Finessing a Medical Expert’s Qualifications: From Professional Communities’ Boundaries to Personal Character

Authors

Patrick Garon-Sayegh, Université de Montréal, Faculty of Law

Document Type

Article

Abstract

This article examines the kinds of arguments that can be made in debates regarding whether or not an expert is properly qualified to critique the work or opinions of another expert. Since these debates routinely occur in both legal and political arenas, a more fine-tuned sense of their argumentative dynamics can be fruitful for reasoning through them. This article is built around the analysis of a decision which concerned the admissibility of a physician’s testimony on the medical standard of care in a malpractice case. A detailed parsing of the arguments in that decision lays the groundwork for a theoretical discussion in which broader themes relating to experts’ qualifications are drawn out. The discussion focuses on two elements present in the decision, which can serve to buttress an expert’s claim to being properly qualified: community belonging and personal character.

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This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Citation Information

Garon-Sayegh, Patrick. "Finessing a Medical Expert’s Qualifications: From Professional Communities’ Boundaries to Personal Character." Osgoode Hall Law Journal 62.1 (2025) : 9-66.
DOI: https://doi.org/10.60082/2817-5069.4096
https://digitalcommons.osgoode.yorku.ca/ohlj/vol62/iss1/2

References

1. Assistant Professor, Faculty of Law, Université de Montréal. Thanks to Trudo Lemmens, Jean-Christophe Bédard-Rubin, and all anonymous reviewers for their thoughtful comments on previous versions of this text. All errors or omissions are mine.

2. See generally Victor Karl Magnússon, “Experts, Democracy, and Covid-19” (2022) 3 Philosophy of Medicine 1, DOI: https://doi.org/10.5195/pom.2022.84; Maya J Goldenberg, “Public Trust in Science” (2023) 48 Interdisciplinary Science Reviews 366, DOI: https://doi.org/10.1080/03080188.2022.2152243.

3. Cheesman et al v Credit Valley Hospital et al, 2019 ONSC 1907 [Cheesman].

4. R v Mohan, 1994 CanLII 80 (SCC) [Mohan].

5. White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23 [WBLI]. See also R v Bingley, 2017 SCC 12 at para 13ff [Bingley].

6. See generally Lisa A Silver, “Back to Burgess: The Impact of the White Burgess Expert Evidence Regime in Alberta Decisions” (2019) 57 Alta L Rev 1, DOI: https://doi.org/10.29173/alr2562 (regarding expert evidence admissibility law’s recent evolution). See also David M Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed (Irwin Law, 2020) at 251-52; Eric V Gottardi et al, Qualifying and Challenging Expert Evidence (Emond, 2022) at 6-11 (regarding the broad arc of the evolution from Mohan to WBLI). For a recent application of the Mohan–WBLI test in a medical malpractice case, see e.g. Thompson v Handler, 2023 ONSC 5042 at paras 55-66.

7. For example, the rules that prohibit character evidence, oath helping, and hearsay. See generally Gottardi et al, supra note 6 at 51-53.

8. See WBLI, supra note 5 at paras 52-54; R v Abbey, 2017 ONCA 640 at para 48 [Abbey 2017].

9. See WBLI, supra note 5 at para 23; Abbey 2017, supra note 8 at para 48; Bingley, supra note 5 at paras 41-43.

10. See Bingley, supra note 5 at paras 14-15.

11. WBLI, supra note 5 at para 24. See also Bingley, supra note 5 at para 16.

12. Bingley, supra note 5 at para 16.

13. Bruff-Murphy v Gunawardena, 2017 ONCA 502 at para 37.

14. Bingley, supra note 5 at para 17; R v Sekhon, 2014 SCC 15 at para 46 [Sekhon].

15. Sekhon, supra note 14 at para 46.

16. Ibid.

17. Ibid at para 47.

18. WBLI, supra note 5 at para 19.

19. This is especially apparent in the Court of Appeal for Ontario’s formulation of the test in Abbey 2017. See Abbey 2017, supra note 8 at para 48. See also Sidney N Lederman, Michelle K Fuerst & Hamish C Stewart, The Law of Evidence in Canada, 6th ed (LexisNexis, 2022) at paras 12.54-12.55.

20. WBLI, supra note 5 at para 54.

21. See Lederman, Fuerst & Stewart, supra note 19 at para 12.52.

22. WBLI, supra note 5 at paras 23-24. Logical relevance is a matter of assessing whether or not the evidence has “a tendency as a matter of human experience and logic to make the existence or non-existence of a fact in issue more or less likely than it would be without that evidence”; it “sets a low threshold for admissibility and reflects the inclusionary bias of our evidentiary rules.” See R v Abbey, 2009 ONCA 624 at para 82, leave to appeal to SCC refused, 33656 (8 July 2010) [Abbey 2009]. Legal relevance, on the other hand, requires that evidence be “sufficiently probative to justify its admission despite the prejudice that may flow from its admission” (ibid).

23. WBLI, supra note 5 at para 49.

24. See Abbey 2017, supra note 8 at para 55.

25. See Lederman, Fuerst & Stewart, supra note 19 at paras 12.65, 12.154, 12.156, 12.160.

26. Ibid at para 12.164.

27. David M Paciocco, “Context, Culture and the Law of Expert Evidence” (2001) 24 Adv Q 42 at 43. See also Patrick Garon-Sayegh, “Expert Evidence Admissibility: From Rocky Highlands to Swampy Lowlands, via the Medical Standard of Care” (2022) 60 Alta L Rev 235 at 244-48, DOI: https://doi.org/10.29173/alr2716.

28. Paciocco, supra note 27 at 48-49, 51-52.

29. Ter Neuzen v Korn, 1995 CanLII 72 at paras 33-34 (SCC) [Ter Neuzen]. The Court of Appeal for Ontario noted that “[e]very medical practitioner…is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing.” See Sylvester v Crits et al, 1956 CanLII 34 at 13 (ONCA), aff’d 1956 CanLII 29 (SCC).

30. See Gerald B Robertson & Ellen I Picard, Legal Liability of Doctors and Hospitals in Canada, 5th ed (Thomson Reuters, 2017) at 502. Robertson and Picard note that “[n]ot only is expert evidence important in proving the plaintiff’s claim, in most cases it is essential” (ibid).

31. Ibid.

32. For a more detailed discussion of this point, see Garon-Sayegh, supra note 27 at 259-61.

33. Abbey 2009, supra note 22 at para 82.

34. See e.g. Lederman, Fuerst & Stewart, supra note 19 at 12.50. By way of example:

It is unlikely that a trial judge would conduct an extensive voir dire to determine whether the standard of care of a cardiac surgeon performing open heart surgery is a matter beyond the experience of the trier of fact or that an opinion of a qualified cardiac surgeon would assist the trier of fact to determine whether the operating surgeon breached the standard of care (ibid).

35. See e.g. Abbey 2009, supra note 22 at paras 112-14.

36. Ibid at para 114.

37. Parliament et al v Conley and Park, 2019 ONSC 3044 at para 21.

38. See Robertson & Picard, supra note 30 at 494. “Normally only doctors from the same specialty as the defendant will be qualified to give expert evidence as to the applicable standard of care” (ibid). Additionally, “[e]xpert witnesses must be qualified to opine on the appropriate standard of care expected of a physician through the eyes of a physician with the same background and training.” See Stepita v Dibble, 2020 ONSC 3041 at para 20 [Stepita]. Moreover, “[m]edical specialists are not properly situated to opine on the standard of care of specialists in other areas.” See Bafaro v Dowd, 2008 CanLII 45000 at para 33 (ONSC), aff’d 2010 ONCA 188.

39. See Ter Neuzen, supra note 29 at paras 33-42. See also Robertson & Picard, supra note 30 at 286-87; Jean-Louis Baudouin, Patrice Deslauriers & Benoît Moore, La responsabilité civile, vol 2, 9th ed (Yvon Blais, 2020) at 53-54. The standard of care must take into account a physician–defendant’s degree of specialization (ibid). See also Suzanne Philips-Nootens & Robert P Kouri, Éléments de responsabilité civile médicale: Le droit dans le quotidien de la médecine, 5th ed (Yvon Blais, 2021) at 58; Dieter Giesen, International Medical Malpractice Law: A Comparative Law Study of Civil Liability Arising From Medical Care (JCB Mohr (Paul Siebeck), 1988) at 161-62, DOI: https://doi.org/10.1017/S0731126500025518.

40. Robertson & Picard, supra note 30 at 454.

41. Ibid at 451.

42. See Timlick v Heywood, 2017 MBCA 7 at paras 46-47; Robinson v The Sisters of St Joseph of the Diocese of Peterborough, 1999 CanLII 2199 at para 1 (ONCA); Robertson & Picard, supra note 30 at 494-96.

43. On the purposive approach, see generally Paciocco, Paciocco & Stuesser, supra note 6 at 11-13. On flexibility and discretion exercised in context, see generally Lederman, Fuerst & Stewart, supra note 19 at paras 1.126-1.134.

