Canada: Court Of Appeal Summaries (January 26-30, 2015)

Last Updated: February 9 2015
Article by John Polyzogopoulos

Hello again to everyone. Below are summaries of this week's Ontario Court of Appeal civil decisions (non-criminal). The court's long-awaited decision on expert reports in Moore v Getahun was released yesterday. Most will recall that the issue under consideration were discussions between counsel and expert witnesses and the extent to which consultations between them should be documented and disclosed to the other side. The court has provided counsel with some much needed guidance on dealing with experts and the extent of disclosure obligations in respect of those dealings. The court held that counsel may communicate with an expert on a draft report and assist in the preparation of that report and that not all drafts or notes must be disclosed. However the litigation privilege that attaches is qualified with some exceptions and disclosure obligations may arise in circumstances such as for the production of foundational information.  The court may also order disclosure of such discussions where it can be shown on reasonable grounds that counsel improperly influenced the expert. For a more detailed discussion of Moore v Getahun please see Visnja Jovanovic's article on the case, which can be found here:

Other topics covered this week included family law (material change in circumstance as it relates to varying residency schedules), class actions (refusal of the court to approve the settlement in the claim by lawyers against Carswell for reproducing their facta on their research service, Litigator), summary judgment and more.

Wishing everyone a nice weekend.

Brown v. Lloyd
, 2015 ONCA 46

[Feldman, Cronk and Hourigan JJ.A.]

K.C. Bales and R. Diamond, for the appellant
J. N. Moldaver, for the respondent

Keywords: Family Law, Access, Residency Schedule, Material Change in Circumstances

The appellant, David Lloyd, and the respondent, Moya Dianne Brown, resided together from August 2004 to May 2007.  They never married.  They are the parents of one child, David Daxton Brown Lloyd ("Dax"), who was born on November 14, 2004.  Dax is now 10 years of age. Mr. Lloyd appeals from the order of Stevenson J. of the Superior Court of Justice dated January 14, 2014, dismissing his motion to vary the existing residency schedule for Dax based on alleged material changes in circumstances.  He seeks to increase his access rights so as to implement essentially an equal residency schedule for Dax, affording each parent equal time with him.

The motion judge dismissed Mr. Lloyd's motion to vary.  She found that there had been no material change in Dax's circumstances within the meaning of the governing authorities or the Children's Law Reform Act (the "CLRA").  The threshold requirement of a material change in circumstances not having been met, the motion judge declined to inquire further into the merits of Mr. Lloyd's variation proposal.

1) Did the motion judge err by misapprehending the test for the demonstration of a material change in circumstances?

2) Did the motion judge err by failing to find a material change in circumstances? and

3) Did the motion judge err by failing to consider the "maximum contact principle" and Dax's best interests?

Appeal dismissed.

1) No.  The motions judge referred expressly to the test for variation enunciated by the Supreme Court in the leading case of Gordon v. Goertz, [1996] 2 S.C.R. 27, and noted, correctly, that on the authority of Gordon, the merits of an application to vary a custody and access order may be considered only where the reviewing court is first satisfied that a material change in circumstances has occurred since the date of the order sought to be varied.

2) No. The motion judge considered each of the events or developments advanced by Mr. Lloyd as a material change of circumstances.  These included: Dax's age and advancing maturity; Ms. Brown's remarriage; the birth of her two daughters and her relocation to a new home; and Dax's diagnosis of a learning disability, which occasioned the need for specialized tutoring. For lengthy and detailed reasons, the motion judge concluded that while most of these developments constituted changes in the circumstances that prevailed at the time of the original order, none of them, alone or in combination, met the Gordon test for a material change in circumstances on the facts of this case. 

3) No. The finding of a material change in circumstances is a prerequisite to an examination of the merits of an application to vary an existing custody or access order.  Absent such a finding, the variation inquiry can go no further.

Crawford v. Carey, 2015 ONCA 40

[Doherty, Rouleau & Watt JJ.A.]

F. Crawford, for the plaintiffs (appellants)
S.A. Crocco, for the defendant (respondent) Allan Socken

Keywords: Civil Procedure, Pleadings, Leave to Amend

On appeal from the order of Justice Chiappetta of the Superior Court of Justice dated August 27, 2014.

Did the motion judge err in refusing to grant the plaintiffs (appellants) leave to amend their statement of claim?

Appeal dismissed.

The statement of claim does not plead facts as against the defendant capable of supporting any of the causes of action as pled. Like the motion judge, the court saw no basis upon which to grant the appellants leave to amend.

Holdstock v. Holdstock, 2015 ONCA 42

[Feldman, Simmons and Pardu JJ.A.]

