Docket: T-2579-91
Citation: 2016 FC 1132
Ottawa, Ontario, October 11, 2016
PRESENT: The Honourable Mr. Justice Zinn
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BETWEEN:
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ROGER SOUTHWIND
FOR HIMSELF, AND ON BEHALF OF THE MEMBERS OF THE LAC SEUL BAND OF INDIANS
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Plaintiffs
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and
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HER MAJESTY THE
QUEEN IN RIGHT OF CANADA
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Defendant
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and
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HER MAJESTY THE
QUEEN IN RIGHT OF ONTARIO
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Third Party
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and
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HER MAJESTY THE QUEEN IN RIGHT OF
MANITOBA
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Third Party
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ORDER
AND REASONS
[1]
I have before me two objections relating to the
proposed evidence of Ms. P.M. (Patt) Larcombe whom the Plaintiff seeks to have
qualified as an expert witness.
[2]
Ontario filed an objection on July 13, 2016, to
the proposed expert witness regarding her qualifications to give opinion
evidence, pursuant to Rule 52.5 of the Federal Courts Rules. Ontario
has been joined and supported in its motion by both Canada and Manitoba. Prior
to the voir dire with respect to the qualifications of Ms. Larcombe,
Canada advised that it was objecting to the admissibility of a set of evidence
called the Focus Group Transcripts. Canada indicated that if Ms. Larcombe is
qualified to testify to some extent as an expert, then her evidence, in so far
as it relies upon the Focus Group Transcripts, ought not to be received because
the transcripts are not admissible evidence. Canada was supported in its
motion by Ontario. Manitoba took no position with respect to this objection.
Ontario’s
Objection
[3]
The voir dire was held over two days last
week during which Ms. Larcombe’s qualifications and expertise were explored in
some detail by both the Plaintiff and Ontario. Despite the objection of
Plaintiff’s counsel, the Court permitted Ontario wide latitude in its
cross-examination of Ms. Larcombe’s report and her expertise. As noted in the
Court’s ruling at that time, this was permitted in large part because Ms.
Larcombe’s professed area of expertise, cultural geography, is not an area of
expertise previously recognized by this Court or, based on my research, by any
other court in this country. Moreover, as the Ontario Court of Appeal stated
in R v Abbey, 2009 ONCA 624 at paragraph 62: “Before
deciding admissibility, a trial judge must determine the nature and scope of
the proposed expert evidence.”
[4]
Ms. Larcombe testified that there are two
streams of study in geography: physical geography and cultural geography.
Physical geography deals with the study of processes and patterns in the
natural environment like the atmosphere, hydrosphere, biosphere, and
geosphere. Cultural geography was described by Ms. Larcombe as “looking at human community relationships to the landscape;
how people relate; how they use the land; other patterns of land use.”
[5]
In opposing Ontario’s motion, the Plaintiff
submitted that Ontario had failed to comply in a timely manner with Rule 52.5,
which provides, that “a party to a proceeding shall, as
early as possible in the proceeding, raise any objection to an opposing party’s
proposed expert witness that could disqualify the witness from testifying.”
In this case, the objection to Ms. Larcombe as an expert was raised more than two
years after her report was presented to the opposing parties.
[6]
Rule 52.5 says nothing about any consequence of
a failure to make a timely objection. It was suggested that the lateness of
the objection prejudiced the Plaintiff as it would have to retain other experts
and seek an adjournment of the trial if the evidence of Ms. Larcombe was not
accepted. It was suggested that the conduct of Ontario in making this late
objection was tactical and ought not to be rewarded.
[7]
Ultimately, the qualification of an expert is a
decision for the trial judge, whether or not there has been any objection to
that proposed expert. While it would have been preferable if Ontario had
raised its concerns with the Plaintiff long ago to avoid any possible
disruption of what is scheduled to be a 100-day trial, I cannot let that stand
in the way of what I find, in part, to be a valid objection to the expertise of
this proposed witness.
