Docket: T-1261-10
Citation:
2016 FC 1076
Toronto, Ontario, September 22, 2016
PRESENT: The Honourable Mr. Justice Diner
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BETWEEN:
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ASSOCIATION OF
CHARTERED
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CERTIFIED
ACCOUNTANTS AND
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ASSOCIATION OF
CHARTERED
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CERTIFIED
ACCOUNTANTS (UK)
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IN CANADA
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Plaintiffs /
Defendants
by Counterclaim
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and
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THE CANADIAN
INSTITUTE OF
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CHARTERED
ACCOUNTANTS,
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CHARTERED
PROFESSIONAL
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ACCOUNTANTS OF
CANADA,
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INSTITUTE OF
CHARTERED
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ACCOUNTANTS OF
ONTARIO,
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ORDRE DES
COMPTABLES
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PROFESSIONNELS
AGREES DU QUEBEC, CHARTERED PROFESSIONAL ACCOUNTANTS
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OF BRITISH
COLUMBIA AND
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CHARTERED
PROFESSIONAL ACCOUNTANTS OF ALBERTA
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Defendants
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and
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INSTITUTE OF
CHARTERED
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ACCOUNTANTS OF
ONTARIO,
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ORDRE DES
COMPTABLES
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PROFESSIONNELS
AGREES DU QUEBEC,
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CHARTERED
PROFESSIONAL ACCOUNTANTS
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OF BRITISH
COLUMBIA AND
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CHARTERED
PROFESSIONAL ACCOUNTANTS OF ALBERTA
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Plaintiffs by Counterclaim
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ORDER AND REASONS
I.
Background
[1]
This is a motion on behalf of the Defendants in
the main action to have the expert reports [the Reports] of Law Professors
Poonam Puri and Stéphane Rousseau declared inadmissible. The Defendants are
also seeking an order to bar Professors Puri and Rousseau from testifying as
expert witnesses at trial.
[2]
This motion arises within the greater context of
the Plaintiffs’ argument that the Defendants are not “public
authorities” as contemplated by subparagraph 9(1)(n)(iii) of the Trade-marks
Act, RSC, 1985, c T-13 (Loi sur les marques de commerces, LRC
(1985), ch T-13) [the Act]:
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9(1) No person shall adopt in
connection with a business, as a trade-mark or otherwise, any mark consisting
of, or so nearly resembling as to be likely to be mistaken for […]
(n) any badge, crest, emblem or
mark […]
(iii) adopted and used by any public authority, in Canada as an official
mark for goods or services
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9(1) Nul
ne peut adopter à l’égard d’une entreprise, comme marque de commerce ou
autrement, une marque composée de ce qui suit, ou dont la ressemblance est
telle qu’on pourrait vraisemblablement la confondre avec ce qui suit […]
n) tout insigne,
écusson, marque ou emblème […]
(iii) adopté
et employé par une autorité publique au Canada comme marque officielle pour
des produits ou services
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[3]
Justice Rennie explains the importance of the
benefits provided by this provision in Council of
Natural Medicine College of Canada v College of Traditional Chinese Medicine
Practitioners and Acupuncturists of British Columbia, 2013 FC 287 at para 32 [Chinese Medicine]:
This provision grants protection to a public
authority that adopts and uses an official mark. The public authority gains
exclusive use of a mark that, unlike a trade-mark, is not tied to specific
wares or services. All others are prohibited from adopting a mark that so
nearly resembles as likely to be mistaken for it in connection with a business.
It is not necessary for the public authority to demonstrate the distinctiveness
of a proposed official mark or any secondary meaning, and there is no
requirement that public notice be given of a request to the Registrar.
[4]
Professor Puri provides evidence about the
Defendants in common law jurisdictions, while Professor Rousseau does so for
the civil law province of Québec. Both Reports describe the respective home
statutes governing the Defendants. The Reports then examine elements that
factor into the question of control of the Defendants, including board
composition, funding and other indicia of corporate governance. Ultimately, the
Reports make findings on the significance of control exercised by the
government, which is a key factor in assessing whether the Defendants are
public authorities within the meaning of the Act.