44. On the distinction between rules and rules of thumb, see Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (Duke University Press, 1989) at 316-17, DOI: https://doi.org/10.2307/j.ctv11317d7.17. A rule of thumb is a “good thing to try if you want to succeed” in a given task but “cannot be formalized, because the conditions of its application vary with the contextual circumstances of an ongoing practice” (ibid).

45. It has been noted that “[j]ust as a general practitioner will normally not be expected to have the knowledge and skill of a specialist, the same is true as between members of different specialties.” See Robertson & Picard, supra note 30 at 290.

46. Ibid at 495-96, nn 11-15 and accompanying text.

47. Ibid.

48. Cheesman, supra note 3 at para 27.

49. See e.g. Barber v Humber River Regional Hospital, 2016 ONCA 897 at paras 89-93.

50. Cheesman, supra note 3.

51. Ibid at para 8. It should be noted that, after a seventy-day jury trial, the jury found some of the defendants responsible for the plaintiff’s damages. See Cheesman et al v Credit Valley Hospital et al, 2020 ONSC 1729. The outcome of the case, however, is of no interest to the analysis that follows because I am interested in the court’s reasoning in the context of the pre-trial motion itself. Judges routinely make admissibility decisions in the lead-up to their final decision. See generally Glenn R Anderson, Expert Evidence, 3rd ed (LexisNexis Canada, 2014) at paras 12.6ff, 18.50, 19.46, 20.56.

52. Of course, I cannot possibly address all of the methodological and epistemological justifications for case studies within the space accorded to me here. Beyond the clarifications provided below, readers are invited to consult the significant amount of general social science scholarship that provides a sound basis for single-case studies and dismantles common misconceptions related to case study methods (many of these misconceptions being bound up with the suspicious, skeptical line of argument described above in the article). See generally Bent Flyvbjerg, Making Social Science Matter: Why Social Inquiry Fails and How It Can Succeed Again, translated by Steven Sampson (Cambridge University Press, 2001) at 9-24, 38-49, 66-87, DOI: https://doi.org/10.1017/CBO9780511810503; Bent Flyvbjerg, “Five Misunderstandings About Case-Study Research” (2006) 12 Qualitative Inquiry 219, DOI: https://doi.org/10.1177/1077800405284363; Lee P Ruddin, “You Can Generalize Stupid! Social Scientists, Bent Flyvbjerg, and Case Study Methodology” (2006) 12 Qualitative Inquiry 797, DOI: https://doi.org/10.1177/1077800406288622; Robert K Yin, “Case Studies” in James D Wright, ed, International Encyclopedia of the Social & Behavioral Sciences, 2nd ed (Elsevier, 2015) 194, DOI: https://doi.org/10.1016/B978-0-08-097086-8.10507-0; Charles C Ragin, “Case-Oriented Research” in ibid, 187, DOI: https://doi.org/10.1016/B978-0-08-097086-8.44004-3.

53. Note for instance that the bulk of Canadian scholarship and key jurisprudential milestones on expert evidence admissibility focus on the criminal law context. See generally Garon-Sayegh, supra note 27 at 255-59.

54. I use the label “Science Studies” for two reasons. First, I wish to avoid some of the disciplinary connotations, controversies, and programmatic projects that accompany more commonly used labels, most notably “Science and Technology Studies” (STS) and “Sociology of Scientific Knowledge” (SSK). See generally Martyn Pickersgill & Sheila Jasanoff, “ST(&)S: Martyn Pickersgill Talks with Sheila Jasanoff” (2018) 4 Engaging Science, Tech, and Society 320, DOI: https://doi.org/10.17351/ests2018.226; Sheila Jasanoff, “A Field of Its Own: The Emergence of Science and Technology Studies” in Robert Frodeman, ed, The Oxford Handbook of Interdisciplinarity, 2nd ed (Oxford University Press, 2017) 173, DOI: https://doi.org/10.1093/oxfordhb/9780198733522.013.15 [Jasanoff, “A Field of Its Own”]. Second, I use the label Science Studies because my analysis also draws on scholarship (mostly philosophical) that would not typically be considered as falling under STS or SSK, but which is nonetheless either directly concerned with scientific-medical-expert knowledge and practices or very relevant to the analysis of such knowledge and practices. This inclusive approach is vindicated by the fact that, even within scholarship that explicitly positions itself as being STS or SSK, Science Studies scholarship is typically characterized by a profound degree of interdisciplinarity and scientific/academic disciplines are themselves a topic of inquiry within Science Studies (ibid).

55. Numerous sources provide overviews of the Science Studies literature. For a number of succinct overviews relevant to this article (and written by prominent Science Studies scholars), see Wright, supra note 52. Also, see generally Steven Shapin, “Truth and Credibility in Science” in ibid, 673, DOI: https://doi.org/10.1016/B978-0-08-097086-8.85039-4; Brian Wynne & Michael Lynch, “Science and Technology Studies: Experts and Expertise” in ibid, 206, DOI: https://doi.org/10.1016/B978-0-08-097086-8.85023-0; Sheila Jasanoff, “Science and Law” in ibid, 156, DOI: https://doi.org/10.1016/B978-0-08-097086-8.86107-3; Harald Rohracher, “Science and Technology Studies, History of” in ibid, 200, DOI: https://doi.org/10.1016/B978-0-08-097086-8.03064-6; Thomas F Gieryn & Kathleen C Oberlin, “Science, Sociology of” in ibid, 261, DOI: https://doi.org/10.1016/B978-0-08-097086-8.85028-X; HM Collins, “Scientific Knowledge, Sociology of” in ibid, 308, DOI: https://doi.org/10.1016/B978-0-08-097086-8.85029-1. For a more encompassing overview, see generally Sergio Sismondo, An Introduction to Science and Technology Studies, 2nd ed (Wiley-Blackwell, 2010).

56. I refer readers to the numerous articles and books that are cited below, written by scholars such as Mariana Valverde, Annelise Riles, Lewis H LaRue, Gary Edmond, and David S Caudill.

57. See John Law, “STS as Method” in Ulrike Felt et al, eds, The Handbook of Science and Technology Studies, 4th ed (MIT Press, 2017) 31 at 32. “In one way or another STS almost always works through case studies…[and] if you want to understand STS—and STS theory—you need to read it through its cases” (ibid) [emphasis in original].

58. Annelise Riles, Collateral Knowledge: Legal Reasoning in the Global Financial Markets (University of Chicago Press, 2011) at 11, DOI: https://doi.org/10.7208/chicago/9780226719344.001.0001 [Riles, Collateral]. See also Annelise Riles, “A New Agenda for the Cultural Study of Law: Taking on the Technicalities” (2005) 53 Buff L Rev 973 at 985-86, 1018, DOI: https://doi.org/10.2139/ssrn.558605.

59. Riles, Collateral, supra note 58 at 13. Or, as said by the philosopher of science Ian Hacking, in a chapter discussing the particularities of dolomite, “[o]ne way to do philosophy is to take a careful look at some corner of the world [by taking an example that can]…illustrate, and serve as a parable for, a general point of great interest.” See Ian Hacking, The Social Construction of What? (Harvard University Press, 1999) at 186, DOI: https://doi.org/10.2307/j.ctv1bzfp1z.10.

60. Riles, Collateral, supra note 58 at 13.

61. Ludwig Wittgenstein, Philosophical Investigations, 4th ed by PMS Hacker & Joachim Schulte, translated by GEM Anscombe, PMS Hacker & Joachim Schulte (Wiley-Blackwell, 2009) at para 129. For a discussion of Wittgenstein’s work in relation to Science Studies, see generally Michael Lynch, “Extending Wittgenstein: The Pivotal Move from Epistemology to the Sociology of Science” in Andrew Pickering, ed, Science as Practice and Culture (University of Chicago Press, 1992) 215.

62. Riles, Collateral, supra note 58 at 13. The “something” of general interest taken up in this article, and regarding which insights are sought, is encapsulated in the questions posed at the beginning of the article, i.e.: How do we evaluate the work performed by experts to judge whether they acted appropriately? How do we evaluate whether this person is appropriately qualified to speak to this controversy and contradict or criticize this expert? And more specifically, how are these general questions inflected in the particular context of expert evidence on the medical standard of care in malpractice cases?

