[1]           The plaintiffs (collectively referred to as the CSF) wish to tender into evidence the expert report of Professor Angéline Martel (the “Martel Report”). The defendants, the Queen in Right of British Columbia and the Minister of Education (together, the “Province”) object to the admissibility of the entire Martel Report on the ground of lack of impartiality and independence. Alternatively, the Province objects to the admissibility of paras. 21-28 of the Martel Report because they are unnecessary, amount to legal argument and do not fall within Prof. Martel’s area of expertise.

[2]           Prof. Martel is a professor of sociolinguistics and languages at Télé-université in Montreal, Quebec. She holds a Bachelor of Education, Master of Arts and a Doctorate of Philosophy from the University of Alberta. She has published extensively on linguistic minority education and has advised governments and quasi-governmental organizations on language policy.

[3]           The CSF asked Prof. Martel for her opinion with respect to the impact on a minority French-language community of the construction of a new homogeneous French-language school facility to serve that community. More particularly, she was asked for her opinion on the impact the construction of a new, homogeneous French-language school facility has on enrolment and the vitality of a minority French-language community. Prof. Martel also specifically addresses the effect of the construction of new, homogeneous French-language school facilities in a number of communities in British Columbia.

[4]           In s. 2.2 of the Martel Report, Prof. Martel sets out the “Teleological foundations” for her opinion. Specifically, in paras. 21-24, Prof. Martel reviews her understanding of the objectives of s. 23 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“Charter”), and explores the terminology used by the Supreme Court of Canada in four decisions pertaining to French-language minority education rights. In paras. 25-27, Prof. Martel uses her analysis of the cases to explain her understanding of the desired outcomes of s. 23 and the actions necessary to achieve those outcomes. In para. 28, Prof. Martel explains that the concepts she states to be the objects of s. 23 “are often analyzed through a series of indicators organized within the construct of ‘ethnolinguistic vitality’”, and explains the history and purpose of that ethnolinguistic model.

[5]           Prof. Martel was cross-examined with respect to her qualifications on April 14-15 and May 2, 2014. In the course of that evidence, she explained that paras. 21-28 of the Martel Report are her discourse analysis of s. 23 jurisprudence. She agreed that she possesses no particular legal training, and is not in a better position than the Court to understand the purposes of s. 23. She noted that her understanding of s.23 of the Charter allowed her to select the ethnolinguistic vitality model of analysis. However, she also explained that the ethnolinguistic vitality model is pervasive, and she would have been likely to select that model regardless of her interpretation of the s. 23 cases.

[6]           With respect to the substance of her responses to the questions, Prof. Martel explained that before she started her research, she was not persuaded that new, homogeneous French-language school facilities would result in increased enrolment in small French-language schools in British Columbia. However, she did expect that larger schools would see increases in enrolment because she had observed that phenomenon in other places.

[7]           Prof. Martel also gave evidence with respect to the process of preparing the Martel Report. She explained on cross-examination that she met with counsel for the CSF in Montreal and Ottawa several times to review and work on the Martel Report, and also consulted with them by telephone using Adobe Connect sessions. Prof. Martel insisted that their input was limited to proof-reading and suggestions for clarification, and that they did not influence the substance of the Martel Report in any way. Since Prof. Martel did not provide counsel for the CSF with drafts of the Martel Report and Prof. Martel typically did not exchange e-mails with counsel, there is almost no documentation of the extent of counsel’s involvement.

[8]           On cross-examination, Prof. Martel agreed that she identifies with the minority language-rights movement in Canada. However, she also explained that the fact that she identifies with the community does not prevent her from taking a critical distance in her academic work. She also indicated that although she has never been an expert for the government in a s. 23 case, she would be willing to do so if she were asked.