[5]
The Defendants argue that this matter should be
disposed of now, rather than at trial; they contend that deferring a decision
on the admissibility of the experts to trial would be unduly prejudicial. The
Defendants put forth two primary arguments on the inadmissibility of the
Reports, namely that they are: (i) unnecessary, and (ii) subject to a rule of
exclusion, as opinions on domestic law. Given the factual context, I agree with
the Defendants, and will therefore exclude the Reports, and their authors, from
the upcoming trial. My reasons follow.
II.
Analysis
[6]
Key legal tests have been established by the
jurisprudence for each of the issues raised in this motion, namely for (A) “public authorities” under the Act, and (B) the
admission of expert evidence.
A.
The Legal Test for a Public Authority
[7]
“Public authorities” as contemplated by subparagraph 9(1)(n)(iii) of the Act, enjoy ease
of registration of their mark, as set out above. A “public
authority” is not defined under the Act. However, the Federal Court of
Appeal, in Ontario Association of Architects v Ontario Association of
Architectural Technologists, 2002 FCA 218 at paras 51-52 and 62 [Architects],
held that a public authority must (i) be subject to significant government
control and (ii) benefit the public. If this two-part test is met, the
organization benefits from the protections under subparagraph 9(1)(n)(iii) of
the Act.
[8]
The first part of the test -- significance of
government control -- is informed by considering how or to what extent “the government, directly or through its nominees, […]
exercise[s] a degree of ongoing influence in the body's governance and
decision-making similar to that often found in legislation dealing with
statutory bodies that regulate the practice of a profession in which only those
whom they license may engage, such as architecture and the law” (Architects
at para 62).
[9]
More recently, in Chinese
Medicine, Justice Rennie summarized the indicia of
government control underlying the first element of Architects’ two-part “public authority” test, as:
(1) The power to review the activities of the body;
(2) The power to request that the body undertake necessary and
desirable activities to implement the intent of its enabling legislation;
(3) The power to advise the body on the implementation of the
statutory scheme;
(4) The power to approve the exercise of the body's
regulation-marking; and
(5) The power to appoint members to the board and various
committees.
Chinese
Medicine at para 36
B.
Legal Test for the Admissibility of Expert
Opinion Evidence
[10]
In R v Mohan, [1994] 2 S.C.R. 9 at 20 [Mohan],
the Supreme Court of Canada set out what has become the standard four part-test
that must first be considered when determining the admissibility of expert
evidence. Under Mohan, the evidence must be (i) relevant; (ii)
necessary to assist the trier of fact; (iii) not subject to any exclusionary
rule; and (iv) adduced by a properly qualified expert.
[11]
Only criteria (ii) and (iii) are the subject of
this motion, as the Defendants felt they neither needed to address relevance
nor qualifications to have the evidence struck. Mohan establishes a conjunctive test: if one of its four criteria fails,
the evidence is not admissible and no further analysis is required.
[12]
On the other hand, if the evidence meets all
four Mohan criteria, the Court must nevertheless exercise its gatekeeper
role by assessing the pros and cons of admitting or excluding evidence (White
Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23 at para 24 [Burgess]). Burgess’ “gatekeeper”
(second) component of the expert’s admissibility analysis need not be traversed
in this case, because the Plaintiffs fail to satisfy two of the conjunctive Mohan
criteria: necessity, and the exclusionary rule (of domestic law).
C.