[8]
In calling Ms. Larcombe, counsel stated
that the Plaintiff was looking to have her “qualified
as an expert to give evaluation on loss of use.” It was more
specifically stated that the Plaintiff is seeking to have Ms. Larcombe
qualified as an expert witness in “cultural geography
with specialty in aboriginal traditional livelihood loss of use valuation;
evaluating impacts on First Nations' livelihood and living conditions resulting
from industrial and hydroelectric development projects; and evaluating
mitigation measures aimed at reducing impacts on First Nations’ livelihood and
living conditions resulting from these projects.”
[9]
In White Burgess v Abbott and Haliburton
Company Limited, 2015 SCC 23 at paragraph 22, the Supreme Court of Canada
adopted, with minor adjustments, the two-step inquiry for admitting expert
opinion evidence as stated by the Ontario Court of Appeal in R v Abbey,
2009 ONCA 624.
[10]
At the first step of the inquiry, the proponent
of the evidence must establish the threshold requirements of admissibility.
The threshold requirements of admissibility consist of the criteria set out by
the Supreme Court of Canada in R v Mohan, [1994] 2 S.C.R. 9. Evidence that
does not meet these criteria should be excluded. The criteria are:
(a)
Relevance;
(b)
Necessity in assisting the trier of fact;
(c)
The absence of any exclusionary rule; and
(d)
A properly qualified expert.
[11]
The logical relevance of expert evidence is
determined by asking whether it relates to a fact in issue and whether it tends
to prove the fact in issue. I agree with the Plaintiff, that the proposed
evidence is relevant to the claim as framed by the Plaintiff. Indeed, this was
not challenged in the memorandum submitted by Ontario or in its oral
submissions.
[12]
Similarly, there was no suggestion that the
proposed opinion evidence ought to be excluded because it offends another rule
of evidence.
[13]
Ontario’s challenge was that the proposed
witness is not a properly qualified expert and her evidence is not necessary to
assist the trier of fact.
[14]
Let me first address whether the proposed
evidence meets the test of necessity in assisting the trier of fact.
[15]
The Supreme Court of Canada at paragraph 14 of Mohan
emphasized that the necessity requirement is not met where the proposed
evidence is merely “helpful” to the trier of
fact. The necessity of the opinion in this case requires that it provides
information which is likely to be outside the experience and knowledge of the
trial judge.
[16]
I am satisfied that this condition is also met.
The losses to which the expert speaks that resulted from the flooding of Lac
Seul and the valuation of those losses are not matters within my knowledge or
experience.
[17]
This brings me to the final question: Is Ms.
Larcombe a properly qualified expert?
[18]
The Supreme Court of Canada at paragraph 17 of Mohan
observed that an expert witness must possess “special
or peculiar knowledge through study or experience in respect of the matters on
which he or she undertakes to testify.”
[19]
The Supreme Court of Canada in R v Marquard,
[1993] 4 S.C.R. 223, quoted with approval the following passage from Sopinka,
Lederman and Bryant, The Law of Evidence in Canada (Markham:
Butterworths, 1992), at 536-37:
The admissibility of [expert] evidence does
not depend upon the means by which that skill was acquired. As long as the
court is satisfied that the witness is sufficiently experienced in the
subject-matter at issue, the court will not be concerned with whether his or
her skill was derived from specific studies or by practical training, although
that may affect the weight to be given to the evidence.
[20]
Ms. Larcombe has an undergraduate degree, a
bachelor of science in geography and a graduate degree, a master of science in
geography. It was during her graduate studies that she began to focus on the
area of cultural geography. She has had some very limited experience teaching
courses which generally can be said to fall within the rubric of cultural
geography. She has no publications that have been peer reviewed on the area of
cultural geography. She has, however, as part of her work over the past 29
years, prepared a number of reports some of which have been accepted for
publication by her clients on their websites. It would appear from her
evidence that none of these published documents contain an assessment of
economic or financial loss such as that contained in her report in this
litigation.