[9]           The Province cross-examined Prof. Martel with respect to her understanding of her role as an expert. Prof. Martel explained that she understood that she was required to be objective, document her research and present that information clearly. She agreed that her report was her independent product uninfluenced as to form or content by the exigencies of the litigation or counsel, except to the extent that counsel assisted her with the form of her report. She also agreed that her report provides independent assistance to the Court by way of an objective, unbiased opinion, and that she had assiduously sought to avoid assuming the role of an advocate. When asked whether she had considered all material facts that could detract from the opinion she expressed, she indicated that she had, but then stated that she “did select”. When asked if her report relates exclusively to matters within her expertise, Prof. Martel responded, “I hope so.”

[10]        Prof. Martel gave evidence concerning her role in other claims pursuant to s. 23 of the Charter. She confirmed that she was a plaintiff in the seminal s. 23 case of Mahe v. Alberta, 1990 CanLII 133 (SCC), [1990] 1 S.C.R. 342. She also indicated that she has prepared expert reports in support of claimants in several s. 23 cases. In Dauphinee v. Conseil Scolaire Acadien Provincial, 2007 NSSC 238, Mr. Justice Boudreau rejected Prof. Martel’s expert evidence concerning the number of s. 23 rightsholders with special needs. When asked why her evidence was rejected, she stated that she had been unable to attend the hearings, and that the judge found she had “crunched numbers”.

[11]        Prof. Martel also indicated that she had prepared an expert report for L’Association des parents de l’école Rose-des-vents v. Conseil scolaire francophone de la Colombie Britannique, 2012 BCSC 1206, (the “Petition Proceeding”), a proceeding related to this one. That report was not served or used as evidence in that proceeding. Instead, Prof. Martel swore an affidavit with her observations of the differences among schools in Vancouver, not in her capacity as an expert. Prof. Martel gave evidence that she was pleased that her affidavit made a contribution to the Court, and she thought she was pleased with the outcome of the trial decision.

[12]        The Province also pressed Prof. Martel with respect to the views she expressed in a book chapter she wrote in 1999: “Heroes, Rebels, Communities and States in Language Rights Activism and Litigation” in Miklós Kontra et al, eds, Language: A Right and a Resource: Approaching Linguistic Human Rights (New York: Central European University Press, 1999) 47 (“Heroes and Rebels”). In that chapter, Prof. Martel explores the use of litigation as an instrument of language-rights activism by analyzing the influence of litigation on social and political relations of French-language minorities in Canada. Based on that example, Prof. Martel examines “positive and negative results of [language-rights litigation] with regard to (minority) community development and social organization” and “suggests strategies for social change and minority community development through language rights activism” (at 48).

[13]        The CSF seeks to qualify Prof. Martel as an expert in the following areas:

[14]        The principles governing the admissibility of expert evidence are well-known. Expert evidence will be admitted where it meets four criteria: it must be relevant, necessary, not subject to an exclusionary rule and proffered by a properly qualified expert: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 at 20.

[15]        The Province does not take issue with the relevance of the Martel Report except to the extent that Prof. Martel lacks impartiality and independence sufficient to override the probative value of the Martel Report.

[16]        The Province does not suggest that the Martel Report is unnecessary or outside Prof. Martel’s proposed qualifications except with respect to paras. 21-28 of the Martel Report. The Province has not raised another exclusionary rule.

[17]        The Province submits that pursuant to the common law and R. 11-2(1) and (2) of the Supreme Court Civil Rules, experts are required to be independent, objective and impartial. This requirement is not controversial. It was explained by Mr. Justice Vickers in William et al v. British Columbia et al, 2005 BCSC 131 at para. 31:

[18]        The Province says that bias and lack of independence is a factor that goes to threshold admissibility of expert evidence rather than weight. The Province grounds this position in the rationale underlying the admissibility of expert evidence as an exception to the rule against opinion evidence, as well as the gatekeeper function of the court, relying on United City Properties Ltd. v. Tong, 2010 BCSC 111 and R. v. J.-L.J., 2000 SCC 51 (CanLII), [2000] 2 S.C.R. 600. The Province stresses that only relatively minor cases of lack of impartiality should be addressed with reference to weight.

