Federal Court Decisions

Date: 20050304

Docket: T-588-00

Citation: 2005 FC 323

Vancouver, British Columbia, March 4, 2005

Present:         THE HONOURABLE MR. JUSTICE RUSSELL

BETWEEN:

                                        EARLY RECOVERED RESOURCES INC.

                                                                                                                                              Plaintiff

                                                                           and

                                               HER MAJESTY IN RIGHT OF THE

                                            PROVINCE OF BRITISH COLUMBIA,

                                           JIM DOYLE, MINISTER OF FORESTS,

                                    COAST FOREST PRODUCTS ASSOCIATION,

                        and INDEPENDENT TIMBER MARKETING ASSOCIATION

                                                                                                                                      Defendants

                                           REASONS FOR ORDER AND ORDER

(a)                 The Plaintiff has asked that Mr. Maser's expert opinion evidence be restricted to the last two questions of the four he raises in his affidavit report. These written reasons and order were delivered orally in substantially similar form from the Bench on March 3, 2005.

(b)                In reaching my conclusions on this issue, I believe the relevant authorities make a clear distinction between admissibility and weight in the context of expert evidence.

(c)                 Before expert evidence can be given any weight, it must first be found admissible in accordance with the general principles enunciated by the Supreme Court of Canada in R. v. Mohan, [1994] 2 S.C.R. 9, 29 C.R. (4^th) 243. In other words, the expert evidence must be:

(a)         relevant to an issue in the case;

(b)         necessary in assisting the trier of fact;

(c)         not subject to an exclusionary rule; and

(d)         given by a properly qualified expert.

(d)                In the first question of Mr. Maser's report, he states clearly what he seeks to answer and offer to the Court as expert assistance:

What was the ecological state of estuaries in the Pacific Northwest, including the Fraser River, prior to the arrival of Europeans?

This question has both an ecological and a historical dimension.

(e)                 In order to establish the historical facts, Mr. Maser relies upon several secondary sources that refer to Captain Vancouver's narrative and Lieutenant Peter Puget's journal. He also relies upon historical data that refers to the Pacific Northwest in general that derives from certain U.S. surveys. These sources report great amounts of large drift wood in estuaries and on the beaches at the mouths of estuaries.

(f)                  Based upon these sources, Mr. Maser comes to certain conclusions about the entire coast of the Pacific Northwest, including the Fraser River.

(g)                 The difficulty for the Court is that Mr. Maser does little more than refer to a limited number of sources (most of them well-known) that he assumes provide an accurate picture of the Fraser River (the area relevant to this dispute) prior to the arrival of the Europeans, and he is not in a position to render an opinion upon the context of those sources, or whether they are complete, accurate, or reliable.

(h)                 Moreover, as regards the sources he uses, he is in no better position than the Court to assess the historical implications of what they reveal. He just accepts the accounts as self-evident and draws general conclusions from them.

(i)                   Thus it seems to the Court that, on the first question he seeks to address, he does not satisfy the Mohan test because he has not been qualified as having the appropriate level of knowledge to assess the historical conclusions he draws. He is really in no better position than the Court to draw conclusions from the sources he uses and what they tell us about the Fraser River prior to the arrival of Europeans.

(j)                  The second question that Mr. Maser seeks to render an expert opinion on reads as follows:

What did Europeans do to rivers and estuaries, including the Fraser River and its estuary, during the early years of settlement?

(k)                Mr Maser approaches this question in much the same way as he approaches the first question. Using historical accounts and surveys of other rivers and estuaries and the Pacific Northwest coast in general, he draws general historical conclusions which he asserts are applicable to the Fraser River.

(l)                   But, once again, the conclusions he reaches concerning what Europeans did to the Fraser River do not come from someone who has been qualified before the Court to assess the historical records he uses. He is in no better position than the Court to draw conclusions and form opinions from the sources he cites.

(m)               Indeed, in answering the first two questions in his report, Mr. Maser does little more than allow the sources he has chosen (and which the Court has no way of assessing or placing in context) to set the picture and speak for themselves.

(n)                 I do not believe that this satisfies the basic Mohan test for the admissibility of expert testimony. In relation to the first two questions in the report, Mr. Maser does not really offer assistance to the Court in the way that an expert should. He asks the Court to accept a particular historical perspective on the state of the Fraser River, but he does not say how he is qualified to present such a perspective. So for the Court to accept the historical picture that Mr. Maser seeks to paint would be tantamount to accepting expert confirmation of historical facts from someone who has not been qualified before the Court as capable of establishing those historical facts in an acceptably authoritative way.

(o)                Consequently, it is the view of the Court that it cannot accept as expert testimony the conclusions and opinions expressed under questions 1 and 2 of Mr. Maser's report.

ORDER

The conclusions and opinions expressed under the first two questions of Mr. Maser's report are not admissible as expert evidence in this dispute.

(Sgd.) "James Russell"

        Judge

                                                              FEDERAL COURT

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                      T-588-00

STYLE OF CAUSE:                      Early Recovered Resources Inc. v. Her Majesty in Right of the Province of British Columbia et al.

PLACE OF HEARING:                  Vancouver, British Columbia

DATE OF HEARING:                    March 3, 2005

REASONS FOR ORDER AND ORDER:                   RUSSELL, J.     

DATED:                                                                       March 4, 2005

APPEARANCES:

SOLICITORS OF RECORD: