Court excludes expert evidence tendered by a director of the plaintiff

By Scott Foster

The Federal Court excluded expert evidence tendered by a director of the plaintiff. Although the director had the necessary experience to be qualified as an expert, the Court considered the opinion evidence to be “compromised by his long and intimate association” with the plaintiff and the inventor of the patents.

In considering the challenge brought by the defendant, the Court agreed that an expert’s lack of independence can render his evidence inadmissible if he is “clearly unwilling and/or unable to carry out” his duty to the Court. Turning to the alleged association between the proposed expert and the plaintiff, the Court noted that the proposed expert admitted on cross-examination he is loyal to the plaintiff. In addition, the Court described evidence from trial where the expert had been proven to be involved in the patent prosecution process and that the proposed expert communicated that he hoped the plaintiff “would take legal action” against the defendant.

Inevitably, the Court concluded that the expert “is unable to independently and impartially provide opinion evidence” and is “not qualified to provide expert evidence” at trial. As a result, the Court excluded the opinion evidence. The Court was, however, prepared to admit the expert’s fact evidence at trial.

Proslide Technology v. Whitewater West Industries 2024 FC 1439