Necessity
[13]
Expert evidence must go beyond the realm of
helpfulness to be deemed “necessary”. As stated
by the Supreme Court, citing earlier British authorities on evidence (albeit in
the context of a criminal jury trial), “[a]n expert's
opinion is admissible to furnish the court with scientific information which is
likely to be outside the experience and knowledge of a judge or jury. If on the
proven facts a judge or jury can form their own conclusions without help, then the
opinion of an expert is unnecessary” (Mohan at 24, quoting Director
of Public Prosecutions v Jordan, [1977] AC 699 at 718 and R v Turner,
[1975] QB 834 at 841).
[14]
While Courts should not apply the principle of
necessity too rigorously, an overly liberal application may lead to what
Justice Sopinka described as “a contest of experts with
the trier of fact acting as referee in deciding which expert to accept”
(Mohan at 24).
[15]
Mohan further
states that the criterion of necessity may be more strictly applied in cases
where the expert evidence provides an opinion on the ultimate issue (Mohan at
24). Here, the expert evidence directly opines on the ultimate legal issue, as
will be explained below.
[16]
Recently, Justice Taylor considered the
admissibility of expert evidence in McQuaid v Prince Edward Island, 2016
PESC 26 at para 29, emphasizing that it should be used to elucidate the Court
in areas where it does not have expertise. The Court stated that expert
evidence “generally means evidence given by a person
who, through education, training or experience, has more knowledge about a
subject than the average person and who, as a result, can assist the Court in
matters for which the Court is not trained”.
[17]
Indeed, other Courts have commented on the
necessity of expert evidence being exceptional, rather than admitted by
default. In other words, there must be a factual and technical need for it. In R
v DD, 2000 SCC 43 [DD], Justice Major, writing for the majority of
the Supreme Court of Canada, reaffirmed the Mohan principle that expert
evidence must do more than merely help or assist the Court (DD at paras
46-47).
[18]
Historically at common law, witnesses could only
give factual evidence based on their experience and knowledge. However, as DD
explains, the law has since evolved to allow expert opinions in “exceptional cases” where it is “necessary to provide ‘a ready-made inference which the judge
and jury, due to the technical nature of the facts, are unable to formulate’”
(DD at paras 50-51, citing R v Abbey, [1982] 2 S.C.R. 24 at 42).
[19]
In Masterpiece v Alavida Lifestyles, 2011
SCC 27 at paras 75-76 [Masterpiece], Justice Rothstein, relying on Mohan,
held that “[t]endering factual context expert evidence
in trade-mark cases is no different than tendering expert evidence in other
contexts”, and that judges play an important gatekeeper role to ensure
that unnecessary evidence is not admitted.
[20]
In short, the admission of expert opinion
evidence is the exception, not the rule. If a Court is able to reach a
conclusion based on the facts and their application to the law, without the
opinion of experts, then those expert opinions are inadmissible. If, on the
other hand, in exceptional cases the Court is unable to reach an informed
conclusion based on the facts without the input of experts, those opinions are
admissible.
[21]
As the Plaintiffs argue that the Reports are
necessary, they bear the burden of demonstrating this criterion (Sopinka,
Lederman & Bryant: The Law of Evidence in Canada, Alan W. Bryant,
Sidney N. Lederman, Michelle K. Fuerst, 4th ed, (Toronto: Lexis
Nexis, 2014) at 12.41 [The Law of Evidence]). The Plaintiffs, in an
effort to satisfy their onus to demonstrate necessity, argue that the Reports:
(i) assist the Court in understanding the operation of provincial statute; (ii)
save the Court’s time and resources; and (iii) are accurate and complete.
[22]
While the Reports may be helpful to the extent
that they provide an overview of the parties’ governing instruments, funding
information, and assessment of other publicly available information, I do not
find them necessary. Mere helpfulness does not constitute necessity for the
admission of expert evidence.
[23]
Contrary to the Plaintiffs’ first argument,
while this Court may not review provincial statutes as often as those in the
Federal domain, the interpretation of provincial statutes nonetheless falls
squarely within the Court’s jurisdiction as a superior court of record (s. 3, Federal
Courts Act, RSC 1985, c F-7).