[19]        The CSF disagrees, and says that except in extraordinary circumstances, potential bias and lack of independence go to weight rather than threshold admissibility. In the CSF’s submission, the reason for this rule is that a court cannot determine how bias or impartiality could have affected the reliability of the report until it has heard the evidence, cross-examination and considered the expert report as a tendered exhibit. Excluding an expert report at the stage of qualifying the expert would deprive the court of the benefit of that deeper understanding. The CSF, too, relies on United City Properties as well as R. v. Abbey, 2009 ONCA 624 at para. 87, and Alfano v. Piersanti, 2012 ONCA 297 at paras. 110-112.

[20]        In United City Properties, Mr. Justice Romilly discussed the various approaches courts have taken to allegations of bias in expert evidence. He explored how the question of bias should be logically situated in the overall expert qualification analysis, and the range of factors that could show bias on the part of an expert. He ultimately concluded that lack of impartiality can be addressed in the admissibility framework (at paras. 65-66):

[21]        Mr. Justice Romilly refers to factors useful for ascertaining bias and impartiality outlined in Casey Hill et al., McWilliams’ Canadian Criminal Evidence, looseleaf (Aurora, Ontario:  Canada Law Book, 2009) at pp.12-63 through 12-64 (the “McWilliams Factors”). Those factors appear at para. 49 of United City Properties, and consist of:

[22]        I accept that the law is as it was articulated by Mr. Justice Romilly in United City Properties. Where an expert is alleged to be biased, as gatekeeper of the trial process, the court should weigh the factors suggesting bias when considering relevance in the Mohan analysis. Courts may find it useful to have regard to the McWilliams Factors in making that determination. The question of bias may be considered as a second stage to the relevance analysis, after considering the preconditions to admissibility. Expert evidence should be excluded on the basis of bias if, in the trial judge’s opinion, the effect of that evidence is out of proportion to its reliability. After performing that cost-benefit analysis, if the court is not persuaded that the effect of the evidence is out of proportion to its reliability, the court may admit the evidence subject to weight should the expert espouse any bias. In United City Properties (at para. 69), Romilly J. admitted the report and considered its alleged bias went to its weight.

[23]        In my view, at this stage, the threshold for admissibility is a low one. Unless the existence of bias fundamentally affects the probative value of an expert report, concerns about bias will go to weight rather than to threshold admissibility. This is consistent with the approach suggested by the Court of Appeal for Ontario in Alfano, where Associate Chief Justice O’Connor wrote (at para. 110):

[24]        There was some disagreement between the parties with respect to whether expert evidence must be “seen to be” independent and unbiased, or whether actual bias is required. The question arises out of a statement in National Justice Compania Naviera S.A. v. Prudential Assurance Co. Ltd., [1993] 2 Lloyd’s Rep. 68 (QB) at 81 (“Ikarian Reefer”) that “expert evidence presented to the Court should be and should be seen to be the independent product of the expert” (emphasis added).

[25]        The Province says that the statement in Ikarian Reefer has been adopted in British Columbia, relying on William, Kirby Lowbed Services Ltd. v. The Bank of Nova Scotia, 2003 BCSC 617 and Henderson v. Bakken, 2010 BCSC 559. The Province also points out that Ikarian Reefer has also been applied in several other jurisdictions in Canada.

[26]        The CSF says that the statement in Ikarian Reefer is not the law in Canada, relying on Abbott and Haliburton Company v. WBLI Chartered Accountants, 2013 NSCA 66 at para. 125 (currently on appeal to the Supreme Court of Canada). The CSF stresses that since allegations of bias must be grounded in fact, and since bias is only one of the McWilliams Factors to be weighed in the proportionality analysis, there is no blanket prohibition against expert evidence that is seen to be biased.

