This article continues the discussion in "
The Independence of Expert Witnesses", which was published
on April 2, 2018.
Now that we have some case law applying White Burgess
Langille Inman v Abbott and Haliburton Co., 2015 SCC 23
("White Burgess"), it may be
helpful to revisit what that case held on the issue of the
independence of expert witnesses, and how it has been applied.
1. Key Holdings in White Burgess
(1) At the threshold stage, in the
absence of a challenge, a simple attestation on the part of the
expert recognizing the duty to be fair, objective and non-partisan
will generally be sufficient. [para. 47]
(2) If the admissibility of expert
evidence is challenged on the basis of an expert's lack of
independence and impartiality, the challenger must show that there
is a realistic concern that the expert is unable and/or unwilling
to comply with the duty to be fair, objective and non-partisan. If
this is demonstrated, "the burden to establish on a