[24]
As to the Plaintiffs’ second argument of
efficiency, they rely on Muir v Alberta, [1995] AJ No 658 [Muir], where the trial judge made the
comment that it was more efficient to have a law professor introduce evidence
through an expert report than to have the Court review the same 900 documents
and make its own factual findings.
[25]
Muir, however, does not persuade me to
accept the Plaintiffs’ arguments for two reasons. First, the Alberta Court
published Muir prior to the publication of DD, Masterpiece
and Burgess, a fact which diminishes its persuasive value. Given today’s
case law, the “cost-benefit
analysis” undertaken by the judge in Muir (at
paras 14-15) is now more appropriate at the (Burgess) second stage, as
opposed to discussing it during the first (Mohan).
[26]
In my view, efficiency no more constitutes
necessity than does helpfulness. And in any event, the fact that the Reports
summarize the factual backdrop does not mean that the trial itself will be more
efficient, given the costs and “contest
of experts” that invariably ensue.
[27]
Third, I cannot support the admission of the
Reports simply because they are (according to the Plaintiffs) complete and
accurate. Neither completeness nor accuracy renders expert reports necessary.
These particular Reports provide an overview of the Defendants’
governance and funding structure, taking into account the relevant legislation,
professional codes of conduct, bylaws, annual reports and other publicly
available information. Based on this information, both Reports opine on the
significance of government control, which is the first part of the two-fold Architects
legal test of a “public authority”. In my view,
the Court must perform this analysis, and such argument is better left for
counsel at trial.
[28]
After considering counsel’s submissions, I do
not find that the Reports meet Mohan’s necessity criterion and
are, for that reason alone, inadmissible. While additional commentary on Mohan’s
other criteria is not formally required given that I do not find the Reports necessary,
I will nonetheless address the exclusionary rule criterion raised by the
Defendants, namely that of domestic law. On that point, I conclude that the
Reports fail to meet that arm of the Mohan test as well.
D.
Exclusionary Rule on Domestic Law Evidence
[29]
It is a well-established principle that opinion
evidence on domestic legal questions usurp the Court’s role as the expert of
law, and is thus inadmissible (Eurocopter v Bell Helicopter Textron Canada
Limitée, 2010 FC 1328 at para 11).
[30]
As noted in The Law
of Evidence at 12.164-5, judges are to determine compliance with legal
definitions, for which expert witnesses should not give evidence. Certain
subject matters go to the very heart of judicial decision-making, and courts
should be wary of expert witnesses providing advice as to how to decide those
issues.
[31]
When a legal professional testifies, the line
between admissible and inadmissible evidence often blurs, given the nature of a
legal professional’s background. Certainly, this does not mean that legal
professionals may never testify as experts: when providing insights into the
political, historical and social context of the matter, the expert's testimony
may be admissible (Québec (Procureur général) c Canada, 2008 FC
713 at paras 161-163, aff’d 2009 FCA 361, 2011 SCC 11 [Québec]). However,
at paragraph 161 of Québec, Justice de Montigny cautioned about the
Court’s ability to accept such testimony, warning about masked legal
conclusions:
[…] The role of experts is not to substitute
themselves for the court but only to assist the court in assessing complex and
technical facts. It must never be forgotten that, ultimately, it is the court
that must decide questions of law. As the British Columbia Supreme Court wrote
in Surrey Credit Union v. Willson (1990), 45 B.C.L.R. (2d) 310 (B.C.
S.C.), cited by my colleague Mr. Justice Teitelbaum in Samson Indian Nation
& Band v. Canada (2001), 199 F.T.R. 125 (Fed. T.D.), at paragraph 21:
Expert opinions will be rendered
inadmissible when they are nothing more than the reworking of the argument of
counsel participating in the case. Where an argument clothed in the guise of an
expert's opinion is tendered it will be rejected for what it is. [emphasis added]
[32]
In Québec, this Court accepted most of
the expert’s evidence as it provided contextual (historical, philosophical and
social) background on the youth juvenile system in Canada. Justice de Montigny,
however, held that part of the expert’s evidence, which dealt with a division
of powers (constitutional) issue, was inadmissible as it was strictly legal in
nature, was the type of argument counsel should be making rather than a
witness, and thus the Court “was in at least as good as
position as the witness” to undertake the analysis (at para 167).