63. The mobilization of argumentative resources akin to those discussed in this article, for the purpose of supporting or undermining credibility (or cognitive authority), is well documented and discussed. For a case in which an expert witness’s leadership in one domain of expertise was mobilized to redefine the relevant domain and exclude the witness from it, see e.g. Alberto Cambrosio, Peter Keating & Michael Mackenzie, “Scientific Practice in the Courtroom: The Construction of Sociotechnical Identities in a Biotechnology Patent Dispute” (1990) 37 Soc Problems 275 at 280, DOI: https://doi.org/10.2307/800743. For another study expanding on the findings of this last study, see David S Caudill, “‘Sociotechnical’ Arguments in Scientific Discourse: Expert Depositions in Tobacco Litigation” (2005) 24 Rev Litig 1. For other works examining boundary-work strategies around expert witnesses’ qualifications, see Michael Lynch, “Circumscribing Expertise: Membership Categories in Courtroom Testimony” in Sheila Jasanoff, ed, States of Knowledge: The Co-production of Science and Social Order (Routledge, 2004) 161, DOI: https://doi.org/10.4324/9780203413845-9 [Lynch, “Circumscribing Expertise”]; Michael Lynch, “Expertise in Action: Presenting and Attacking Expert Evidence in DNA Fingerprinting Cases” (2007) 52 Villanova L Rev 925 [Lynch, “Expertise in Action”]. For an even broader perspective, sociologists of science Michael Mulkay and G Nigel Gilbert have produced detailed discourse analyses showing how scientists deploy various “repertoires” of “interpretative resources” (this last term tracks my use of the term “argumentative resources”) to justify their judgments vis-à-vis scientific knowledge claims. See G Nigel Gilbert & Michael Mulkay, Opening Pandora’s Box: A Sociological Analysis of Scientists’ Discourse (Cambridge University Press, 1984), DOI: http://dx.doi.org/10.2307/2070471; Michael Mulkay & G Nigel Gilbert, “Accounting for Error: How Scientists Construct Their Social World When They Account for Correct and Incorrect Belief” (1982) 16 Sociology 165, DOI: https://doi.org/10.1177/0038038582016002001.

64. Paciocco, supra note 27 at 62-63. This echoes the Science Studies-informed view that “[d]efinitions of expertise, like the development, mobilization, appropriation and representation of expertise, are always situated, always purposive.” See Gary Edmond & David Mercer, “Experts and Expertise in Legal and Regulatory Settings” in Gary Edmond, ed, Expertise in Regulation and Law (Routledge, 2004) 1 at 2, DOI: http://dx.doi.org/10.4324/9781315255668-1.

65. “Experts must not only be qualified generally but must also be qualified to express the specific opinion proffered.” See Stepita, supra note 38 at para 19, citing R v Orr, 2015 BCCA 88 at para 67. See also Gottardi et al, supra note 6 at 69.

66. See generally David S Caudill & Lewis H LaRue, No Magic Wand: The Idealization of Science in Law (Rowman & Littlefield, 2006). “[J]ust as idealizations of science are bolstered by downplaying or demonizing (as unscientific) the social aspects of science, idealizations of particular features of law often rely on demonizations of other aspects….Failure to recognize the realistic limits of law, as well as science, will result in impractical reform proposals” (ibid at 64). Also, see generally Lewis H LaRue & David S Caudill, “A Non-Romantic View of Expert Testimony” (2004) 35 Seton Hall L Rev 1 at 28, 43; David S Caudill & Lewis H LaRue, “Why Judges Applying the Daubert Trilogy Need to Know about the Social, Institutional, and Rhetorical—and Not Just the Methodological—Aspects of Science” (2003) 45 Boston College L Rev 1, DOI: https://doi.org/10.2139/ssrn.462740. “[T]rial judges who fail to understand and appreciate the…rhetorical aspects of science tend to (1) reject reliable, albeit pragmatic, science, (2) welcome unreliable, but authoritative, science, and (3) thereby create a body of legal science that is out of sync with mainstream science” (ibid at 6) [emphasis in original].

67. For a relatively recent example of another detailed analysis of a single case, see e.g. Emma Cunliffe & Gary Edmond, “Justice Without Science? Judging the Reliability of Forensic Science in Canada” (2021) 99 Can Bar Rev 65.

68. Note that it is important to distinguish between the case and the case study. The case is but an episode or moment in time which may or may not matter much in and of itself. The case study is distinct from the case in that it engages in substantive analysis. It is the substantive analysis that matters when doing a case study, and it is this analysis (along with the propositions/insights it generates) that can be transferred or applied to other cases qua episodes or moments (mutatis mutandis, of course, while always being mindful of context and relevant similarities and differences of particularities). See Yin, “Case Studies” in Wright, supra note 52. For a relevant discussion of relationships of similarity and difference built around a case study, see generally Brian Wynne, “Establishing the Rules of Laws: Constructing Expert Authority” in Roger Smith & Brian Wynne, eds, Expert Evidence: Interpreting Science in the Law (Routledge, 1989) at 23 (discussing how the trial process troubles and deconstructs taken-for-granted categories).

69. Cheesman, supra note 3 at para 4.

70. Ibid at paras 6, 31-34, 37, 106.

71. Note that a number of other physicians are defendants in the case, but only these four specialists are discussed in the admissibility decision under review. Ibid at para 5.

72. Ibid at paras 6, 31-38, 48, 63, 72, 79, 84-86, 106.

73. Ibid at para 6.

74. Ibid at paras 68, 74.

75. Ibid at para 14.

76. Ibid at paras 15-16, 18, 20.

77. Ibid at para 18.

78. Ibid at paras 15-20.

79. Ibid at paras 22, 30.

80. Ibid at paras 28-31.

81. Ibid at para 34.

82. Ibid at para 35.

83. Ibid at para 38.

84. Ibid at paras 84-85.

85. Ibid at para 36 [emphasis added].

86. Ibid at paras 35, 39.

87. See Robertson & Picard, supra note 30 at 288. The comparison of the defendant–physician to the reasonable physician, i.e., the standard, “is made with reference to the particular circumstances at the material time” (ibid).

88. See Cheesman, supra note 3 at para 39.

89. Ibid at paras 39-40.

90. Ibid at para 40. Note that the court said this even though it agreed that there was “no doubt that Dr. Gill had more limited experience at the time” (ibid).

91. Ibid at para 41.

92. Ibid at paras 42-45.

93. Ibid at para 42.

94. Ibid at para 43.

95. Ibid at para 45.

96. Ibid at para 44.

97. Ibid at paras 14, 50-56.

98. Ibid at paras 53-56.

99. Abbey 2009, supra note 22 at para 63. See also Anderson, supra note 51 at paras 13.10-13.12.

100. This happened in Cheesman: Dr. Gill opined on causation in his written reports even though he was not asked to provide an opinion on causation. See Cheesman, supra note 3 at paras 50-52, 55.

101. Ibid at paras 66-73.

102. Ibid at paras 74-92.

103. Ibid at paras 93-94.

104. Ibid at paras 95-102.

105. Ibid at paras 103-109.

106. As opined by the court, the “‘piling on’ argument is a refinement of their [the defendants’] duplication argument.” Ibid at para 74.

107. Such concerns are in line with section 1.04 of the Rules of Civil Procedure. See RRO 1990, Reg 194. Section 1.04 states that the “rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits” [emphasis added].

108. See Cheesman, supra note 3 at paras 66-67.

109. RSO 1990, c E.23. The Act states that “[w]here it is intended by a party to examine as witnesses persons entitled, according to the law or practice, to give opinion evidence, not more than three of such witnesses may be called upon either side without the leave of the judge or other person presiding” (ibid, s 12). Regarding the three cases cited by the defendants, in Suwary v Women’s College Hospital the plaintiff had already called upon two obstetricians to provide evidence, and then sought to call two additional obstetricians. See 2009 CanLII 5156 at para 8 (ONSC). The defendant objected, invoking evidence duplication among other arguments (ibid). The trial judge found that the additional obstetrics experts would both be testifying to the applicable standard of care, and the overlap in their evidence was “so substantial as to be overwhelming” (ibid at para 33). The judge also found that the plaintiffs had not demonstrated that the additional two obstetricians were “better positioned, by education training or experience, to provide opinion evidence on liability and causation issues” than the first two obstetricians that had been called (ibid at para 39). Finally, the judge found that the additional evidence was not necessary for the plaintiffs “to fairly and fully present their case” and therefore did not allow the additional two experts to provide evidence (ibid at para 46). The other two decisions cited by the defendants in Cheesman—Kulyk v Cramp, 2014 ONSC 5354 and Gorman v Powell, 2006 CanLII 35624 (ONSC)—are uninteresting for present purposes because they stem from motor vehicle personal injury actions. See Cheesman, supra note 3 at para 66. See also Kulyk v Cramp, 2013 ONSC 1539 at para 4; Gorman v Powell, 2006 CanLII 42801 at para 1 (ONSC).

110. Cheesman, supra note 3 at para 67.

111. Ibid at para 70, citing Hayes v Symington, 2015 ONSC 7362 [Hayes]. In Hayes, two emergency medicine specialists were permitted to testify because they had complementary perspectives, one academic and the other practical.

112. Ibid at paras 71, 82 [emphasis in original].

113. Ibid at para 72.

114. This also has implications for professionals’ legal liability in multidisciplinary care settings. Fleshing out these implications is beyond the scope of this article. But note that these implications may be significant in light of the court’s statement that the “standard of care expected of a member of a multidisciplinary team is not necessarily restricted to matters unique to that physician’s area of specialization but may also extend to the manner in which the physician interacts with other members of the team.” Ibid at para 84.

