Doctors who advocate can still serve as expert witnesses: Superior Court Encampment Decision

Braxton Murphy and Brendan Jowett

Neighbourhood Legal Services (NLS) recently represented 14 homeless individuals, as well as two public-interest organizations, in seeking an injunction to stop the City of Toronto from forcibly clearing homeless encampments during the pandemic. While we were unsuccessful in getting the injunction, the Court made important findings about the admissibility of two medical expert witnesses who gave evidence about the potential impacts of forcible displacement on encampment residents. Both doctors had a history of publicly advocating against the clearance of encampments and for the rights of the homeless generally.

In the decision, Black et al v City of Toronto,  the court provides important insights into how healthcare providers can balance their roles as advocates and expert witnesses. In his decision, Justice Schabas recognizes that an expert’s commitment to their field often naturally leads to advocacy work. Citing prior Supreme Court cases, Justice Schabas upholds a high standard for excluding expert medical evidence, finding that a court will only deem expert evidence to be inadmissible if there is indication that the actual opinions presented are biased. 
For healthcare providers, this decision provides guidance about how professionals can both advocate publicly for issues that matter to them and still use their expertise to support legal work. If you are providing an opinion about a patient’s future ability to work for purposes of a disability support application, or the impacts that an eviction might have on a patient, you are  
providing expert evidence. You can still advocate for social and political change while using your medical expertise to support your patients and patient populations – as long as it is unbiased, impartial and objective.   
Black et al provides important guidance to healthcare providers who are trying to balance their goals in advocacy with their ability to support court and tribunal applications as an expert. Here are some key take-aways:

1. Advocates can be unbiased experts. Courts at all levels have been clear that simply being involved in work assisting or advocating on behalf of marginalized groups does not prevent one from being an expert in related matters. 
2. Stay objective and cite sources. Courts will exclude expert evidence if they have reason to believe it is biased, so it is important to provide balanced opinions that are well-supported by secondary material from reputable sources. 
3. Advocates should avoid cases with personal ties. While experts cannot be excluded for the viewpoints they have expressed about an issue generally, they should not provide opinion evidence if they have a specific connection to the case at hand. Therefore, prudent experts should avoid providing opinions in cases where they have been personally involved with the parties (as opposed to having a purely professional relationship), are themselves parties in the action, or otherwise have personal or financial interest.
4. Advocates should remain uninvolved in the specifics of the litigation. Finally, the Court may exclude an expert if they believe they have inside information about the litigation strategies of one of the parties. Therefore, experts are wise to keep an arms-length from the specific matters that they are testifying in.

Background: Black et al v City of Toronto
The Case
As part of a Charter challenge to the City of Toronto’s planned demolition of homeless encampments in public parks during the COVID-19 pandemic, NLS asked the Court to prevent the City from enforcing by-laws against homeless people which prohibited overnight sleeping and erecting tents in public parks until their validity could be properly assessed. In support of this request, two doctors provided evidence about the medical profile of homeless people, the medical risks of clearing encampments, and effects of COVID-19 on homeless people. The two testifying doctors (Dr. Tim O’Shea and Dr. Jill Wiwcharuk) were both respected academics and experts in their fields, both having worked extensively treating homeless populations. While the City did not contest that the doctors had the necessary expertise to assist the Court, it brought an application to have the doctors’ evidence excluded on the basis of the doctors’ previous advocacy activities, and a perception of bias. 
The factual history provided by the City was largely true. Motivated by their experiences providing healthcare in homeless encampments, both doctors had become fierce advocates against the clearance of encampments. Both Dr. O’Shea and Dr. Wiwcharuk were members of HAMSMaRT, a group of doctors that brings healthcare to homeless people where they live, and both had spoken out on social media, in newspapers, and in political forums about their strong opposition to the dismantling of encampments. Most importantly, Dr. Wiwcharuk was named as a party (rather than a disinterested expert witness) in an almost identical application to prevent the eviction of encampment residents in Hamilton. Her evidence was also nearly identical in both cases. In the City’s submissions, the close connection between the advocacy goals of Drs. Wiwcharuk and O’Shea and the matter before the Court made it impossible for them to testify impartially. 
We recommend that if a healthcare provider is engaged as an expert, speak with the lawyer retaining you (and your own lawyer, if you are engaged in litigation) about any potential or perceived conflicts as they arise.

The Duty of Expert Witnesses
Expert witnesses are people who, due to specialized training or experience, are allowed to give evidence of their opinions, rather than only speaking to things they have witnessed first-hand. Above all else, the expert has a duty to the Court to provide fair, objective, and non-partisan evidence. This is a serious duty and in Superior Court proposed experts must sign a declaration acknowledging their duty.
The Supreme Court of Canada (SCC) has held that where an expert understands and affirms their paramount duty to the Court, the party opposing the expert must establish that there is a realistic concern that the expert is unwilling or unable to comply with that duty.  If the opposing party cannot do so, they must convince the court that the dangers to the fact-finding process posed by the expert’s alleged lack of impartiality and independence outweigh the potential benefits of their evidence. The court stressed that in order to exclude expert evidence outright, it is not enough for an expert to appear that they may have some bias: the opposing party has to show there is actual bias in the evidence the expert will present to the court. If the Court admits the evidence, issues such as lack of objectivity will speak to the weight of the evidence.

The Result
Applying these principles to the evidence of Drs. O’Shea and Wiwcharuk, the Court in Black et al denied the City’s motion. Justice Schabas pointed out that in any kind of public interest litigation, it would be surprising if those who understood the relevant matters most intimately did not also have strong opinions. Accordingly, despite the evidence of the doctor’s advocacy work, Justice Schabas concluded that there was no basis to find that either Dr. Wiwcharuk or Dr. O’Shea were unable to fulfill their duties to the Court. Supporting this conclusion, Justice Schabas found on the evidence before him that:

1. Both doctors recognized their duty to provide fair, objective, and non-partisan opinions;
2. The actual evidence provided by the doctors was objective, based in their professional experiences, and well-supported by third-party reports from respected institutions;
3. Neither doctor had any involvement in the legal strategy or specifics of the Toronto case, regardless of their involvement in the Hamilton case; and
4. Neither doctor had a personal or financial investment in the Toronto motion.
Based on the above, Justice Schabas concluded that the important context provided by the doctor’s testimony outweighed any potential risk of bias and consequently admitted their evidence. He went on to place considerable reliance on their evidence in terms of the risks associated with clearing encampments.

Conclusion
Ultimately, Black et al stands for a common-sense conclusion: advocacy and expertise are not mutually exclusive, and in fact often go hand-in-hand. As long as professionals keep their advocacy work out of the court room, there is no reason they cannot concurrently pursue social justice and advise the Court as trusted experts. As Justice Schabas suggests in his opinion, any conclusion to the contrary would deprive both the courts and our community of the important perspectives and work provided by the most highly-skilled and influential professionals among us.

Braxton Murphy is a University of Toronto Law Student and 2020/21 extern with the Health Justice Program.

Brendan Jowett is a staff housing lawyer at NLS and counsel to the encampment residents.