Raymond G. Colautti and Anita E. Landry, for the appellant
Robert J.M. Ballance, for the respondent

Keywords: Family Law, Property, Trust Agreement, Authenticity of Signature, Commercial Property

The parties were involved in matrimonial litigation following a long-standing marriage of 35 years. The current appeal related to a commercial property on which the husband runs his landscaping business. The husband's financial statements show the property as owned by the wife. After the wife entered into an agreement of purchase and sale to sell the property for approximately $80,000 in excess of the valuation-day value, the husband claimed to have found a trust agreement which provides that the wife holds the property in trust for the husband and agrees not to sell it. The wife tendered an unsworn expert report that questioned the authenticity of her signature on the trust agreement. The motion judge granted the wife's motion for a writ of possession on the basis that her alleged signature was refuted by a handwriting analyst. The formal order did not include a declaration that the wife was the owner of the property. Rather, it simply provided that a writ of possession shall issue in favor of the wife. The husband appealed the motion judge's ruling and renewed his request for a trial on the issue of the authenticity of the wife's signature.

Did the motion judge err in issuing the writ of possession?

Appeal dismissed

No. Although the motion judge erred by relying on the unsworn report of a handwriting expert, he came to the correct conclusion that a writ of possession should issue. Given the wife's status as the registered owner, the husband's position in his financial statements that the wife is the owner of the property, and her reliance on that position in selling the property, together with the unclear effect of the declaration of trust, in all the circumstances, the mere existence of the trust document, even if signed, did not justify jeopardizing the favourable sale of the property at this stage of the proceedings. The parties were not precluded from asserting their respective claims to the proceeds of sale as advised.

Agostino v Gary Bean Securities Ltd., 2014 ONCA 49

[Doherty, Juriansz and Huscroft JJ.A.]

M. Agostino, acting in person
L.M. Smits, for the respondents

Keywords: Employment Law, Termination For Cause, Progressive Discipline, Pre-Trial Disclosure of Witnesses, Failure to Disclose not Precluding Calling Witnesses

This was an appeal from the decision of Grace J. dismissing the appellant's action for wrongful dismissal and granting judgment on the respondents' counterclaim for $63,179.66, money found owing as a result of the appellant's expense account.

Appeal dismissed.

The trial judge properly exercised his discretion to allow the respondents to call two witnesses to testify at the trial, despite the fact that they were not included on the pre-trial conference report.

It was open to the trial judge to conclude that the appellant's employment was terminated for just cause given his findings that the appellant made unauthorized trades, lied to a client, and misled the respondent.

Further, there is no legal principle requiring progressive discipline in every case.  The trial judge considered whether progressive discipline was appropriate and determined that it was not.

There was no basis to suggest that the respondents acted with malice or bad faith toward the appellant.

Lastly, there was no need to consider the appellant's notice period argument, and the trial judge's calculation of expenses was supported by the facts.

Pinsky v. Smiley, 2015 ONCA 52

[Weiler, Watt and Epstein JJ.A.]

M. Cheng, for the moving parties, responding parties by way of cross-motion
A. Pinsky, acting in person

Keywords: Civil Litigation, Quashing Appeal, Interlocutory vs. Final

This was a motion to quash the the appellant, Mr. Prinsky's appeal as being interlocutory rather than final. The appellant conceded that the decision on a motion to remove counsel is interlocutory. He argued that the motion judge's refusal to grant him an adjournment to examine a third party was a final one and that the Court of Appeal has jurisdiction to deal with the matter. The appellant sought an adjournment to examine witnesses for whom solicitor client privilege was claimed. The request for the adjournment was intertwined with the refusal to remove Faskens as solicitors of record, and that was not a final order as it flowed from the refusal to move Faskens and was an attempt to circumvent it.

Appeal was quashed and the cross-motion dismissed. This decision was without prejudice to the appellant's right to apply for an extension of time in which to seek leave to appeal to the Divisional Court.

Waldman v Thomson Reuters Canada Limited, 2015 ONCA 53

[Simmons, MacFarland and Benotto JJ.A.]

P.J. Pape and S. Chaudhury, for the appellant
A.E. Bernstein and S. Whitmore, for the respondent

KeywordsClass Actions, Class Proceedings Act1992, Civil Procedure, Courts of Justice Act; s. 6(1)(a)-(b); s. 6(2); s. 19(1)(a)-(b), Appellate Jurisdiction, Approval of Settlement Agreement, Approval of Fee Retainer Agreement, Approval of Class Counsel Fees, Sutts, Strosberg LLP v Atlas Cold Storage Holdings Inc.