[21]
Ms. Larcombe has never been qualified by a court
as an expert witness. She has limited experience testifying as a witness
before one arbitrator and two tribunals. Although she describes herself as
having been called as an expert witness for one of the parties, her
qualifications were not challenged and there is no evidence that her testimony
was accepted by the arbitrator or tribunal, or even found to be of use.
[22]
During her 29 years as a consultant, Ms.
Larcombe has performed a number of studies and authored a number of reports for
her clients some of which are described in her curriculum vitae which was
entered as Exhibit 7152. She has performed retrospective loss of use
evaluation studies. As she explained, these are studies where she has looked
backwards to determine the impact a past event had from a contemporary point of
view. She described these as typically being situations where First Nation
communities have been impacted by hydroelectric projects, loss of reserve
lands, and impacts from other industries. She described her work as “after the fact, looking backwards to evaluate and put a
monetary value on what the effects were from past experiences.” The
other aspect of her work was described as predictive impact assessments. This
is where she is called upon to provide an assessment of the future impact of an
event which is planned or proposed to take place.
[23]
Specifically, Ms. Larcombe’s report in this
action provides a loss of use analysis with respect to six items under Tabs
A1-A6 of her report: Hay for livestock, food from gardens, trapping income,
food from wildlife, food and income from manomin (wild rice), and food from
fishing.
[24]
She described her methodology in estimating the
quantity of each of these that was lost from the Lac Seul First Nation
economy. She looked for information with respect to these goods prior to the
flooding in 1929 and thereafter. Where there was no such information she
looked to what she described as “credible literature” which may have been studies
done for other First Nations in the same or different decades in history. The
difference between the pre-flooding number and the post flooding number, she
explains, gives you the loss realized as a result of the flooding. She then
attaches a value to each animal or kilogram based on either an imputed or
replacement cost and she explained the process she uses in determining that.
Lastly when she was looking at the current value she would adjust that value to
its 1929 value using cost-of-living information. That, as she described it is
the accepted approach in her field of expertise.
[25]
Based on her years of work in this field, I
accept that Ms. Larcombe is an expert in the field of cultural geography and is
qualified to provide expert opinion evidence on the specific loss of use by the
Lac Seul First Nation as specified in Tabs A1-A6 of her report.
[26]
The second section of Ms. Larcombe’s
report, Tabs B1 to 4, describe “avoidable losses”
to houses, cabins and campsites, community and agricultural property and access
infrastructure, and interment sites. Ms. Larcombe testified that in assessing
avoidable costs, she was “looking at what would it have
cost in 1929 to avoid the flooding of houses, to avoid the flooding of cabins –
or not to avoid it, to address the loss of those by reconstructing new ones in
locations that would not be flooded or in the case of, for example fencing,
what was the value of those fences that were flooded and in the case of docks
what would it cost to construct docks in the year 1929” and evidence
regarding interment sites and costs. She testified that in determining
avoidable costs she relied on data where it was available that was specific to
Lac Seul, but where no such data was available she relied on her “own analysis and interpretation of other data sources that
provided an indication of the cost of building or replacing things circa 1929.”
[27]
The Plaintiff submits that Ms. Larcombe is not “being proposed to give appraisal evidence respecting the
reasonable cost of housing in 1929 [rather] she is being proposed as an expert
qualified to give an opinion on the reasonableness of the mitigation measures,
adopted or not by Canada, with respect to the First Nation’s housing loss.”
[28]
Her “reasonableness”
evaluation is based on her opinion of the cost of replacing houses and other
structures. I do not accept that Ms. Larcombe is qualified to provide an
opinion as to the value of any of these avoidable losses in 1929 as set out at
Tabs B1 to B4. Ms. Larcombe has no expertise in this area whatsoever.
Specifically, she has no expertise permitting her to offer an opinion as to the
valuation of comparable housing, cabins, other structures, fencing and docks,
and interments in 1929. There are experts in this area who can offer evidence
of assistance to the Court.
[29]
Although Ontario was prepared to accept her
evidence with respect to interment on the basis that there were no experts on
this, the Court is not prepared to accept all of her evidence in this regard.