[33]
Similarly, the Federal Courts have rejected
evidence when it purports to answer a legal question in several other cases.
For instance, in Es-Sayyid v Canada (Minister of Public Safety &
Emergency Preparedness), 2012 FCA 59 at para 41, the Court considered
whether the trial judge had a reasonable apprehension of bias, for which a law
professor prepared an expert report. The Court excluded this evidence,
concluding that it answered a legal question, and was analogous to a memorandum
of fact and law.
[34]
Likewise, in Brandon (City) v R, 2010 FCA
244 [Brandon], the Court held that evidence on the determination of
rights and obligations flowing from provincial and municipal statute should be
excluded because such questions are legal in nature and should be decided by
the judge alone. The Court noted that even had the fact
witness rather been called as an expert, his evidence as to the effect of
domestic law would have been inadmissible (Brandon at para 27). A
similar result ensued from the FCA’s review of the trial judge’s decision to
admit a lawyer’s evidence regarding bifurcation of patent litigation in Dywidag Systems International Canada Ltd v
Garford Pty Ltd, 2010 FCA 223 at paras 10-11.
[35]
The Plaintiffs argue that the exclusionary rule
does not apply because (i) the degree of government control under the Architects
test is a question of mixed fact and law; (ii) the ultimate legal issue is
not the significance of government control, but rather the public authority
status; and (iii) in the past Canadian courts have admitted expert evidence on
domestic law. I am not persuaded by any of these arguments.
[36]
First, while the Plaintiffs are correct in their
contention that (a) government control is a mixed question of fact and law from
an administrative law perspective (See You
In-Canadian Athletes Fund Corp v Canadian Olympic Committee, 2007 FC 406 at para 63), and (b) in certain circumstances, factual
opinion evidence on a given point may then answer the ultimate legal issue (David M. Paciocco & Lee Struesser in The Law of Evidence,
4th ed (Toronto: Irwin Law Inc, 2005) at 176),
I nonetheless find “significant
government control” to be a technical term in
law: it is a legal exercise, which should be reserved
for the province of the judiciary, not for experts.
[37]
In her report, Professor Puri begins by
explaining her mandate:
I am advised by counsel that in assessing
the degree of governmental control, I am to consider whether any control is
“significant” or not. When assessing whether any control is significant, I have
been told to consider whether the government, directly or through its nominees,
supervises the activities or operation of the body or otherwise exercises a
degree of ongoing influence over the body’s governance and decision-making
(Defendants’ Motion Record, Vol 1, p 17 [DMR]).
[38]
In ultimately coming to her conclusion on the
significance of government control, Professor Puri considers the following
criteria: (i) board governance and decision-making; (ii) government funding;
(iii) government reporting; (iv) ongoing governmental supervision, membership,
discipline, and development of international rules and regulations; (v) public
accounting; and (vi) standard setting and government oversight.
[39]
Professor Rousseau uses similar language and
criteria in his report, and draws a conclusion on the significance of
government control [see: DMR, Vol 1, p 262].
[40]
While the Reports do not explicitly rely on Architects,
the definition of “significant” applied by
Professors Puri and Rousseau is similar to that constructed by the Federal
Court of Appeal in Architects.
[41]
The Reports do not only offer background on the
interaction between the Defendants and the public realm or their governing
statute; they go beyond factual or contextual considerations, and draw legal
conclusions on whether the degree of government control meets the threshold of “significant”,
based on the criteria developed in the case law. It is
my view the Reports ultimately provide a legal opinion of the test established
in Architects. Accepting their conclusions would not sit well with the
jurisprudence of this Court.