The action was commenced because Thomson, through its legal publishing branch known as Carswell, made available court documents authored by the lawyers who constituted the proposed class members. Carswell copies documents from public court files, replicates them on an electronic database and search and retrieval service known as "Litigator", and makes the copies available to subscribers. Documents authored by Mr. Waldman, who is a lawyer, were included in Litigator without his permission.

On October 3, 2013, the appellant and respondent reach an agreement to settle the copyright infringement class action. By order dated March 4, 2014, Perell J. refused to approve the settlement, as well as the retainer agreement and class counsel fees sought as part of that agreement. Perell J. concluded that the proposed settlement was "not fair, reasonable and in the best interests of the Class Members". Both parties appealed that refusal.

Appeal dismissed.

There was a preliminary issue regarding the Court of Appeal's jurisdiction to hear the appeal, pursuant to ss. 6(1)(b) of the Courts of Justice Act ["CJA"]. The issue was whether the order of Perell J. was final, giving the Court of Appeal jurisdiction over the matter, or whether the order was interlocutory, leaving the Court with no jurisdiction and the appeal laying to the Divisional Court with leave, pursuant to ss. 19(1)(b) of the CJA.

Regarding the Court of Appeal's jurisdiction, three separate matters from Perell J.'s order were being appealed: (1) refusal to approve of the settlement agreement; (2) refusal to approve of the fee retainer agreement; and (3) refusal to approve of the class counsel fees sought.

First, the Court disagreed with the appellant's submission that Sutts, Strosberg LLP v Atlas Cold Storage Holdings Inc., 2009 ONCA 690 stands for the proposition that all appeals from orders related to fee retainer agreements and fees lay to the Court of Appeal. That case was different because the motion judge in that case had approved the settlement agreement, but in doing so, had reduced the quantum of class counsel fees. By contrast, in this case, the settlement was not approved and thus there was no finality to the litigation.

Even if the Court of Appeal had jurisdiction to hear the appeal with respect to fees, the Court rejected the appellant's argument that ss. 6(2) of the CJA would give the Court jurisdiction in respect of the entire order. Subsection 6(2) provides: "The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal."

An appeal from an interlocutory order only "lies to the Divisional Court" within the meaning of ss. 6(2) once leave to appeal that order has been granted. If the motion judge's order refusing to approve the settlement agreement was interlocutory, then this court still would not have jurisdiction to hear the appeal from that order under ss. 6(2) unless and until the appellant obtained leave to appeal to the Divisional Court.

Lastly, the Court rejected the appellant's submission, supported by the respondent, that an appeal lay to the Court of Appeal under ss. 6(1)(b) because the order refusing to approve the settlement was a final order of a judge of the Superior Court. The appellant argued that it amounted to a final order because the settlement agreement had been finally dismissed, and therefore the parties' contractual rights and obligations were put to an end. However, as noted by the Court, the cases cited in support of this proposition were not helpful, and more importantly, the argument presumed that to be a final order, an order need only dispose finally of whatever issue was before the motion judge irrespective of whether the order terminates the action or resolves a substantive claim or defence of the parties. To accept this would eliminate the distinction between interlocutory and final orders.

In sum, although the settlement agreement was not approved, the litigation continued, and the parties cannot be said to have lost a substantive right relating to the merits of the litigation. The appeal lies to the Divisional Court with leave.

First Elgin Mills Developments Inc. v. Romandale Farms Limited, 2015 ONCA 54

[Epstein, Lauwers and Pardu JJ.A.]

R. Leigh Youd and Adam J. Wygodny, for the moving parties
John J. Longo and Martin J. Henderson, for the responding party

Keywords: Civil Procedure, Motion for Re-hearing, Sattva Capital Corp. v. Creston Moly Corp., Standard of Review

This was a motion for a re-hearing of an appeal on the basis that the court applied the wrong standard of review and that the interests of justice required a re-hearing. The moving parties alleged that the Supreme Court of Canada's decision in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, released several days before the appeal decision in question was released, altered the applicable standard of review. The appeal in question did not make reference to Sattva. The Court of Appeal applied a standard of correctness. In Sattva the SCC held that contractual interpretation involves issues of mixed fact and law. Rothstein J. left open the possibility of identifying "an extricable question of law from within what was initially characterized as a question of mixed fact and law", including the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor. The moving parties asserted that Sattva required a greater degree of appellate deference to the decision of the application judge than the Court of Appeal showed in its reasons for judgment.

Did the Court of Appeal make an error requiring a re-hearing of the appeal?

Appeal Dismissed.