115. Ibid at para 73.

116. Ibid.

117. Ibid.

118. Ibid at paras 93-94.

119. I say “seems” because customarily, judgments do not provide an exhaustive account of the parties’ arguments. Rather, they provide the reader with the “gist” of the parties’ arguments. This decision is no exception. Without transcripts of a given hearing, and copies of written arguments (where applicable), we must extrapolate what the parties’ arguments were, based on the—sometimes cursory—account of the arguments provided in the decision.

120. See Cheesman, supra note 3 at para 94.

121. Ibid at paras 95-102.

122. Ibid at para 97.

123. Ibid at paras 103-109

124. Ibid at para 106.

125. Ibid at para 108.

126. Ibid at para 107.

127. Ibid at paras 94, 101, 109.

128. See generally Paciocco, supra note 27 at 50-51; Robertson & Picard, supra note 30 at 510ff.

129. See Thomas F Gieryn, Cultural Boundaries of Science: Credibility on the Line (University of Chicago Press, 1999) at 4-5, DOI: https://doi.org/10.7208/chicago/9780226824420.001.0001 [Gieryn, Cultural Boundaries]; Thomas F Gieryn, “Boundary-Work and the Demarcation of Science from Non-Science: Strains and Interests in Professional Ideologies of Scientists” (1983) 48 Am Soc Rev 781, DOI: https://doi.org/10.2307/2095325. See also Andrew Abbott, “Things of Boundaries” (1995) 62 Soc Research 857 at 857, 860 (regarding the adoption of a “boundaries-first” approach to entities such as professional communities). Abbott argues that “we should start with boundaries and investigate how people create entities by linking those boundaries into units”; in other words, “[b]oundaries come first, then entities” (ibid).

130. See Thomas F Gieryn, “Boundaries of Science” in Sheila Jasanoff et al, eds, Handbook of Science and Technology Studies (Sage, 1995) 393 at 405, DOI: https://doi.org/10.4135/9781412990127.n18 [Gieryn, “Boundaries of Science”]. Note the notion that cognitive authority obtains within a bounded domain has, as its corollary, the notion that it is possible to overstep a domain’s boundaries. Such overstepping is discussed in the philosophical literature under the term “epistemic trespassing.” See generally Nathan Ballantyne, “Epistemic Trespassing” (2019) 128 Mind 367, DOI: https://doi.org/10.1093/mind/fzx042; Nathan Ballantyne, Knowing Our Limits (Oxford University Press, 2019) at 195-219, DOI: https://doi.org/10.1093/oso/9780190847289.003.0008; Jelena Pavličić et al, “Friend or Foe? Rethinking Epistemic Trespassing” (2023) 38 Soc Epistemology 249, DOI: https://doi.org/10.1080/02691728.2023.2286255.

131. Gieryn, Cultural Boundaries, supra note 129 at 1.

132. Paul Starr, The Social Transformation of American Medicine (Basic Books, 1982) at 13.

133. “Theoretical authorities are experts whose…word is a reason for holding certain beliefs and discarding others.” See Joseph Raz, “The Problem of Authority: Revisiting the Service Conception” (2006) 90 Minn L Rev 1003 at 1032. Theoretical authority is “authority concerning what is the case.” See Scott J Shapiro, “Authority” in Jules L Coleman, Kenneth E Himma & Scott J Shapiro, eds, The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford University Press, 2004) 382 at 399, DOI: https://doi.org/10.1093/oxfordhb/9780199270972.013.0010 [emphasis in original]. “[T]heoretical authorities give people reasons for belief.” See Tom Christiano, “Authority” in Edward N Zalta, ed, The Stanford Encyclopedia of Philosophy (Stanford University, 2020), online: plato.stanford.edu/archives/sum2020/entries/authority [perma.cc/9KL8-ULLN].

134. Gieryn, Cultural Boundaries, supra note 129 at 1.

135. Starr, supra note 132 at 13.

136. Moreover, as seen in Part I(A)(1), the idea of drawing boundaries around expert witnesses’ authority is not foreign to the law: At least since Abbey 2009, courts have insisted on the importance of specifying the nature and scope—or boundaries—of proposed expert evidence. See Sekhon, supra note 14 at para 46. See also Bingley, supra note 5 at para 17; Abbey 2009, supra note 22 at para 62; The Ministry of the Attorney General for Ontario, Inquiry into Pediatric Forensic Pathology in Ontario, by the Honourable Stephen T Goudge, vol 3 (OMAG, 2008) at 471. “It is crucial that judges precisely define the nature and the limits of…expertise at the beginning of each trial” (ibid). But the law tends to emphasize the problematic downstream consequences of non-adherence to boundaries or porous boundaries. The concept of boundary-work, on the other hand, focuses our attention on the role of cognitive authority and the work that happens upstream, i.e., the rhetorical strategies deployed by parties to secure as much of it as possible and the work that trial judges have to invest to articulate fixed boundaries. Focusing on boundary-work is important because the existence of boundaries, even around concepts, is often taken for granted. Indeed, boundaries are “central to the common-sense picture of the world”: This picture (which makes it easy to forget all the work needed to establish boundaries around concepts) can lead us to overlook the amount of work invested in establishing, maintaining, and defending boundaries, thereby obscuring how “deeply problematic” they are. See Achille Varzi, “Boundary” in Edward N Zalta & Uri Nodelman, eds, The Stanford Encyclopedia of Philosophy (Stanford University, 2024), online: plato.stanford.edu/archives/sum2024/entries/boundary [perma.cc/5BBF-JSBQ].

137. See e.g. Mohan, supra note 4 at 21, 24. Evidence that is “[d]ressed up in scientific language [and presented by] a witness of impressive antecedents…is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves” (ibid at 21). We should guard against evidence “cloaked under the mystique of science” (ibid). Expert witnesses should “not be permitted to usurp the functions of the trier of fact” (ibid at 24). See e.g. R v J-LJ, 2000 SCC 51 at para 25.

138. Here I follow Raz’s definition of authority as “an ability to perform certain kinds of action” and Walton’s distinction between cognitive and administrative authority. See Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford University Press, 1979) at 7, DOI: https://doi.org/10.1093/acprof:oso/9780198253457.001.0001; Douglas Walton, Appeal to Expert Opinion: Arguments From Authority (Pennsylvania State University Press, 1997) at 76-78.

139. Starr, supra note 132 at 12.

140. This is reflected in some medical-professional organizations’ efforts to regulate their members’ activities as expert witnesses. See Aaron S Kesselheim & David M Studdert, “Professional Oversight of Physician Expert Witnesses: An Analysis of Complaints to the Professional Conduct Committee of the American Association of Neurological Surgeons, 1992–2006” (2009) 249 Annals of Surgery 168, DOI: https://doi.org/10.1097/SLA.0b013e31818a14ef; Aaron Kesselheim & David M Studdert, “Role of Professional Organizations in Regulating Physician Expert Witness Testimony” (2007) 298 JAMA 2907, DOI: https://doi.org/10.1001/jama.298.24.2907. See also Code of Ethics of Physicians, CQLR c M-9, r 17, s 67; American Medical Association, Code of Medical Ethics, opinion 9.7.1, online (pdf): code-medical-ethics.ama-assn.org/sites/amacoedb/files/2022-08/9.7.1.pdf [perma.cc/B59R-34W2].

141. See generally Debra K Katzman, Jean-Yves Frappier & Eudice Goldberg, “Adolescent Medicine: A New Paediatric Subspecialty in Canada” (2008) 13 Paediatrics & Child Health 12, DOI: https://doi.org/10.1093/pch/13.1.12.

142. People engage in boundary-work when they have an interest to do so, and when different people are making incompatible claims and it is unclear how to allocate cognitive authority among the claim-makers. See Gieryn, “Boundaries of Science,” supra note 130 at 405-06; Gieryn, Cultural Boundaries, supra note 129 at 12-18, 340.

143. Boundary-work is, after all, rhetorical work. See Gieryn, Cultural Boundaries, supra note 129 at 4-5. On boundaries and the medical profession, see Colleen Derkatch, Bounding Biomedicine: Evidence and Rhetoric in the New Science of Alternative Medicine (University of Chicago Press, 2016) at 8-12, 21ff; Colleen Derkatch, “Demarcating Medicine’s Boundaries: Constituting and Categorizing in the Journals of the American Medical Association” (2012) 21 Technical Communication Q 210, DOI: https://doi.org/10.1080/10572252.2012.663744. See generally Charles Alan Taylor, “Defining the Scientific Community: A Rhetorical Perspective on Demarcation” (1991) 58 Communications Monographs 402, DOI: https://doi.org/10.1080/03637759109376238; Anne Holmquest, “The Rhetorical Strategy of Boundary-Work” (1990) 4 Arg 235, DOI: https://doi.org /10.1007/BF00173966.