The Court will accept her evidence of historical facts, including, for
what it may be worth, the views of the Lac Seul First Nations from the
transcripts discussed below, in Tab B4 sections 1 to 4 of her report, but not
the opinion she expresses in section 5 as in the Court’s view this is not
retrospective loss of use evaluation. The Court is in as good a position as
Ms. Larcombe to make an assessment of the costs of relocating graves set out in
section 5 of her report. She has no expertise in this area that assists the
Court and her estimate is made on personal, rather than her expert opinion.
[30]
Finally, with respect to those areas of the
proposed evidence that meet the first step of the inquiry enunciated in Abbey,
I turn to the second step of inquiry. At the second step, the judge performs a
“gatekeeping” function by balancing “the potential risks and benefits of admitting the evidence
in order to decide whether the potential benefits justify the risks.”
[31]
In Masterpiece Inc v Alavida Lifestyles Inc,
2011 SCC 27 at para 76, Justice Rothstein stated that “Courts
must fulfill their gatekeeper role to ensure that unnecessary, irrelevant and
potentially distracting expert and survey evidence is not allowed to extend and
complicate court proceedings.” The balancing exercise has been
described in many ways by the Courts. In R v J (J), 2000 SCC 51 at para
47, Justice Binnie outlined the criteria for reception to be relevance,
reliability, and necessity and the counterweights to be consumption of time,
prejudice, and confusion.
[32]
The assessment of reliability within the second
step of the inquiry utilizes a flexible approach. In Abbey at para 117,
the Ontario Court of Appeal stated that the proper question to be answered when
addressing the reliability of non-scientific theories is whether an expert’s research
and experiences has permitted the expert to develop a specialized knowledge
that is sufficiently reliable to justify placing the opinion before a judge or
jury.
[33]
Mr. Marsello for Ontario, in his
cross-examination of Ms. Larcombe pointed out a number of potential weaknesses
or deficiencies or concerns with respect to her evaluation including the
reasonableness of the assumptions that she makes in reaching her estimated
loss. The Plaintiff submits that these go to the weight to be given to her
evidence, not to the reliability of her evidence.
[34]
If I was able to say with certainty at this
stage that her opinion evidence on the value of these losses was of no or very
little weight, then it would be appropriate to exclude it as being unreliable
and of little or no value to the trial judge. However, although Mr. Marsello
has raised significant concerns in that regard, I find that I cannot reach any
conclusion in the absence of a full examination of Ms. Larcombe’s and other
witnesses’ testimony. Accordingly, at this point I cannot say that Ms.
Larombe’s evidence is unnecessary, irrelevant and potentially distracting such
that it should not be allowed.
[35]
For these reasons, I find that Ms. Larcombe is
qualified as an expert witness in cultural geography with specialty in:
1.
aboriginal traditional livelihood loss of use
valuation; and
2.
evaluating impacts on First Nations’ livelihood
and living conditions resulting from industrial and hydro development projects.
[36]
She is permitted to provide the Court with an
expert opinion on loss of use of the Lac Seul First Nation’s traditional
economy, in relation to losses it experienced on reserve lands and traditional
territory as a result of the construction of the Ear Falls Dam and flooding of
Lac Seul, specifically with respect to:
a.
decreased opportunity and success in Lac Seul
First Nation’s traditional harvesting practices;
b.
lost opportunity to harvest wild rice for human
nutritional needs and income;
c.
decreased opportunity and success in trapping
aquatic furbearer species;
d.
lost opportunity to grow vegetable products for
human nutritional needs; and
e.
lost opportunity to feed cattle that were
maintained for human nutritional needs.
[37]
She is also permitted to provide factual
historical evidence relating to interment sites of the Lac Seul First Nation
that were lost or damaged.
[38]
In sum, the Court accepts that Ms. Larcombe is
an expert and may offer the opinions she advances in Tabs A1 to A6 inclusive,
as well as the facts from historical records set out in Tab B4 sections 1 to 4,
and her opinion on interment sites of the Lac Seul First Nation that were lost
or damaged based on the historical record.