No. The Court of Appeal will re-open an appeal prior to the entering of the order only in the type of rare circumstance where it is in the interests of justice to withdraw the reasons of the court and re-hear the case on the merits. Something in the nature of overlooked or misapprehended evidence, or failing that, a clear and compelling case in law on the point and the prospect of a very serious injustice absent reconsideration would be required to justify withdrawing the court's reasons and holding a re-hearing. This case did not rise to that threshold. The result in the appeal was not driven by the standard of review and would not have been different under the application of the Sattva test.

Koohestani v. Mahmood, 2015 ONCA 56

[Epstein, van Rensburg and Benotto JJ.A.]

J.S. G. Macdonald, for the appellants
R.D. Elliott and R. Hosseini, for the respondent

Keywords: Shareholder Litigation, Partial Summary Judgment, Sattva Capital Corp. v. Creston Moly Corp., Striking Statement of Defence, Refusal to Grant Leave to Amend to Add Counterclaim, Failure to Pay Costs

The appellants appealed the decisions of two judges in the courts below. The appellants appealed the decision of Roberts J., who allowed the respondent's motion for partial summary judgment and found that the appellants breached a previous interim agreement. The appellants also appealed the decision of Spence J., who struck their statement of defence and dismissed their motion to add a counterclaim.

The case involves a shareholder dispute between the appellants and the respondent, who are the only three shareholders of the respondent limousine business. The appellants and respondent earn income from the business as employees, and the respondent was previously the sole officer and director of the business before the appellants held a shareholder meeting in his absence and removed him from his position. The respondent's underlying action includes claims for damages, breach of fiduciary duty, and misappropriation of profits.

Prior to the litigation that forms the subject of these appeals, the appellants and respondents attended a case conference and reached an interim agreement related to the business. In sum, the interim agreement provided that an audit of the company would occur, the respondent would have fair access to client calls and vehicles of the business, the appellants would not divert business away from the subject corporation, and all parties would act in good faith and in a commercially reasonable manner in executing the terms of the agreement.

The respondent subsequently brought a partial summary judgment motion before Roberts J., who held that the appellants breached the interim agreement and ordered them to pay damages accordingly. In response, the appellants moved to vary the order of Roberts J. and also sought to amend their statement of defence to add a counterclaim. The respondent then moved to strike their statement of defence. Spence J. struck the statement of defence and dismissed the appellants' motion.

(1) Did Roberts J. err in hearing the appellant's motion for partial summary judgment when no proper notice of motion was served?
(2) Roberts J. err in finding breaches of the interim agreement?
(3) Did Spence J. err in striking the statement of defence?
(4) Did Spence J. err in dismissing the appellants' motion to add a counterclaim?

The appeal from the order of Roberts J. was dismissed on both grounds. The appeal was allowed in part in relation to the order of Spence J. striking out the statement of defence. The appeal was dismissed in part with respect to Spence J.'s order dismissing the appellants' request to amend their defence to add a counterclaim, but without prejudice to their being able to move under the appropriate rules for leave to add a counterclaim. The costs award in the matter before Spence J. was reduced to $2,500 in favour of the respondent, given the divided success with the appellants. As the overall outcome favours the respondent, he was awarded costs of the appeal in the amount of $10,000.

(1) No. Roberts J. did not err in hearing the partial motion for summary judgment, even though the respondent failed to plead breach of the interim agreement and failed to serve a notice of motion under rule 37.01 of the Rules of Civil Procedure. Despite the fact that the respondent did not comply with these rules and offered to bring a proper motion at a later date, the appellant was prepared and even insisted on responding to this motion on the same day. Therefore, the appellants arguments that the motion should not have been heard due to a lack of procedural fairness cannot succeed.

(2) No. Roberts J.'s interpretation of the interim agreement was a reasonable one, and her finding that the appellants had breached it on several occasions was supported by the evidence. Specifically, it was reasonable to conclude that an implied term of the agreement was that the business would continue to operate as it had before the litigation commenced. The appellants had breached this implied term by deducting expenses and commissions from the respondent's pay, thereby changing longstanding business practices. Roberts J.'s interpretation of the agreement attracts deference, and her findings should not be interfered with: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53.

(3) Yes. It was open to Spence J. to consider striking the appellants' defence based on their failure to pay the amounts ordered by Roberts J. pursuant to subrules 57.03(2) and 60.12(b) of the Rules of Civil Procedure. However, Spence J. failed to consider any of the relevant principles from the case of Bell ExpressVu Limited Partnership v. Corkery, 2009 ONCA 85 before determining if the statement of defence should have been struck. These principles include the fact that: this remedy is not a remedy of first resort, the defaulting party should be provided with an opportunity to cure the default before its pleadings are struck, the pleading and any evidence relevant to the defence may demonstrate a strong defence such that the interests of justice warrant finding another way to sanction the misconduct. Additional principles that Spence J. failed to consider include the context of the misconduct relied upon, responses proportional to the severity of misconduct, and counsel for the defaulting parties rather than the parties themselves may bear primary responsibility for the misconduct in issue.