144. See Andrew Abbott, The System of Profession: An Essay on the Division of Expert Labor (University of Chicago Press, 1988) at 81, 106, 118ff [Abbott, System of Profession]. On medical practice variations, see Mathew Mercuri & Amiram Gafni, “Examining the Role of the Physician as a Source of Variation: Are Physician-Related Variations Necessarily Unwarranted?” (2018) 24 J Evaluation in Clinical Practice 145, DOI: https://doi.org/10.1111/jep.12770; Ashley N Corallo et al, “A Systematic Review of Medical Practice Variation in OECD Countries” (2014) 114 Health Pol’y 5, DOI: https://doi.org/10.1016/j.healthpol.2013.08.002; Mathew Mercuri & Amiram Gafni, “Medical Practice Variations: What the Literature Tells Us (Or Does Not) About What Are Warranted and Unwarranted Variations” (2011) 17 J Evaluation in Clinical Practice 671, DOI: https://doi.org/10.1111/j.1365-2753.2011.01689.x; Klim McPherson, “Why Do Variations Occur?” in Tavs Folmer Andersen & Gavin Mooney, eds, The Challenges of Medical Practice Variations (MacMillan Press, 1990) at 16, DOI: https://doi.org/10.1007/978-1-349-20781-7_2.

145. For a partial list of medical specialties in Canada, see e.g. Canadian Medical Association, “Canadian Specialty Profiles” online: www.cma.ca/resources/canadian-physician-specialty-profiles [perma.cc/2XJS-5DGE].

146. If we only consider national specialty organizations, there are currently sixty-nine listed on the Royal College of Physicians and Surgeons of Canada’s website, ranging from the Association of Medical Microbiology and Infectious Disease Canada to the Trauma Association of Canada. See Royal College of Physicians and Surgeons of Canada, “National Specialty Societies,” online: www.royalcollege.ca/en/about/resources/nss.html [perma.cc/D8W5-PE2V].

147. See Sheila Jasanoff, The Fifth Branch: Science Advisers as Policymakers (Harvard University Press, 1990) at 14.

148. That said, formal markers can certainly be mobilized very effectively. See e.g. Joseph S Oteri, Martin G Weinberg & Martin S Pinales, “Cross-Examination of Chemists in Narcotic and Marijuana Cases” (1973) 2 Contemporary Drug Problems 225 at 226, 236. Argumentative resources that are very particular to a specific context can be mobilized to undermine a witness’s claim to relevant expertise. See e.g. Steven Yearley, “Bog Standards: Science and Conservation at a Public Inquiry” (1989) 19 Soc Studies Science 421 at 427-29, DOI: https://doi.org/10.1177/030631289019003002.

149. Indeed, whether or not the standard of care was met is central to medical malpractice actions, and in most cases plaintiffs must “lead expert evidence of a physician practising in that area of medicine attesting to the defendant’s failure to meet the standard of care required in the circumstances”; without such evidence, the plaintiffs’ actions run a significant risk of being summarily dismissed. See Walker v Canada, 2019 ONSC 4578 at para 10; Whitehead v Ontario Shores Centre for Mental Health Sciences, 2024 ONSC 2566 at para 3; Johnson v Rajanna, 2020 ONSC 2489 at paras 16-17, rev’d on other grounds 2021 ONCA 453; Cossette c Dufour, 2023 QCCS 4906 at paras 22-23, 30-32; Caron c Marois, 2023 QCCQ 8096 at para 66. See also Robertson & Picard, supra note 30 at 287, 502; Alakoozi Estate v Hospital for Sick Children, 2004 CanLII 8394 (ONCA) (in cases involving complicated medical questions, plaintiffs are required to provide expert evidence on the standard of care; failure to do so will lead to the dismissal of the plaintiff’s claim). It is because of the singular importance of expert evidence on the standard that such evidence often has no difficulty meeting the threshold requirements of necessity, relevance, and absence of an exclusionary rule.

150. Indeed boundary-work can broadly be defined as “a communally approved drawing of lines between ‘good’ and ‘bad’ work (and, not trivially, between good and bad workers) within a single discipline, between different disciplines, and between ‘science’ and other forms of authoritative knowledge.” See Sheila Jasanoff, Science at the Bar: Law, Science, and Technology in America (Harvard University Press, 1995) at 53 [emphasis in original] [Jasanoff, Science at the Bar].

151. Trial judges engage in boundary-work when they declare a proffered expert witness as an expert in a given field. We can say that in the eyes of the law, a witness only becomes an expert following a favourable admissibility judgment. Ibid at 42-68. Note that trial judges’ boundary-work in admissibility decisions follows a previous phase of boundary-work, led by the parties themselves. The specific procedural pathway in which this previous phase of party-led boundary-work varies. See Anderson, supra note 51 at paras 12.6ff, 18.50, 19.46, 20.56. The voir dire is the default pathway. See ibid at paras 12.9, 12.12. But the pathway to the Cheesman decision was a pre-trial motion. Regardless, the basic idea is the same: The parties argue as to where the boundaries should be drawn. The party proffering the expert typically argues for the most capacious boundaries possible, to preserve as much cognitive authority for their expert as possible. The opposing party tries to whittle away at that authority by arguing for narrower boundaries. The opposing party’s ideal is to show that the expert either has no authority, or that their authority is simply over a “territory” that is not relevant to the questions at hand. Alternatively, the opposing party may be satisfied in confining the expert within a smaller territory than that proposed by the proffering party. Since judicial boundary-work in admissibility decisions follows a prior phase of boundary-work undertaken by the parties, future studies could consider whether and how judicial boundary-work builds on the parties’ boundary-work. Such studies could help to reduce the “opaqueness of judicial constructions of science and expertise.” See Jasanoff, Science at the Bar, supra note 150 at 61.

152. See Cheesman, supra note 3 at paras 28-31, 38, 41, 91, 111.

153. The more you specify a physician’s concrete circumstances, the farther away you get from “all physicians,” and vice versa. This makes the “all physicians” community elusive, mostly invisible in medical malpractice lawsuits, because these suits lead to the articulation of a precise standard of care that satisfies the “same circumstances” requirement articulated in Ter Neuzen. See Ter Neuzen, supra note 29 at para 33. On being a representative or “spokesperson,” see Bruno Latour, Reassembling the Social: An Introduction to Actor-Network-Theory (Oxford University Press, 2005) (“to delineate a group, no matter if it has to be created from scratch or simply refreshed, you have to have spokespersons which ‘speak for’ the group existence” at 31).

154. We could also say, using Abbott’s term, that physicians’ cognitive authority flows from the “jurisdiction” that they have claimed over a given human problem (or set of problems), and that professional organizations’ claim to jurisdiction comes with obligations. See Abbott, System of Profession, supra note 144 at 35-40, 59-60, 82-83. The term “jurisdiction” is particularly apt in the context of an expert witness testifying on the medical standard of care: We can see expert witnesses as part of a process that may lead to their words being the basis for the judge “legislating” a rule of conduct (i.e., the standard of care) for their profession. For another application of the notion of “jurisdiction” in relation to cognitive and epistemic authority and legal controversies, see e.g. David E Winickoff, “Epistemic Jurisdictions: Science and Courts in Regulatory (De)Centralisation” in Emilie Cloatre & Martyn Pickersgill, eds, Knowledge, Technology and Law (Routledge, 2015) 173 at 175-76, DOI: https://doi.org/10.4324/9780203797600.

155. This is reminiscent of the practice of “turfing” within the medical profession: shifting a patient to another physician or institution by reframing the patient’s condition and history such that the transfer seems justified. See Catherine V Caldicott, “Turfing Revisited” (2012) 14 Am Medical Assoc J Ethics 389, DOI: https://doi.org/10.1001/virtualmentor.2012.14.5.medu2-1205.

156. See Cheesman, supra note 3 at paras 93-94.

157. Ibid at paras 101-102.

158. Ibid at para 39.

159. The terms “technoscience” and “technoscientific” are commonly used in Science Studies scholarship to signal that the knowledges and practices that make up “science” and “technology” are often deeply enmeshed and difficult to dissociate from one another. See Jasanoff, “A Field of Its Own,” supra note 54 (Science Studies “scholarship asserts that technological innovation would not be possible without scientific problem-solving; in reverse, scientific discovery could not proceed without technologies to enable new experimental methods and approaches” at 176). See also Michael Lynch, “Ontography: Investigating the Production of Things, Deflating Ontology” (2013) 43 Soc Studies Science 444, DOI: https://doi.org/10.1177/0306312713475925 (Science Studies scholarship abundantly illustrates that “knowledge of what is in the world is bound up with the methods for generating such knowledge” at 455). The common use of these terms in Science Studies scholarship is at least partly attributable to Bruno Latour’s highly influential book. See Science in Action (Harvard University Press, 1987) at 29, 174-75. For examples of uses of these terms in scholarship at the intersection of Science Studies and law, see generally Cloatre & Pickersgill, supra note 154.