[27]        In United City Properties, Romilly J. considered a line of cases that did not require actual bias in order to justify excluding experts’ evidence, as “bias was presumed from the nature of the existing relationship between the expert and the party” (at para. 41). He found those cases to be consistent with the statement in Ikarian Reefer. He also observed that while the Ikarian Reefer approach provides a bright-line rule in cases of an unmistakable appearance of bias, it is incomplete “in that more guidance is needed for those cases in which bias is present even though it may not be readily apparent from the relationship” (para. 44).

[28]        After articulating the proper approach to bias, Mr. Justice Romilly went on to state that presuming “bias arising from certain types of relationships between the party and the expert is not inconsistent with this approach, but in general, bias is a question of fact to be determined by the trial judge.” (at para. 67).

[29]        I accept the interpretation of the statement in Ikarian Reefer suggested by Romilly J. In some cases, there may be a relationship between the party and an expert that gives rise to such an appearance of bias that the evidence should not be accepted. However, the question of whether such a relationship exists is only one factor to be taken into account in the overall weighing of the evidence.

[30]        In this case, the only evidence of a relationship between Prof. Martel and the plaintiffs is her preparation of an affidavit in support of the CSF’s position in the Petition Proceeding. Prof. Martel swore that affidavit in the larger context of having prepared an expert report that ultimately was not used in the Petition Proceeding.

[31]        I also take into account that the relationship between the CSF and Prof. Martel is less proximate than in United City Properties, where Romilly J. allowed the evidence of the two experts alleged to be biased. In Edmondson v. Payer, 2011 BCSC 118, Mr. Justice Smith explained that Romilly J. allowed the evidence despite the architects’ personal financial interests in the outcome of the litigation (at paras. 68-69):

[32]        The relationship between Prof. Martel and the CSF does not give rise to such an appearance of bias that her evidence should not be accepted.

[33]        The Province bases its objection to the admissibility of Prof. Martel’s report on the cumulative effect of the following:

[34]        The Province groups these factors into four categories. First, the Province says Prof. Martel’s lack of independence is illustrated by her views on s. 23 litigation and litigants, and the collateral ends to which s. 23 litigation may be put. In particular, the Province says that Prof. Martel’s statements in Heroes and Rebels show that she rejects the neutrality and legitimacy of judicial processes, believes s. 23 can be employed to achieve collateral ends related to community building, and is predisposed to the views of s. 23 claimants. The Province says these views are irreconcilable with Prof. Martel’s role as an expert.

[35]        The CSF states that Prof. Martel’s evidence shows that while she identifies with s. 23 claimants, she is able to take a critical distance in her academic work. The CSF relies on the fact that Prof. Martel indicated she was not predisposed to believing that new facilities would result in enrollment increases in communities with small Francophone populations. The CSF urges that Heroes and Rebels must be understood in its context.

[36]        Second, the Province says Prof. Martel’s previous involvement in s. 23 litigation demonstrates her lack of impartiality. The CSF points out that Prof. Martel has a long history of working with governments and quasi-governmental organizations on language planning, and would act for a government if asked.

[37]        Third, the Province points to other aspects of Prof. Martel’s evidence, including that she has published litigation strategies for s. 23 claimants, was generally evasive on cross-examination, and gave inconsistent or implausible evidence concerning her work with counsel for the CSF. The Province also suggests that Prof. Martel’s own testimony shows that she did not comply with her duty as an expert witness.

[38]        The CSF says that by Prof. Martel’s own account, she conformed with the rules concerning the role of an expert. Further, the CSF states that the nature and substance of the Martel Report show that Prof. Martel was independent and impartial. In particular, the CSF says that Prof. Martel’s opinion is thoroughly documented and contains extensive references that allow the Province to test Prof. Martel’s conclusions by way of cross-examination or responsive expert reports.

[39]        Finally, the Province states that the involvement of counsel for the CSF in the preparation of the Martel Report give rise to concerns about Prof. Martel’s impartiality.

[40]        The Province suggests that if counsel are involved in the preparation of an expert report, it is incumbent on them to assiduously avoid doing anything that may compromise the appearance of an expert’s independence and impartiality, and should maintain contemporaneous records of their involvement to avoid any allegations that their involvement is improper.