The failure of Spence J. to take these factors into account disentitles his decision to the deference it would normally attract, and therefore the order striking the appellant's statement of defence is set aside. Instead, it was ordered that the amounts owing under the order of Roberts J., including costs and post-judgment interest, be paid within 30 days of the release of the Court of Appeal's reasons, failing which the respondent would be entitled to move again to strike out the statement of defence.

(4) No. Since the appellants' statement of defence was reinstated, they now have the right to seek leave in a future proceeding to amend their defence by adding a counterclaim. If the appellants wish to do so, they must have the consent of the other parties to add a counterclaim or obtain leave of the court, as pleadings have closed – subrules 27.07(1) and 26.02 of the Rules of Civil Procedure.

Moore v. Getahun,2015 ONCA 55

[Laskin, Sharpe and Simmons JJ.A.]

J.T. Curry and J.E. Lilles, for the appellant
P.J. Pape and J. Nairn, for the respondent
M. Gourlay and S. Walker, for the intervener Criminal Lawyers' Association
R. Halpern and B. Cameron, for the intervener Ontario Trial Lawyers Association
W.D. Black, J.R. Morse and J.J. Morris, for the intervener The Holland Group
J.A. Olah and S. Libin, for the intervener Canadian Defence Lawyers Association
C. Raphael, for the intervener Canadian Institute of Chartered Business Valuators
L.R. Rothstein and J.C. Killey, for the intervener The Advocates' Society

Keywords: Medical Malpractice; Expert Witnesses; Expert Reports; Rules of Civil Procedure; Rule 53.03; Rule 31.06(3); Evidence Act; s. 52; Hearsay; Res Gestae; Courts of Justice Act; s. 134(6)

This appeal raises significant issues in relation to the preparation and use of expert reports.

Following a motorcycle accident, the respondent (plaintiff) was treated by the appellant (defendant), a recently qualified orthopedic surgeon, for a fracture to his right wrist. The appellant applied a full circumferential cast to the respondent's wrist and forearm. The respondent suffered permanent damage to the muscles in his arm due to compartment syndrome that he alleged was caused by the appellant's negligence in the application of a full cast.

The central issues at trial were whether the appellant had fallen below the standard of care required of him by applying a full circumferential cast on the respondent's wrist and whether the full cast caused the compartment syndrome. Much of the eight-day trial concerned expert evidence.

The respondent obtained an expert report from Dr. Orsini, the orthopedic surgeon who performed the surgery to relieve the compartment syndrome. Dr. Orsini died before the trial. The trial judge ruled that his first report outlining his observations and the facts as to the treatment he provided were admissible pursuant to s. 52 of the Evidence Act, R.S.O. 1990, c. E.23, which permits the admission of a medical practitioner's report with leave of the court. This ruling was not contested at trial or on appeal. The trial judge refused to admit Dr. Orsini's opinions on standard of care and causation, contained in his second report, for the truth of their contents. She did so on the grounds that Dr. Orsini was not available for cross-examination, and the requirement of necessity had not been met since the respondent had another expert who could testify to these issues. However, as other expert witnesses had commented on Dr. Orsini's opinion, the trial judge concluded, at paragraph 21, "that Dr. Orsini's opinions on negligence and causation expressed in his reports are admissible as part of the res gestae and background, but not admitted for their truth."

The respondent also sought to adduce opinion evidence from Dr. Tanzer, the emergency room physician who first saw the respondent and detected the compartment syndrome. Following the Divisional Court's judgment in Westerhof v. Gee Estate, 2013 ONSC 2093, the appeal from which was heard at the same time as this appeal, the trial judge refused to admit Dr. Tanzer's opinion evidence as to the standard of care and causation because he had not prepared a report in compliance with rule 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

The appellant called two expert witnesses. Dr. Ronald Taylor was a retired orthopedic surgeon who had practiced in a community hospital setting for his entire career. During cross-examination, Dr. Taylor indicated that he had sent a draft of one of his reports to the appellant's counsel for review. Dr. Taylor testified that he had produced his final report following an hour and a half conference call with counsel. Although the respondent's counsel did not pursue this issue, the trial judge expressed her concern over the consultation between Dr. Taylor and the appellant's counsel.

The trial judge preferred the evidence of the respondent's expert witness over that of the appellant's expert witnesses and found that the application of the full circumferential cast was a breach of the standard of care and had caused the compartment syndrome to develop. In doing so, the trial judge held that it was improper for the appellant's counsel to assist an expert witness in the preparation of the expert's report.