160. Abbott, System of Profession, supra note 144 at 189. See also Roberta Bivins, Alternative Medicine? A History (Oxford University Press, 2007) at 35-39. The “Evidence-Based Medicine” (EBM) movement can be seen as an attempt to anchor the medical profession’s authority in evidence that is “more scientific” than “mere” clinical (i.e., personal) experience. See generally David Mercer, “Science, Legitimacy, and ‘Folk Epistemology’ in Medicine and Law: Parallels between Legal Reforms to the Admissibility of Expert Evidence and Evidence-Based Medicine” (2008) 22 Soc Epistemology 405, DOI: https://doi.org/10.1080/02691720802559420; Miriam Solomon, Making Medical Knowledge (Oxford University Press, 2015) at 105-21; Jeremy Howick, The Philosophy of Evidence-Based Medicine (Wiley-Blackwell, 2011) at 11-15, DOI: http://doi.org/10.1002/9781444342673.

161. See Steven Shapin, The Scientific Life: A Moral History of a Late Modern Vocation (University of Chicago Press, 2008) at 3 [Shapin, Scientific Life]. Note also the “procedural sense” of objectivity according to which objectivity is something that can be secured by following impersonal rules and procedures for inquiry that constrain the role of what is personal or subjective to the inquirer. See Allan Megill, “Four Senses of Objectivity” in Alan Megill, ed, Rethinking Objectivity (Duke University Press, 1994) 1 at 10-11; Stephen Gaukroger, Objectivity: A Very Short Introduction (Oxford University Press, 2012) at 6-8, DOI: https://doi.org/10.1093/actrade/9780199606696.003.0001; Heather E Douglas, Science, Policy, and the Value-Free Ideal (University of Pittsburgh Press, 2009) at 117ff.

162. Shapin, Scientific Life, supra note 161 at 4, 7-9. See also John A Schuster & Richard R Yeo, “Introduction” in John A Schuster & Richard R Yeo, eds, The Politics and Rhetoric of Scientific Method: Historical Studies (D Reidel Publishing Company, 1986) ix (“[s]cientific method, usually construed in terms of assumptions about the rules of procedure in the physical sciences, continues to be widely treated as the epitome of reason and portrayed as an instrument capable of producing objective knowledge wherever it is properly applied” at x).

163. See Theodore M Porter, Trust in Numbers: The Pursuit of Objectivity in Science and Public Life, 2nd ed (University of Chicago Press, 2020) at ix, 11-17, DOI: https://doi.org/10.1515/9780691210544. See also Gaukroger, supra note 161 at 68-78.

164. Lorraine Daston, “Objectivity and the Escape from Perspective” (1992) 22 Soc Studies of Science 597 at 607-11, DOI: https://doi.org/10.1177/030631292022004002. See also Theodore M Porter, “Objectivity as Standardization: The Rhetoric of Impersonality in Measurement, Statistics, and Cost-Benefit Analysis” in Megill, supra note 161 at 197 [Porter, “Objectivity as Standardization”].

165. See Barbara Herrnstein Smith, Scandalous Knowledge: Science, Truth and the Human (Duke University Press, 2006) at 58, DOI: https://doi.org/10.1515/9780748626342.

166. Barbara Herrnstein Smith, Belief and Resistance: Dynamics of Contemporary Intellectual Controversy (Harvard University Press, 1997) at 25 [Smith, Belief and Resistance].

167. A key thread running across many of these studies is that “solutions to the problem of knowledge are embedded within practical solutions to the problem of social order, and that different practical solutions to the problem of social order encapsulate contrasting practical solutions to the problem of knowledge.” See Steven Shapin & Simon Schaffer, Leviathan and the Air-Pump (Princeton University Press, 1985) at 15, DOI: https://doi.org/10.1515/9781400838493-005.

168. Shapin, Scientific Life, supra note 161 at 3. Indeed, polymath philosopher-scientist Michael Polanyi noted that “true knowledge is deemed impersonal, universally established, objective.” See Michael Polanyi, Personal Knowledge: Towards a Post-Critical Philosophy (Routledge & Kegan Paul, 1958) at iv, DOI: https://doi.org/10.4324/9780203442159. Regarding Polanyi’s idea of “tacit knowledge” and Polanyi’s influence on Science Studies, see Charles Thorpe, “Michael Polanyi and the Politics of Science Studies” (2013) 23 Metascience 399, DOI: https://doi.org/10.1007/s11016-013-9848-5.

169. Smith, Belief and Resistance, supra note 166 at 25. Note self-effacement by a witness does not prevent their audience from evaluating their claims based on an appreciation of their cognitive authority, and that this appreciation is often partly shaped by the audience’s perception of the witness’s credentials, class, age, race, et cetera (ibid at 148).

170. Note however that the distinct meanings of “science” and “art” are also a modern development: The words now designate contrasting forms of knowledge whereas they used to be interchangeable, both referring to a skill or body of knowledge. See Raymond Williams, Keywords: A Vocabulary of Culture and Society (Oxford University Press, 1983) at 277.

171. Yaron Ezrahi, “Science and the Political Imagination in Contemporary Democracies” in Sheila Jasanoff, ed, States of Knowledge: The Co-production of Science and Social Order (Routledge, 2004) 254 at 255-57, DOI: https://doi.org/10.4324/9780203413845.

172. Jasanoff, Science at the Bar, supra note 150 (“the public ethos of science holds that the truth of a claim must be assessed independently of the personal attributes of the individual making that claim” at 55). See also Porter, “Objectivity as Standardization,” supra note 164.

173. See e.g. WBLI, supra note 5 at paras 32, 36, 52, 54, 57, 60.

174. For an account of how identifying experts involves the reading of signs, see generally Charles Lassiter, “Reading the Signs: From Dyadic to Triadic Views for Identifying Experts” (2024) 38 Soc Epistemology 98, DOI: https://doi.org/10.1080/02691728.2023.2263423. See also Jamie Carlin Watson, “Follow the Signs: Taking Direction from Semiotics on How to Identify Experts” (2024) 13 Soc Epistemology Rev & Reply Collective 37; Charles Bazerman, “On Experts and Expertise: A Response to the Special Issue of Social Epistemology 38(1)” (2024) 13 Soc Epistemology Rev & Reply Collective 22.

175. See Jasanoff, Science at the Bar, supra note 150 at 55. Jasanoff observes that: “[s]cientists assert credibility by grounding their observations in bodies of communally accredited knowledge” (ibid). See also Starr, supra note 132 at 12; Shapin & Schaffer, supra note 167 at 78 (discussing the collective, public dimension of the scientific enterprise as a corrective to individuals’ biases or lack of ability). The communal-institutional aspect of science also plays a key role in Robert K Merton’s influential account of the normative structure of science, resting on four imperatives: universalism, communism, disinterestedness, and organized skepticism. See Robert K Merton, The Sociology of Science: Theoretical and Empirical Investigations (University of Chicago Press, 1973) at 267ff.

176. See Steven Shapin, Never Pure: Historical Studies of Science as if It Was Produced by People with Bodies, Situated in Time, Space, Culture, and Society, and Struggling for Credibility and Authority (Johns Hopkins University Press, 2010) at 22 [Shapin, Never Pure]. Shapin outlines one way to explain credibility:

[R]ecognize credibility as embedded within what one might call…a metonymic (or “standing-for”) relationship…So all testimony about states of affairs stands in a metonymic relationship to those states of affairs, and the condition of you knowing about these things—otherwise unavailable to you—is your accepting the legitimacy of that relationship (ibid) [emphasis in original].

177. To be precise, it is not the personal traits themselves that play a role in admissibility decisions, but rather the markers of such traits, which are interpreted by the judge as standing-for the traits. I admit that this is a simplification of the interpretive-semiotic dynamics involved in evidence, but it suffices for present purposes. For a more detailed discussion of the semiotics of evidence law, see Dennis R Klinck, “Evidence as Rhetoric: A Semiotic Perspective” (1994) 26 Ottawa L Rev 125. See also Lassiter, supra note 174; Watson, supra note 174; Bazerman, supra note 174.

178. Cheesman, supra note 3 at para 45. These elements of Gill’s biography were highlighted separately from the more mundane list of elements relating to his practical experience at the time. Ibid at paras 42-43.

179. Ibid at para 45.

180. Ibid at para 39.

181. Ibid at para 44.

182. Ibid at para 45.

183. Ibid at para 46.

184. Ibid at para 47.

185. Ibid at para 44.

186. This conception of virtue can be traced back to Aristotle. See The Nicomachean Ethics, translated by David Ross, revised ed by Lesley Brown (Oxford University Press, 2009) at 2.6-1106a10. Aristotle defines virtues as “states of character.” On Aristotelian ethics, see generally Richard Kraut, “Aristotle’s Ethics” in Edward N Zalta & Uri Nodelman, eds, The Stanford Encyclopedia of Philosophy (Stanford University, 2022), online: plato.stanford.edu/archives/fall2022/entries/aristotle-ethics [perma.cc/Z5YK-2M32]. See also Marcia Homiak, “Moral Character” in Edward N Zalta, ed, The Stanford Encyclopedia of Philosophy (Stanford University, 2019), online: plato.stanford.edu/archives/sum2019/entries/moral-character [perma.cc/8EVG-4RQZ] (discussing the virtues and moral character in both ancient and contemporary moral philosophy).

