An expert witness is suing a Surrey, B.C. lawyer for defamation over an interview he gave to the Vancouver Sun following a mistrial prompted in part by the lawyer’s verbal attack on him in argument before a judge and jury.
In a notice of civil claim dated July 31, Amrit Toor, a forensic engineer specializing in accident reconstruction, says Thomas Harding’s comments to Sun columnist Ian Mulgrew falsely and maliciously gave the impression that Toor is an “unprofessional, unethical fool or buffoon who gave incompetent, biased and ludicrous testimony” in court. None of the claims have been proven in court.
Toor was retained by the Insurance Corporation of British Columbia in its defence of a suit brought by Harding’s client, a 43-year-old motorcyclist injured in a crash. Following Harding’s closing arguments to a jury in the 13-day trial, the ICBC moved for a mistrial, which was granted on April 30 by B.C. Supreme Court Justice Peter Voith.
Harding’s client claimed to have been struck by a rolling tire from an unidentified vehicle, and according to Voith’s reasons, Toor was the only expert witness who asserted that his account of the crash was not plausible.
According to Voith, Harding devoted a significant portion of his written and oral closing submissions to Toor’s evidence. But the judge ruled Harding crossed the line in a colourful attack that compared the engineer to Johnny Carson’s Carnac the Magnificent character.
“The attack made on Dr. Toor had at least two components or aspects, each of which was repeated in different ways and each of which was inappropriate,” Justice Voith said.
First, Voith said Harding’s comparisons with Carson’s Carnac inappropriately made Toor “an object of derision and ridicule.”
“I accept that counsel can be vigorous in its attack on the evidence and qualifications of an expert. That attack may well use some ‘drama and pathos,’” Voith said. “I do not consider or accept that it should extend to ridicule based on counsel’s belief that a witness’s evidence is ridiculous.”
Second, Voith said he was concerned that Harding described Toor as dishonest without any basis to do so, and without giving Toor an opportunity to address the allegation.
“In concept, such assertions are open to counsel. In order to advance such an assertion, however, it must be properly grounded and the alleged act of dishonesty should, as a matter of fairness, be put to the witness,” Voith said in his reasons.
Harding’s claims in argument that Toor had “falsified” measurements and “misquoted” scientific literature were “inappropriate and unfair” according to Voith, who said they were “intended to and would have the effect of unfairly prejudicing the jury against Dr. Toor.”
Voith explained in his reasons that there were additional problems with Harding’s submissions, and that any attempt to address them “would overwhelm and confuse my own instructions to the jury, and would not, in result, ensure that the defendant received a fair trial,” he said.
“I am accordingly satisfied that the defendant has met the heavy burden which rests on this application,” Voith concluded.
Mulgrew quoted from Voith’s judgment and his interview with Harding in a July 3 article on the case for the Sun. Two days later, Toor requested a retraction and an apology through a lawyer, which, according to his claim, has not been forthcoming. The story is, however, no longer available on the Sun’s web site.
The lawsuit, which demands aggravated, punitive, and special damages, also names Mulgrew, as well as the paper’s owner, Postmedia Network Inc., as defendants.
Harding tells Legal Feeds he is under instructions from his defence counsel not to talk to the media while the case is ongoing.