The second significant legal issue involved the use of the appellant's expert witness reports. The reports were not entered into evidence and the parties proceeded to call viva voce evidence from all expert witnesses. The expert reports were, however, made available to the judge as an aide memoire. In assessing the credibility of the expert witnesses called by the appellant, the trial judge took into account what she perceived to be contradictions between the experts' viva voce evidence and the written reports. The appellant submitted that she erred in doing so.

1) Did the trial judge err in her treatment of the appellant's expert opinion evidence by:

a) Criticizing the appellant's counsel for discussing with an expert witness the content of his draft report?

b) Rejecting aspects of the appellant's expert opinion evidence on account of alleged contradictions between the experts' testimony and the experts' written reports?

2) Did the trial judge err in her application of the doctrine of res gestae?

3) Did the trial judge err in her analysis of causation?

4) Did the trial judge's errors render the trial unfair and cause a substantial wrong or miscarriage of justice?

Appeal dismissed.

1. (a) Yes. The Court of Appeal noted that it is widely accepted that consultation between counsel and expert witnesses in the preparation of Rule 53.03 reports, within certain limits, is necessary to ensure the efficient and orderly presentation of expert evidence and the timely, affordable and just resolution of claims.

First, the Court noted that nowhere in the trial judge's reasons did she explain which changes, made to Dr. Taylor's report following discussion with counsel, were significant. There was no evidence of any significant change to the substance of the report.

The 2010 amendments to Rule 53.03 regarding expert evidence were only intended to clarify, emphasize and codify the duties of expert witnesses that already existed at common law. No additional duties were created by the 2010 amendments.

The independence and objectivity of expert witnesses is fostered under existing law and practice in a number of ways. First, the ethical and professional standards of the legal profession forbid counsel from engaging in practices likely to interfere with the independence and objectivity of expert witnesses. Second, the ethical standards of other professional bodies place an obligation upon their members to be independent and impartial when giving expert evidence. Third, the adversarial process, particularly through cross-examination, provides an effective tool to deal with cases where there is an air of reality to the suggestion that counsel improperly influenced an expert witness. Judges have not shied away from rejecting or limiting the weight to be given to the evidence of an expert witness where there is evidence of a lack of independence or impartiality.

Furthermore, it would be bad policy to disturb the well-established practice of counsel meeting with expert witnesses to review draft reports. Just as lawyers and judges need the input of experts, so too do expert witnesses need the assistance of lawyers in framing their reports in a way that is comprehensible and responsive to the pertinent legal issues in a case.

Consultation is also important to ensure that experts understand their duties to the court under the Rules of Civil Procedure, to avoid increased delay and costs, and to avoid the use of expert witnesses who make a career of testifying in court because they are perceived to be hired guns and are likely to offer partisan opinions and require less guidance and preparation.

The Court then considered the extent to which consultations between counsel and expert witnesses need to be documented and disclosed to an opposing party. Such consultations attract the protection of litigation privilege. Pursuant to Rule 31.06(3), the draft reports of experts the party does not intend to call are privileged and need not be disclosed. However, the Court held that the litigation privilege attaching to expert reports is qualified, and that disclosure may be required in certain situations.

First, if a party intends to call the expert as a witness at trial, the opposite party is entitled on oral discovery to "obtain disclosure of the findings, opinions and conclusions of an expert engaged by or on behalf of the party being examined". Further, the party who intends to call the expert witness is required to disclose the expert's report and other information mandated by Rule 53.03(2.1).

Second, litigation privilege yields where required to meet the ends of justice. The ends of justice do not permit litigation privilege to be used to shield improper conduct. For example, where the party seeking production of draft reports or notes of discussions between counsel and an expert can show reasonable grounds to suspect that counsel communicated with an expert witness in a manner likely to interfere with the expert witness's duties of independence and objectivity, the court can order disclosure of such discussions. However, this requires a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert. Evidence of an hour and a half conference does not meet the threshold of constituting a factual foundation for an allegation of improper influence.

1. (b) Yes. The trial judge's use of the expert reports of Drs. Taylor and Athwal to contract their viva voce evidence was an error of law.

If an expert's report has not been entered into evidence as an exhibit, it has no evidentiary value, even if provided to the trial judge as an aide memoire. Inconsistencies between the viva voce evidence of an expert witness and his or her written report are the proper subject of cross-examination. However, if the expert witness was not cross-examined as to an inconsistency between his or her viva voce evidence and the contents of their report, it is not open to a trial judge to place any weight in assessing the expert's credibility on this perceived inconsistency. This is not a mere technicality but rather a matter of trial fairness.

The expert witness is entitled to be openly confronted with what may appear to be contradictions so that he or she has the opportunity to explain or clarify the apparent inconsistencies.