[41]        The CSF says that counsel involvement in the preparation of expert reports should not impute bias to an expert. The CSF says that counsel play a vital role assisting witnesses to present their evidence in a manner that is clear and helpful to the court. With reference to the Martel Report in particular, the CSF points to the length of the Martel Report (which is more than 900 pages long including appendices and tables) as justification for the number of meetings with counsel. Further, the CSF says that because the report is thoroughly documented, it is not open to skewing based on the urgings of counsel.

[42]        The Province also takes the position that courts have excluded expert evidence in situations less grave than this, citing Alfano v. Piersanti, 176 A.C.W.S. (3d) 152 (rev’d, but not on this point, 2012 ONCA 297) [Alfano (S.C.J.)], Kern v. Forest, 2010 BCSC 938, and Kirby Lowbed.

[43]        In Alfano (S.C.J.), after a two-day voir dire, the trial judge excluded the evidence of an expert retained by the defendants. The trial judge concluded that the expert had become a spokesperson for the defendants, and, in doing so, did not independently verify key facts and issues. Thus, if the Court had relied on the expert’s opinion, the decision on key issues would have been tainted by the expert’s lack of impartiality (at para. 11).

[44]        Kern was an action in negligence against several chiropractors. The plaintiff tendered an expert report by a neurologist who was “an outspoken critic of chiropractic care” and had publically compared chiropracty to the tobacco industry (at para. 139). He was described as having been “glib and flippant” on cross-examination (at para. 140). He provided an opinion that the chiropractor more likely than not caused the plaintiff’s injuries. The Court concluded that he had demonstrated a pre-disposition to be critical of care by chiropractors, and had crossed the line between expert and advocate (at paras. 142 and 144).

[45]        In Kirby Lowbed, Mr. Justice Hood considered whether to admit a statement by an expert where the expert praised the business abilities and the credibility of one of the parties (at para. 7). The expert had a 25-year relationship with the parties and their company (at para. 15). Mr. Justice Hood observed that the statement was more akin to a submission by counsel than an expert report (at para. 7). The statement was struck because the expert had demonstrated a close personal relationship that created sufficient bias to remove his expert’s mantel (at para. 39).  

[46]        With respect to Prof. Martel’s personal views with respect to s. 23 litigation, I am not persuaded that Prof. Martel’s views impugn the probative value of the Martel Report. This is not a case like Kern where the expert’s personal views bear directly on the substance of the opinion which was the ultimate issue before the Court.

[47]        I do not consider that Prof. Martel’s personal views are sufficiently linked to the substance of her report that those views render her evidence unreliable. Prof. Martel’s thorough citations will allow counsel for the Province to test whether her views have had any impact on her opinion by way of cross-examination.

[48]        I also accept that Prof. Martel has attenuated her views since she wrote Heroes and Rebels. The opinions she wrote in 1999 are not relevant to the report she prepared for this action in 2014.

[49]        Prof. Martel’s involvement in other s. 23 cases is not without problems. However, Prof. Martel’s involvement as a plaintiff in Mahe does not reach the level of showing she cannot take a critical distance in her work on other s. 23 cases.

[50]        I also accept that Prof. Martel provided an opinion outside her expertise and was found by the trial judge to have made a mistake in her expert evidence in Dauphinee. I accept as well that she tried to minimize the rejection of her report in Dauphinee in her cross-examination. However, these issues do not lead me to conclude that her expert report in this case cannot be relied upon.

[51]        Turning to the Province’s third category of objections, I accept that Prof. Martel was a difficult witness in cross-examination. She is a person who cares about and is careful with language. She wishes to ensure that she is precise with the words that she chooses, and was being cross-examined in her second language. Therefore, she often disputed with counsel the form of the question she was asked.

