March 27, 2014

Kevin Gourlay

Kevin Gourlay

Reasons today from Mr. Justice Sigurdson in Giczi v. Kandola, 2014 BCSC 508, a case in which the plaintiff suffered serious injuries that prevented her from, for better or for worse, being able to pursue a career as a Bette Midler tribute artist.

Of particular interest is the Court’s discussion of the bounds of permissible lay opinion evidence.  The plaintiff called many witnesses from the music industry to give evidence about the plaintiff’s skills as a singer and a performer.  Of course, it is virtually impossible to elicit such evidence without straddling the line between fact and opinion evidence.  Saying anything about an individual’s ability to sing (or box, or play hockey, or whatever it may be) without expressing an opinion is very difficult.

Plaintiff’s counsel was largely successful in having the Court accept the lay opinion evidence on the basis of the Graat criteria.  Those criteria arose from the conundrum of whether somebody can say an individual appeared drunk or whether that constituted opinion evidence.  The criteria which must be satisfied are:

1.               the witnesses were in a better position than the trier of fact to form the opinion;

2.               the conclusion reached was one that a person of ordinary experience was able to make;

3.               the witness, though not an expert, had the requisite experience to reach the conclusion; and

4.               the opinions being expressed were only “a compendious way of giving evidence as to certain facts”, where those facts were too subtle or complicated to be narrated as effectively without resort to conclusions.

While placing limits on the evidence, Justice Sigurdson accepted the plaintiff’s position:

[147]     I find where the witness in question has sufficient personal experience, the witness is able to give his or her lay opinion as to the quality of the plaintiff’s performance and singing, because that opinion is relevant and is a compendious way of giving evidence of certain facts that are too subtle or complicated to be narrated as effectively without resort to conclusions. Testimony which falls within this category is evidence of witnesses as to the quality of the plaintiff’s singing, performance and energy, as well as to the quality of her performances as Bette Midler.

[148]     I also find that these witnesses, as they have the requisite experience, are capable of giving admissible lay opinion evidence comparing the plaintiff to other tribute performers generally, Bette Midler tribute singers, or Bette Midler.

So rest assured, you do not have to be qualified as an expert to compare somebody to Bette Midler.

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