Admissibility of Expert Evidence: In a Canadian SRO Context

Natalija Popovic, Senior Enforcement Counsel, The Investment Industry Regulatory Organization of Canada (IIROC)

NOTE The views expressed herein are those of the author and do not necessarily reflect those of IIROC. The paper will consider the admissibility of expert evidence as it relates to professional discipline tribunal hearings of the Investment Industry Regulatory Organization of Canada [IIROC], the national self - regulatory organization for investment advisors in the Canadian securities industry. Various issues have been identified in the case law that bear upon expert evidence and its admissibility. Cases in administrative law as well as civil and criminal contexts will be considered. The issues discussed in this paper, include: the relaxing of the rule against an expert giving opinions on the ultimate issue; whether expert evidence is based upon hearsay and if so whether it goes to weight rather than admissibility; issues related to bias of the expert witness, such as independence of the expert, and the expert as advocate; and the use of in-house experts. In addition, IIROC case law will be reviewed with a discussion of the differences in treatment of expert evidence presented to address securities related issues of a technical nature as contrasted with expert evidence presented to address standards in the securities industry.

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Canada Litigation Government March 2014 Vol. 7, No. 26, Winter 2014

Natalija Popovic

Natalija Popovic is Senior Enforcement Counsel for the Investment Industry Regulatory Organization of Canada, IIROC, the national regulator of its member investment firms and investment advisors. She has over 20 years of legal experience, is currently a member of the Ontario Bar and was also called to the Bar of Bermuda. For several years Ms. Popovic practiced commercial litigation, including professional discipline for the accounting profession, at a downtown Toronto law firm. Ms. Popovic subsequently relocated to Bermuda where she worked in compliance at the Bank of Butterfield. Upon returning to Toronto, Canada, Ms. Popovic has worked in professional discipline and securities regulation at The Toronto Stock Exchange, Market Regulation Services Inc. and IIROC. Ms. Popovic has worked as a volunteer for the Ontario Bar Association; as a lecturer for the Law Society of Upper Canada; as an Articling Principal and student mentor; with the Junior Achievement Program, as a moot court judge at the University of Toronto, and as a committee member for St. Joseph’s Health Care Centre. She is a frequent presenter at conferences on issues of professional discipline and regulation.

The Investment Industry Regulatory Organization of Canada (IIROC)

Canada Litigation Government March 2014 Vol. 7, No. 26, Winter 2014