What is the test to be applied in determining whether expert evidence should be excluded on the basis of bias or partiality?
Ontario, Canada
The following excerpt is from Lane v Kock, 2015 ONSC 28 (CanLII):
The test to be applied in determining whether expert evidence should be excluded on the basis of bias or partiality is set out in Alfano v. Piersanti, 2012 ONCA 297 (CanLII) (at paras. 110f): In most cases, the issue of whether an expert lacks independence or objectivity is addressed as a matter of weight to be attached to the expert’s evidence rather than as a matter of the admissibility. Typically when such an attack is mounted, the court will admit the evidence and weigh it in light of the independence concerns. Generally, admitting the evidence will not only be the path of least resistance, but also accord with common sense and efficiency. That said, the court retains a residual discretion to exclude the evidence of a proposed expert witness when the court is satisfied that the evidence is so tainted by bias or partiality as to render it of minimal or no assistance. … If a trial judge determines that the probative value of the evidence is so diminished by the independence concerns, then he or she has discretion to exclude the evidence
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