187. Rosalind Hursthouse & Glen Pettigrove, “Virtue Ethics” in Edward N Zalta & Uri Nodelman, eds, The Stanford Encyclopedia of Philosophy (Stanford University, 2022), online: plato.stanford.edu/archives/win2022/entries/ethics-virtue [perma.cc/BQ9J-2EVS]. Hursthouse and Pettigrove state that: “A virtue is an excellent trait of character…a disposition, well entrenched in its possessor...to notice, expect, value, feel, desire, choose, act, and react in certain characteristic ways” (ibid).

188. Note that the merging of “character” and “personality” also occurs in discussions of evidence law. See Paciocco, Paciocco & Stuesser, supra note 6 at 63. Paciocco, Paciocco, and Stuesser define “character evidence” as “proof that is presented in order to establish the personality, psychological state, attitude...of an individual to engage in particular behaviour” (ibid). Note moreover that a psychological-psychiatric connotation can follow from this merging of character and personality. See Lederman, Fuerst & Stewart, supra note 19 at para 10.1. Indeed, Lederman, Fuerst, and Stewart clarify character as “a trait, or group of traits,” thereby implying that these traits can be measured via psychological sciences. Note also that this paragraph lumps together “moral and mental qualities.” Additionally, accused persons in criminal cases have attempted to adduce psychiatric evidence to prove that their psychological make-up was incompatible with the commission of their alleged crime (ibid at para 10.36ff). This psychological-psychiatric connotation is especially unserviceable for present purposes, since it draws attention away from the distinctively ethical dimension of evaluation that is at the heart of discussions concerning virtues and excellences of character.

189. Homiak, supra note 186. See also Aristotle, Nicomachean Ethics, supra note 186. Aristotle, in Nicomachean Ethics, states:

[E]very virtue or excellence both brings into good condition the thing of which it is the excellence and makes the work of that thing be done well; e.g. the excellence of the eye makes both the eye and its work good; for it is by the excellence of the eye that we see well (at 2.6-1106a16).

190. This can be seen in various contexts. See generally Toby P Newstead & Ronald E Riggio, eds, Leadership and Virtues: Understanding and Practicing Good Leadership (Routledge, 2023), DOI: https://doi.org/10.4324/9781003212874; Al Gini & Ronald M Green, 10 Virtues of Outstanding Leaders: Leadership and Character (Wiley-Blackwell, 2013), DOI: https://doi.org/10.1002/9781118551653; Jacqueline Boaks & Michael P Levine, eds, Leadership and Ethics (Bloomsbury, 2015); John William Devine, “O Captain! My Captain!: Leadership, Virtue, and Sport” (2021) 48 J Philosophy Sport 45, DOI: https://doi.org/10.2307/j.ctt4cgk59.42; Lonnie Gentry & James W Fleshman, “Leadership and Ethics: Virtue Ethics as a Model for Leadership Development” (2020) 33 Clinics in Colon & Rectal Surgery 217, DOI: https://doi.org/10.1055/s-0040-1709437; Karl N Haden, “The Virtue of Leadership” (2019) 83 J Dental Education S10, DOI: https://doi.org/10.21815/JDE.019.117.

191. See Max Weber, Economy and Society: An Outline of Interpretive Sociology, eds Guenther Ross & Claus Wittich (University of California Press, 1978) at 216. This claim basically tracks Max Weber’s notion of “charismatic authority,” following which a leader “is obeyed by virtue of personal trust in his revelation, his heroism or his exemplary qualities” (ibid).

192. It is difficult to distinguish trustworthiness, credibility, and good character, for they often run together. See e.g. Paciocco, Paciocco & Stuesser, supra note 6 at 44, 592-93, 624-25.

193. Two striking examples come from the Canadian Medical Association and the Royal College of Physicians and Surgeons of Canada. See Canadian Medical Association, “CMA Code of Ethics and Professionalism” (8 December 2018), online (pdf): policybase.cma.ca/viewer?file=%2Fmedia%2FPolicyPDF%2FPD19-03.pdf [perma.cc/Z87G-V74Y]. First, the Canadian Medical Association’s Code of Ethics and Professionalism is explicitly oriented towards virtues in that it outlines the “virtues and commitments” that are “fundamental to the ethical practice of medicine.” Among the many commitments listed in said Code is the “[c]ommitment to professional excellence,” which requires that physicians “[c]ontribute to the development and innovation in medicine through clinical practice, research, teaching, mentorship, leadership” (ibid) [emphasis added]. The Code also states that physicians have a professional responsibility to “[p]romote and enable formal and informal mentorship and leadership opportunities across all levels of training, practice, and health system delivery” (ibid) [emphasis added]. Second, the Royal College of Physicians and Surgeons of Canada (which oversees the medical education of specialists in Canada, namely by accrediting university programs that train resident physicians for their specialty practices) follows the “CanMEDS” framework. See Royal College of Physicians and Surgeons of Canada, “CanMEDS Framework” (last visited 26 December 2024), online: www.royalcollege.ca/en/standards-and-accreditation/canmeds [perma.cc/552M-65RD]. The Royal College of Physicians and Surgeons of Canada describes it as

a physician competency framework that identifies and describes the abilities physicians require to effectively meet the health care needs of the people they serve.…These abilities are grouped thematically under seven roles….A competent physician seamlessly integrates the competencies of all seven CanMEDS Roles (ibid).

Among the seven roles of the CanMEDS framework, it includes that of “leader” (ibid). See also College of Physicians and Surgeons of Canada, “CanMEDS Role: Leader” (last visited 26 December 2024), online: www.royalcollege.ca/en/standards-and-accreditation/canmeds/leader-role.html [perma.cc/88LZ-4QMP].

194. Atul Gawande, “The End of the Master Builder” in The Checklist Manifesto: How to Get Things Right (Metropolitan Books, 2010) 48 at 59.

195. See generally John Turri, Mark Alfano, & John Greco, “Virtue Epistemology” in Edward N Zalta, ed, The Stanford Encyclopedia of Philosophy (Stanford University, 2021), online: plato.stanford.edu/archives/win2021/entries/epistemology-virtue [perma.cc/7HKM-VTV6]; Moira Howes, “Objectivity, Intellectual Virtue, and Community” in Flavia Padovani, Alan Richardson & Jonathan Y Tsou, eds, Objectivity in Science: New Perspectives from Science and Technology Studies (Springer, 2015) at 173; Jason Baehr, The Inquiring Mind: On Intellectual Virtues and Virtue Epistemology (Oxford University Press, 2011). See also Jonathan Matheson, “Epistemic Autonomy and Intellectual Humility: Mutually Supporting Virtues” (2023) 38 Soc Epistemology 318, DOI: https://doi.org/10.1080/02691728.2023.2258093; T Ryan Byerly, “The Values of Intellectual Transparency” (2023) 37 Soc Epistemology 290, DOI: https://doi.org/10.1080/02691728.2023.2171747. In the context of medicine, see Erica Zarkovich & REG Upshur, “The Virtues of Evidence” (2002) 23 Theoretical Medicine & Bioethics 403, DOI: https://doi.org/10.1023/a:1021217908383.

196. Turri, Alfano & Greco, supra note 195.

197. For Jasanoff’s definition of boundary-work, see Jasanoff, Science at the Bar, supra note 150.

198. Steven Hilgartner, Science on Stage: Expert Advice as Public Drama (Stanford University Press, 2000) at 15. Moreover, Hilgartner observes that “scientists cannot appraise new knowledge claims without evaluating the individuals, laboratories, and communities that stand behind them” (ibid at 161, n41).

199. Ibid at 6.

200. Ibid at 7 [emphasis in original].

201. See e.g. Ron Levi & Mariana Valverde, “Studying Law by Association: Bruno Latour Goes to the Conseil d’État” (2008) 33 Law & Soc Inquiry 805, DOI: https://doi.org/10.1111/j.1747-4469.2008.00122.x.; Mariana Valverde, “Theoretical and Methodological Issues in the Study of Legal Knowledge Practices” in Austin Sarat, Lawrence Douglas & Marth Merrill Umphrey, eds, How Law Knows (Stanford University Press, 2007) at 72.

202. Mariana Valverde, “Social Facticity and the Law: A Social Expert’s Eyewitness Account of Law” (1996) 5 Soc & Leg Stud 201 at 213-14, DOI: https://doi.org/10.1177/096466399600500204.

203. Ibid at 205, 213.

204. Ibid at 213.

205. Ibid at 214.

206. Gary Edmond, “The Law-Set: The Legal-Scientific Production of Medical Propriety” (2001) 26 Science Tech & Human Values 191, DOI: https://doi.org/10.1177/016224390102600204. See also Gary Edmond, “Science, Law and Narrative: Helping the Facts to Speak for Themselves” (1999) 23 S Ill ULJ 555 at 557. In his 1999 article, Edmond demonstrates that from a Science Studies perspective, the fact that knowledge claims are susceptible to being strengthened or weakened in this manner is typically not viewed as a social problem in need of correction or elimination, but rather one of the “largely unavoidable consequences of public exposure to the evaluation of expert knowledge in contemporary democratic societies” (and therefore a phenomenon in need of greater understanding) (ibid).