[42]
Second, the Plaintiffs argue that because the
Reports are only providing opinions on a part of the Architects test,
they do not speak to the ultimate legal issue. The Plaintiffs assert the
ultimate issue is the “public
authority” status, not “significant government control.”
[43]
I find this reasoning to be a distinction
without a difference. The Reports provide legal opinions on the outcome of a
part of the common law test, which will play a vital role in determining the
Defendants’ rights under the Act. The test is conjunctive, meaning that the
Reports’ conclusions on significant government control, if accepted, would be dispositive.
In other words, if indeed the Defendants are found not to be subject to
significant government control, they cannot be considered public authorities
under the Act. This determination goes to the core of the Court’s role at
trial.
[44]
Third, the Plaintiffs cite a series of cases
where expert evidence was accepted to further the courts’ understanding of:
i.
professional and ethical standards (New
Brunswick v Rothmans Inc, [2009] NBJ No 60);
ii.
contextual background on section 127 of the Securities
Act, RSO 1990, c S5, in light of the regulatory jurisdiction of the
Securities Commission, and remedial powers of the Court in the context of class
action litigation (Fisher v IG Investment Management Ltd, 2012 ONCA 47
at paras 48-49 [Fisher]);
iii.
the harmonization of national securities regulation
(Québec (Procureure générale) v Canada (Procureure générale), 2011 QCCA
591 at para 96 [Procureure]);
iv.
norms of practice for notaries (Roberge v
Bolduc, [1991] 1 S.C.R. 374); and
v.
compliance with GST legislation, and
professional and ethical obligations of Chartered Accountants in Alberta (Hyland
v Royal Alexandra Hospital, 2000 ABQB 458 at para paras 10-15 [Hyland]).
[45]
With respect, I find none of these cases helpful
in relation to the admission of expert reports, as they do not purport to
answer a question of law. Rather, the evidence at issue merely offers
background information on contextual and factual factors peripheral to the
ultimate legal question, similar to when the Court allowed the majority of the
expert’s testimony in Québec.
[46]
One exception to this observation may be the
last case enumerated above, Hyland, where the Alberta Court of Queen’s
Bench noted that evidence was admitted to consider compliance with GST
legislation. However, I also note that each case turns on its facts and, as
such, it is difficult to comment on why the judge in Hyland relied on
the GST legislation evidence and why counsel did not object.
[47]
For whatever reason the Court permitted the
evidence into trial in Hyland over fifteen years ago, Hyland is
not a binding authority on this Court anyway. I rely on the more recent
jurisprudence from the Supreme and Federal Courts, as cited above.
[48]
For this same rationale, I also note that it is
irrelevant that Professors Puri and Rousseau have provided expert evidence
before the courts, including appellate courts, in the past (see Fisher at
paras 48-49 and Procureure at para 96, cited above). If the judges were
satisfied that the expert evidence otherwise met the Mohan criteria based
on the factual and legal backdrop at issue in those cases, it is not for me to
say differently, particularly without a full record of what transpired and what
was adduced into evidence. In this case, based on the particular facts and law
at issue, I find the Reports to be expert opinions in the guise of legal
argument: they answer the first part of a two-part domestic legal test, which
lies at the heart of this litigation.
E.
Prejudice
[49]
Both the Defendants and Plaintiffs made
submissions for and against the prejudice that would result from the admission
or rejection of the expert evidence. As my findings under the Mohan test
are dispositive of their admissibility, I need not consider the principles set
out in Burgess.
III.
Conclusion
[50]
In light of all of the above, the Defendants’
motion to declare the Reports inadmissible is granted. The Reports are declared
inadmissible in their entirety and their authors will not be permitted to
appear at trial for the Plaintiffs as expert witnesses. Costs are awarded to
the Defendants.
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