2. No. The res gestae doctrine operates as an exception to the hearsay rule and allows a court to admit certain utterances for their truth. The res gestae doctrine has no application to the admission of evidence as part of the narrative.

Although the trial judge misused the label "res gestae" in determining the admissibility of Dr. Orsini's opinion on standard of care and causation and Dr. Orsini's statements to the respondent's father commenting adversely on the appellant's treatment of the respondent, the trial judge did not make inappropriate use of hearsay evidence and any error she made did not have an impact on the outcome of the trial. It was a harmless error of nomenclature rather than substance.

3. No. The trial judge reviewed the evidence at considerable length and her reasons demonstrate that she was alive to the issues raised at trial and on appeal. It was not unreasonable for the trial judge to find that the compartment syndrome developed before the cast was removed. Further, there was no error in the trial judge's conclusion that the "crumbling skull" doctrine had no application to the facts of this case.

4. No. Although the trial judge erred, the Court of Appeal determined that these errors did not affect the outcome. Pursuant to s. 134(6) of the Courts of Justice Act, as no substantial wrong or miscarriage of justice flowed from her errors, a new trial would not be justified. Even without her errors, she would necessarily have reached the same result.

Murphy v. Murphy, 2015 ONCA 69

[Justice, Justice and Justice JJ.A.]

Edwin A. Flak and Amit S. Dror, for the appellant
Gary S. Joseph and Ryan M. Kniznik, for the respondent

Keywords: Family Law, Mediation-Arbitration, Retroactive Child Support, Sufficiency of Arbitrator's Reasons, D.B. S v. S.R.G.

The parties to this appeal had been involved in expensive, acrimonious and protracted family law litigation. They referred all matters to mediation-arbitration. Consequently, there was an appeal and a cross-appeal to the Superior Court of Justice. The appeal judge dealt with all the issues. Both parties then sought leave to appeal to the Court of Appeal. Leave was granted to the appellant on one issue only: the arbitrator's award of retroactive child support which had been overturned by the appeal judge.

Did the appeal judge err in overturning the arbitrator's award of retroactive child support?

Appeal Allowed

The appeal judge erred in law in two ways. First, he applied the wrong test to the sufficiency of the arbitrator's reasons. He cited criminal cases without regard to the goals of efficiency and expediency in the arbitration context. Furthermore, Hickey v. Hickey [1999] 2 S.C.R. 518 provides that significant deference must be given in relation to the determination of support orders. This principle recognizes that the discretion in making the order is best exercised by the person who heard the parties directly. This is of particular significance when the parties select an arbitrator well known and respected for his expertise in family law. In any event, arbitrator's reasons, although brief, explained how he calculated the award and why he made it.

The second error of the appeal judge was to determine as a matter of law that D.B. S v. S.R.G. [2006] S.C.C. 37 applied to the circumstances here, and having made that determination, to disallow the award without performing the analysis himself or referring the matter back to the arbitrator for the analysis.  On this basis the Court referred the issue of retroactive child support back to the arbitrator for reconsideration.

It is of note that at the hearing of the appeal, the Court did not permit the respondent to make submissions based on his wilful and deliberate misconduct, which included failure to disclose income tax returns.

Philip Services Corp. v. Deloitte & Touche, 2015 ONCA 60 

[Hoy A.C.J.O., Simmons and Tulloch JJ.A.]

T. Dunne and J. Callaghan, for the appellants
R. C. Heintzman, M. Schafler and M. Evans, for the respondents
P. F. Farley and B. Bellmore, for the Institute of Chartered Accountants of Ontario

Keywords: Civil litigation, Rule 30.10(1) and (3) of the Rules of Civil Procedure, Wigmore Test, Privilege

The appellants are the representative plaintiffs in a billion-dollar class action involving allegations that the respondent, Deloitte and Touche ("Deloitte"), was negligent in preparing 1995 and 1996 annual statements of Philip Services Corp ("Philip"), a public company. In 1998, roughly 2 years before the appellants commenced their action, the Institute of Chartered Accountants of Ontario (the "Institute") began an investigation into Deloitte's audits of Philip for 1995 and 1996. In 2007, the Institute brought charges against Noel Woodsford, a senior partner at Deloitte responsible for audits. In 2008, Mr. Woodsford was found guilty of professional misconduct.

In 2014, the appellants sought an order under rule 30.10 (1) of the Rules of Professional Conduct requiring the Institute (a non-party to the litigation) to produce documentation concerning the Institute's investigation and discipline of Mr. Woodsford. The motion judge concluded that it would not be unfair for the appellants to proceed to trial without having discovery of the material sought and that, in any event, the materials did not have to be produced because they were subject to a Wigmore case-by-case privilege.