207. Gary Edmond, “Azaria’s Accessories: The Social (Legal-Scientific) Construction of the Chamberlains’ Guilt and Innocence” (1998) 22 Melbourne UL Rev 396 at 412.

208. Ibid at 415-16.

209. I reference two other cases where the judge explicitly mentioned leadership in describing an expert witness. See e.g. McLellan v Shirley, 2015 BCSC 1930 at paras 22, 24. The physician who prepared an expert report on the medical standard of care is described as having “held numerous leadership positions in his field” and being “amply qualified” (ibid). Also, see e.g. Quinlan v Eastern Regional Integrated Health Authority of Newfoundland and Labrador, 2023 NLSC 138 at para 45 [Quinlan]. In Quinlan, a nurse called as an expert witness by the Health Authority (defendant alongside physicians in a malpractice suit) is described as having “a wealth of experience in a variety of capacities, culminating in the responsible position she now occupies” and being “a leadership member of the Registered Nurses of Ontario” (ibid).

210. See Cheesman, supra note 3 at paras 39-49.

211. Recall that Gill’s testimony was contested because the plaintiff sought to have him testify on the minimum standards expected of all physicians (i.e., even physicians outside his own specialty of ophthalmology) when working in multidisciplinary teams. See Cheesman, supra note 3 at paras 29-31. Recall, also, that Gill’s peer-reviewed publications and conferences were “not in fields directly related to [the plaintiff’s] diagnosis” (ibid at para 45). Finally, recall that nothing in Cheesman indicates that these publications and conferences concerned minimum standards expected of all physicians.

212. In addition to the numerous studies cited above, see also Mariana Valverde, Law’s Dream of a Common Knowledge (Princeton University Press, 2003) at 18 [Valverde, Law’s Dream].

213. The qualitative and holistic aspect of the assessment contemplated here is helpfully illustrated by some authors in business ethics. See e.g. James Arthur et al, “The Value of Character-Based Judgement in the Professional Domain” (2021) 169 J Bus Ethics 293, DOI: https://doi.org/10.1007/s10551-019-04269-7; Edwin Hartman, “Aristotle on Character Formation” in Christoph Luetge, ed, Handbook of the Philosophical Foundations of Business Ethics (Springer, 2013) at 67.

214. The insight that speakers’ credibility or trustworthiness is bound up with their personal excellence or character is not limited to Science Studies scholarship. See Aristotle, The Art of Rhetoric, translated by Robin Waterfield (Oxford University Press, 2018) at 1.2-1356a5. It has been a commonplace among rhetoricians for a long time—at least since Aristotle, who defined “[p]roof through character” (or ethos) as proof that “occurs when a speech is delivered in such a way as to make the speaker credible, since we trust good men more fully and more readily” (ibid). Aristotle also observes:

[S]ince the object of rhetoric is a judgment (for even deliberative speeches are judged by the audience, and a verdict in a lawsuit is a judgment), it follows that a speaker must not only consider how to make his argument convincing and credible, but must also present himself as a certain kind of person and influence the judge. For the kind of man a speaker appears to be…makes a great deal of difference for persuasion, especially in a deliberative context, but also in lawsuits (ibid at 2.1-1377b16).

See also Michel Meyer, La Rhétorique d’Aristote: Un commentaire raisonné (Vrin, 2020) at 67, 75 (Aristotle’s conception of ethos—a cornerstone of rhetorical theory—includes the speaker’s character, credibility, trustworthiness, and even the speaker’s value to the community). This ancient insight is far from esoteric: It can, for instance, simply be put forward as a basic principle of good advocacy. See generally J Kenneth McEwan, Sopinka on the Trial of an Action, 4th ed (LexisNexis, 2020) at 20. Finally, a key contribution of Science Studies has been to expand this ancient insight to technoscience which, as Philip Kitcher observes, has traditionally been thought of as a “rhetoric-free zone.” See “The Cognitive Functions of Scientific Rhetoric” in Henry Krips, JE McGuire & Trevor Melia, eds, Science, Reason, and Rhetoric (University of Pittsburgh Press, 1995) at 47-48.

215. Mohan, supra note 4 at 25; R v Marquard, [1993] 4 SCR 223 (SCC) at 265, L’Heureux-Dubé J, dissenting.

216. Bingley, supra note 5 at para 19.

217. David M Paciocco, “Proof and Progress: Coping with the Law of Evidence in a Technological Age” (2013) 11 Can JL & Tech 181 at 186.

218. See also Anderson, supra note 51 at para 12.66 (none of the factors listed by Anderson as relevant in the assessment of an expert’s qualifications relate to the expert’s character).

219. This has been the case for a long time, even in scientific circles. See Steven Shapin, A Social History of Truth: Civility and Science in Seventeenth-Century England (University of Chicago Press, 1994) at 226-27 (describing early modern concern for the disinterestedness and integrity of sources, when evaluating scientific testimony in practice); HM Collins, Changing Order: Replication and Induction in Scientific Practice (University of Chicago Press, 1985) at 87-88; HM Collins, “The Seven Sexes: A Study in the Sociology of a Phenomenon, or the Replication of Experiments in Physics” (1975) 9 Sociology 205 at 214-15. In his 1975 article, Collins lists “non-scientific” factors that routinely entered physicists’ assessments of findings made by others in their field of research, such as: faith in experimenters’ honesty, personality, intelligence, reputation, et cetera. See also Turri, Alfano & Greco, supra note 195. Turri, Alfano, and Greco observe that “epistemic evaluation is just another example of the basic way in which we evaluate all behavior, performances, and attempts” (ibid). Gloria Origgi writes at the intersection of virtue and social epistemology and psychology. See generally “The Social Indicators of the Reputation of an Expert” (2022) 36 Soc Epistemology 541, DOI: https://doi.org/10.1080/02691728.2022.2116962. Origgi argues that “indicators of reputation, values and moral commitments to values are indispensable strategies to come to trust in a rational way” (ibid). See Mia Karabegovic & Hugo Mercier, “The Reputational Benefits of Intellectual Humility” (2024) 15 Rev Philosophy & Psychology 483, DOI: https://doi.org/10.1007/s13164-023-00679-9.

220. Shapin, Never Pure, supra note 176 at 20. Shapin asserts that “law-court assessments of credibility derive from inferential practices that flourish in everyday life.…Knowing how to recognize truthfulness is knowing your way around a culture” (ibid). See Lynn Smith, “The Ring of Truth, the Clang of Lies: Assessing Credibility in the Courtroom” (2012) 63 UNBLJ 10 at 11. Smith states that “[t]he courtroom creates special conditions and imposes special constraints on the assessment of credibility, but the process itself is similar to what we informally and often silently do in our daily lives” (ibid). See generally Lynch, “Expertise in Action,” supra note 63; Sheila Jasanoff, “The Eye of Everyman: Witnessing DNA in the Simpson Trial” (1998) 28 Soc Studies Science 713, DOI: https://doi.org/10.1177/ 030631298028005003; Augustine Brannigan & Michael Lynch, “On Bearing False Witness: Credibility as an Interactional Accomplishment” (1987) 16 J Contemporary Ethnography 115.

221. Shapin, Never Pure, supra note 176 at 21.

222. See Lynch, “Circumscribing Expertise,” supra note 63. Lynch provides a fruitful analysis of lawyers’ strategies around the claiming and contesting of witnesses’ expertise by “employing a label, sign, or symbol to assign” status (ibid at 166).

223. Etienne Vergès & Lara Khoury, “Le traitement judiciaire de la preuve scientifique: une modélisation des attitudes du juge face à la connaissance scientifique en droit de la responsabilité civile” (2017) 58 C de D 517 (“[l]e style de rédaction ne suit pas un modèle préconçu et n’emploie pas un langage uniforme. Chaque juge a son style, son degré de clarté. L’influence de la preuve d’expert est parfois évidente et explicite, parfois ambiguë” at 525).

224. Note that hybrids and hybridity are a recurrent theme in Science Studies and sociolegal scholarship that draws on it. See e.g. Valverde, Law’s Dream, supra note 212 at 3, 18, 20, 22, 26, 52, 53, 60, 223, 225, 227; Mariana Valverde, “Pragmatist and Non-Pragmatist Knowledge Practices in American Law” (2003) 26 Political & Leg Anthropology Rev 86, DOI: https://doi.org/10.1525/pol.2003.26.2.86.

225. I thank the anonymous reviewer who suggested these lines of potential future inquiry.

226. Cf Ratz v Desa et al, 2015 ONSC 7745 at para 114. In this decision, the court dealt with an objection analogous to the objection raised against Gill’s qualifications in Cheesman: The defendants objected to the testimony of one of the plaintiffs’ experts on the grounds that the expert was only in her second year of medical school at the time of the litigated events. The court describes the objection and provides its reasons for rejecting it in three short sentences contained in the single cited paragraph.