of that individual’s sphere of expertise.

[7] Starting first with Ms. Talbot-Fletcher’s duty of impartiality, I am persuaded not simply by her signature upon the Form 20.2 acknowledgment, but more importantly by her testimony in the voir dire. In cross-examination, she attested that she was obligated to write up her report based on any conclusions that she reached regarding Mr. Sud’s employability and the job market at the applicable time. It was not, as Mr. Sud suggested, that she had been hired to provide evidence supporting Ms. Sud’s position that he was underemployed. Further, she said that she is not aware of the fees paid by the client to her employer, and that as an employee any such amounts are irrelevant to her personal financial situation. Notably, the Retainer Agreement filed as an exhibit includes the following term: “Regardless of findings and outcomes, the balance [of the fee] will be due in full, plus applicable interest, to Spencer Rehabilitation Experts…”. I therefore conclude that Ms. Talbot-Fletcher’s evidence is impartial and can be relied upon by the Court in this regard.

Scope of Expertise

[8] We turn then to Ms. Talbot-Fletcher’s expertise and the scope of the proposed testimony. As the Court of Appeal noted in R. v. Terceira (aff’d by SCC at 1999 645 (SCC), [1999] 3 SCR 866), in assessing expertise, the judge must:

…be satisfied that [the witness possesses] sufficient skill, knowledge or experience concerning the subject matter of her expertise and that the proffered opinion would likely aid the trier of fact in reaching a just determination. This condition is satisfied if the witness possesses special knowledge “going beyond the trier of fact.”

[9] I am satisfied that the assessment of an individual’s vocational abilities and the conclusion regarding the employability of such an individual in a defined marketplace goes beyond the knowledge of the trier of fact (here, the judge).

[10] Based on the following evidence given by Ms. Talbot-Fletcher, I am specifically satisfied that she personally possesses sufficient skill, knowledge and experience such that her testimony in this regard will be of assistance to the trier of fact:

• For almost two decades, she has worked in a counselling capacity in assisting individuals as they transition through the workforce for any number of varied reasons, including physical or mental disability, career change and later-life first-time employment.
• She has secured the relevant qualifications through the applicable independently self-governing professional body, the College of Vocational Rehabilitation Professionals. Such qualifications require continuing professional education, and she is in good standing with such requirements.
• In the course of securing her credentials, she in fact excelled through the program such that she successfully accelerated completion in much less than the standard time.
• She is one of 59 such certified professionals in Canada.
• Her career shift from counselling to evaluation took place 3 ½ years ago. She has since completed more than 100 vocational assessment reports, the majority of which are connected with personal injury litigation. She is currently engaged with three additional assessments for family law purposes.

First-Time Expert Testimony

[11] I note that this is Ms. Talbot-Fletcher’s first opportunity to testify in court. While this alerts me, in my evidentiary gate-keeping function, to monitor her first-time testimony, I agree with the Alberta Court of Appeal in R. v. Plourde, 2017 ABCA 367 at paragraph 5, that “there is no rule that the evidence of a ‘first time’ expert cannot be accepted.” To exclude a prospective expert on the basis that it is his or her first time testifying is not a good succession plan for our litigation system.

Cross-Examination and Admissibility

[12] In his cross-examination, Mr. Sud raised questions regarding the underlying facts supporting the conclusions reached by Ms. Talbot-Fletcher. In particular, he asserted that her conclusions are undermined because she does not know him personally and suggested that she did not obtain sufficient information from him to comment specifically upon his situation. For clarity, he is welcome to raise these questions in his cross-examination of Ms. Talbot-Fletcher regarding the substance of her report. At this stage, the question is not whether Ms. Talbot-Fletcher has reached the proper conclusions regarding Mr. Sud’s employability. The question is whether Ms. Talbot-Fletcher is qualified to undertake any vocational assessment of any person at all. I find that she is so qualified, and I admit her testimony as expert opinion evidence regarding vocational assessments in exception to the general rule against hearsay evidence.

J. Breithaupt Smith

Date: 2025-02-24