(1) Did the motion judge err in concluding that it would not be unfair for the appellants to proceed to trial without the discovery of documents?

(2) Did the earlier decision of the Court in Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2014 ONCA 89 (the "Prior Decision") finally determine that material relating to the discipline proceedings against Mr. Woodsford was admissible – and not privileged?

(3) If the issue of privilege was not resolved by the Prior Decision, did the motion judge err in finding that the documents were privileged by case-by-case privilege? and

(4) Did the motion judge err in making his findings without inspecting the documents at issue?

Appeal dismissed.

As per the requirements of rule 30.10, the appellants were required to establish that the material at issue was not privileged and that it would be unfair to require them to proceed to trial without having discovery of the material.  While the Court agreed with the appellant that the motion judge erred in finding the subject documents privileged on a case-by-case basis, there was no basis to interfere with the decision since it would not be unfair to proceed to trial without discovery of those documents.

(1) No.  Rule 30.10(1) is discretionary. The determination of the motion judge (who is also the case management judge for the class proceeding) was fact specific, and was therefore entitled to deference.  Rule 30.10 assumes that it is not per se unfair to require a party to go to trial without the forced production of relevant documents in the possession of third parties. Therefore, there was no basis to interfere with the motion judge's conclusion that the appellants had failed to overcome this perception.

(2) No. The Court was not persuaded by the appellant's argument that the Prior Decision foreclosed an argument that the material was privileged based on a case-by-case privilege.

(3) Yes.  The motion judge correctly articulated the appropriate test for determining a case-by-case privilege; however, his conclusion based on the application of the test could not stand. The Court set out the four elements in the Wigmore criteria. The Court held that the motion judge's conclusion that the Wigmore criteria were established in this case resulted from a reversible error.

The Court found that the communications between Mr. Woodsford and the Institute could not have originated in confidence that they would not be disclosed after charges were laid, and after Mr. Woodsford would, in the normal course, be in possession of the materials and could himself be compelled to disclose them. The Court found that the first element of the Wigmore test was not made out, and that motion judge's palpable and overriding error in relation to the first element tainted the balance of the Wigmore analysis.

For the second element of the Wigmore test, the motion judge rejected the appellants' argument that where (as here) a member was compelled to cooperate with a regulator, and the governing statute did not provide assurances as to confidentiality, confidentiality was not "essential to the full and satisfactory maintenance of the relation between parties". However, not providing disclosure to the member charged and entering into a "unique" agreement were contrary to the Institute's normal practices and not consistent with its policy. After the charges were laid, but for a tactical ploy, Mr. Woodsford would have had possession of the materials, and could have been compelled to disclose them. Further, those materials would have been made public through the discipline process. Therefore, after the charges were laid, confidentiality was not essential to the full and satisfactory maintenance of the relationship between the Institute and Mr. Woodsford. The Institute's claim for case-by-case privilege therefore failed.

(4) No.  Rule 30.10(3) is discretionary. The motion judge did not have to inspect the documents. In this case, the motion judge is also the case management judge for the class proceeding. He clearly understood the nature and significance of the documents at issue; therefore, his decision not to inspect the documents was entitled to deference.

Bank of Montreal v. Reckless,2015 ONCA 62 

[Hoy A.C.J.O., van Rensburg and Brown JJ.A.]

B. Reckless, acting in person
M. T. Collis, for the respondent

Keywords:   Action to Recover Debt, Summary Judgment, Self-Represented Litigants

The appellant appeals from an order granting summary judgment in favour of the respondent the Bank of Montreal ("BMO") in the amount of $44,178.26, and which dismissed the appellant's counterclaim against BMO, in which he had sought damages of $261,472.

In his brief oral reasons, the motion judge found that BMO was entitled to repayment of the credit card debt owed to it by the appellant.

The motion judge also found that the appellant had not raised any issue requiring a trial in respect of the issues of estoppel or accord and satisfaction asserted by the appellant against BMO by way of defence and by way of counterclaim.

Appeal dismissed.

Ample evidence supported those findings made by the motion judge. BMO filed evidence that established the existence and amount of the appellant's credit card debt.

The motion judge was correct in concluding that the appellant could not attempt to dictate unilaterally the terms and conditions upon which he would repay his credit card debt. The documents entitled "Accord and Satisfaction" sent by the appellant to BMO, and BMO's subsequent acceptance of payment made by the appellant did not have the legal effect of altering the debt owing.

With respect to procedure, the Court concluded that the appellant, who was self-represented, was not entitled to cross-examine the deponent of BMO at the motion in the absence of a notice of examination.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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