Canada’s
Objection
[39]
Canada is seeking a ruling on the admissibility
of the Focus Group Transcripts. It submits that Ms. Larcombe in parts of her
report relied “fairly extensively” on them.
Canada acknowledges that its expert, Dr. Reimer also relied, in part, on these
transcripts.
[40]
The Focus Group Transcripts are a series of
seven transcripts of focus group discussions held between 1994 and 1997.
[41]
Canada submits that this evidence is compromised
as a consequence of the way it was collected. It was collected by the Lac Seul
First Nation specifically for statements made by those interviewed about the
losses occasioned by the flooding. This is a central issue in the litigation
and the statements made by those interviewed appears to have been used by Ms.
Larcombe (I cannot speak to Ms. Reimer as I have not yet read her report) as
statements of fact as to the losses experienced by members of the Lac Seul
First Nation.
[42]
Canada submits that this evidence is compromised
because of the manner in which it was collected – having been collected from
members of the Lac Seul First Nation, by the Lac Seul First Nation specifically
for the purposes of providing evidence to be used in this action. It is not
disputed that the evidence was not given under oath, and that there has been no
cross-examination or testing of that evidence. Moreover, where the evidence
was provided in the first language of the member, it was translated by a member
of the Lac Seul First Nation.
[43]
It is unknown to the Court whether there are
living potential witnesses who can speak to the matters addressed in these
transcripts, but that is not relevant in assessing Canada’s objection.
[44]
The Plaintiff submits, and I agree, that
Canadian jurisprudence holds that experts are entitled to rely on hearsay or
out-of-court evidence or statements when forming their opinions. It is a
question of the weight to be accorded to the opinion when it relies on such
hearsay evidence.
[45]
An expert may have formed his or her opinion on
the basis of information that is not in evidence before the Court. For
example, the expert may have relied on interviews, reports of others, or
results from tests administered by others. What is essential is that the trier
of fact knows on what basis the expert formed his or her opinion. The evidence
used in this way is inadmissible as hearsay in proof of the facts asserted, but
is admissible as the basis upon which the opinion was formed.
[46]
The Plaintiff submits that the transcripts are
admissible as the basis on which Ms. Larcombe formed her opinion. It appears
to accept that the weight to be given to her opinion evidence may consider the
fact that it was based, in whole or part, on evidence collected in the manner
objected to by Canada.
[47]
Where, as here, an expert bases her opinion on
hearsay statements made by persons who are members of one of the litigants,
Justice Sopinka in R v Lavallee, [1990] 1 S.C.R. 852 at page 898, cautioned
that it ought not to be accepted without independent support:
Where,
however, the information upon which an expert forms his or her opinion comes
from the mouth of a party to the litigation, or from any other source that is
inherently suspect, a court ought to require independent proof of that
information. The lack of such proof will, consistent with Abbey, have a direct
effect on the weight to be given to the opinion, perhaps to the vanishing
point. But it must be recognized that it will only be very rarely that an
expert's opinion is entirely based upon such information, with no independent
proof of any of it. Where an expert's opinion is based in part upon suspect
information and in part upon either admitted facts or facts sought to be
proved, the matter is purely one of weight.
[48]
In the matter before the Court it is unclear
whether in all cases where Ms. Larcombe relies on the transcripts there is
other independent proof of the “facts” asserted
by the First Nation’s members. Absent such support, it is likely that the
weight given to her opinion will be close to the “vanishing
point” noted by Justice Sopinka.
[49]
Accordingly, while I agree with Canada that the
Focus Group Transcripts are not admissible for the truth of their contents, the
experts are permitted to provide an opinion based on them, provided that
opinion is otherwise within the scope of their expertise. In the case of Ms.
Larcombe, that is restricted to the retrospective loss evaluation set out in
her opinion at Tabs A1 to A6. The weight accorded that opinion will depend, in
part, on the existence of other corroborative evidence.
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