[52]        I am also satisfied that Prof. Martel’s testimony does not show she did not conform to her role as an expert witness. Prof. Martel’s comment that she hopes her entire report falls within her expertise is best understood in its context, at the end of several days of cross-examination. While Prof. Martel confirmed that she “did select” the facts on which she relied, all experts must winnow facts to a certain extent.

[53]        With respect to the involvement of counsel for the CSF in the preparation of the Martel Report, in my view, it is quite proper for counsel to provide some feedback on the form of an expert report to ensure that the evidence is useful to the court. Prof. Martel maintains that counsel only worked with her on linguistic revisions and clarifications. The only documentary evidence available shows that at one point, counsel for the CSF provided Prof. Martel with a linguistic revision of a table to her report, which does not contain any suggestions going to the substance of Prof. Martel’s work. This is consistent with Prof. Martel’s oral evidence. Further, my impression of Prof. Martel is that she would not have allowed counsel to interfere with the integrity of her scholarly analysis.

[54]        The Province suggests that if counsel choose to assist experts with their reports, they should be required to retain records to demonstrate the extent of their involvement. In my view, such a requirement risks creating an undue financial burden for litigants. While it may be wise in some situations to retain such records, as I see it, the law does not require counsel or experts to maintain such records in case they might be called upon to dispel allegations of bias at some point in the future. Nor should it raise a suspicion of improper involvement if counsel do not retain such records.

[55]        Counsel should likewise not be required to file and serve affidavits with respect to their involvement in the preparation of an expert report to dispel any allegations of wrongdoing. That would put counsel in the difficult position of potentially being cross-examined before the Court, breaching privilege, or being unable to continue acting for their clients. A decision not to file an affidavit should not give rise to a suspicion of impropriety by counsel.

[56]        Based on my consideration of the totality of the evidence, the McWilliams Factors and the submissions of the parties, I am not persuaded that the evidence shows Prof. Martel lacks impartiality to the extent that it affects the probative value of the Martel Report. This is not a case like Alfano where an expert became a spokesperson for a party, nor does Prof. Martel have a longstanding relationship with the CSF that removes her expert’s mantel as in Kirby Lowbed. As I see it, her evidence is amenable to testing by cross-examination, and her independence should be tested in that manner, with any arising concerns to be addressed by weight.

[57]        I note that the CSF objected to the Province’s submissions concerning the admissibility of the entire Martel Report due to lack of independence and impartiality because the Province did not provide proper notice. Because of the conclusion that I have reached, it is not necessary for me to address those submissions.

[58]        In the alternative, the Province submits that paras. 21-28 of the Martel Report are inadmissible because they are outside of Prof. Martel’s expertise and concern the interpretation of s. 23 of the Charter. The CSF characterizes these paragraphs as factual assumptions underlying Prof. Martel’s choice of the ethnolinguistic vitality model. In reply, the Province stresses that on Prof. Martel’s own evidence, the paragraphs are not relevant to the opinion she expresses in the Martel Report, and that she would likely have used the ethnolinguistic vitality model in any event.

[59]        In my view, paras. 21-28 of the Martel Report are inadmissible as expert evidence. Prof. Martel’s opinion with respect to the purposes underlying s. 23 is not necessary to assist the Court. Further, Prof. Martel’s views concerning the purposes of s. 23 fall within the province of the trial judge. As well, her opinion in these paragraphs falls outside her area of expertise. Although the flavour of the paragraphs may pervade her choice of model and her opinion, Prof. Martel’s own evidence is that her s. 23 analysis is not essential to the rest of her opinion. Those paragraphs are inadmissible and will be struck from the Martel Report.

[60]        The Martel Report is generally relevant and necessary, and Prof. Martel is qualified in the areas suggested by the CSF. I am satisfied that the consideration of any lack of independence or impartiality of Prof. Martel should go to weight rather than the threshold admissibility of the Martel Report.

[61]        However, paras. 21-28 of the Martel Report are unnecessary, are inadmissible as expert evidence, and will be struck from the Martel Report.