CANADA Law and Practice Contributed by: Craig Ferris KC, Marko Vesely, Shannon Hayes and Codie Chisholm, Lawson Lundell LLP
7.4 Rules That Govern Admission of Evidence The rules of evidence are governed by both statute and common law. At common law, evi- dence is admissible if it is logically relevant to one or more issues and is not covered by a rule of exclusion. Additionally, the court has discre- tion to exclude evidence if the prejudicial value outweighs its probative effect. The statutory regimes may provide for specific rules, such as those related to business records, or override common law principles on certain issues such as competency and compellability. 7.5 Expert Testimony Generally, a party must comply with the formal requirements as well as any service deadlines for the exchange of expert evidence prescribed by the rules of procedure. Additionally, if a party objects to the admissibility of that expert evi- dence, it must comply with any notice obliga- tions. When the expert is called at trial, the court will undertake a two-step analysis to determine whether the expert opinion is admissible. This is as follows. • At the first step, the expert evidence must meet four threshold requirements. It must: (a) be relevant; (b) be necessary to assist the trier of fact; (c) not fall under any other exclusionary rule prohibiting its admissibility; and (d) be presented by a properly qualified ex- pert. Evidence that does not meet these threshold requirements will be excluded. • At the second “gate-keeping step”, the court conducts a cost-benefit analysis, which requires it to balance the potential risks and benefits of admitting the evidence in order to
decide whether the potential benefits jus- tify the risks. The expert evidence may be rejected at this step if its prejudicial effect on the conduct of the trial outweighs its proba- tive value. In some jurisdictions in Canada, the court may appoint an independent expert although this is rare. 7.6 Extent to Which Hearings Are Open to the Public The default rule is that court proceedings are open to the public and the public may search and obtain copies of the court record and tran- scripts of proceedings. Commercial matters will largely rely on the com- mon law to obtain court access restrictions. Under this test, a party may be able to obtain an order to seal the record or close the proceedings to the public. These are discretionary orders that require evidence of potential harm to an inter- est and the scope of the court access restric- tion must be proportional to potential harm and impact on the court openness principle. See 1.3 Court Filings and Proceedings . 7.7 Level of Intervention by a Judge The common law court system is adversarial, meaning that the parties prepare and present their case as they see fit. However, this does not mean that a judge must be a passive listener or “sphinx”. A judge may and sometimes must ask witnesses questions, interrupt them in their testimony and if necessary call them to order. In so doing, however, the judge must not usurp the role of competent counsel or “enter the fray” as that gives rise to an appearance of partiality. Whether a judgment will be given orally or reserved and issued in writing at a later date
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