As part two of my earlier blog on the issue of expert witnesses at trial, Bruff-Murphy v. Gunawardena, 2017 ONCA 502, is a great read for the Court of Appeal’s view on the role of the trial judge during expert testimony.
In the introduction alone, Justice Hourigan was clear that “gone are the days when an expert served as a hired gun or advocate” (para. 1) and that it is the trial judge’s role to act as a gatekeeper so that the expert opinion evidence before the court is “fair, objective and non-partisan” (para. 2).
While my earlier blog focused on the legal test during the qualification stage, Justice Hourigan was also clear that the trial judge does not become functus the moment an expert witness is permitted to give expert opinion evidence. Rather,
“The trial judge must continue to exercise her gatekeeper function. After all, the concerns about the impact of a non-independent expert witness on the jury have not been eliminated. To the contrary, they have come to fruition. At that stage, when the trial judge recognizes the acute risk to trial fairness, she must take action” (para. 63).”
In this case, Justice Hourigan commented that there were various options available to the trial judge after the qualification stage, which trial counsel should also be aware of as suggestions in their toolkit. To quote Justice Hourigan at paragraphs 67 and 68 of this decision,
 Given this ongoing gatekeeper discretion, the question remains of what, as a practical matter, the trial judge could or should have done in this case. His first option would have been to advise counsel that he was going to give either a mid-trial or final instruction that Dr. Bail’s testimony would be excluded in whole or in part from the evidence. Had he taken that route, he would have received submissions from counsel in the absence of the jury and proceeded as he saw fit. Alternately, he could have asked for submissions from counsel on a mistrial, again in the absence of the jury, and ruled accordingly. In the event that he had to interrupt Dr. Bail’s testimony mid-trial, he would have had to consider carefully how best to minimize the potential prejudicial effect of the interruption from the respondent’s perspective.
 The point is that the trial judge was not powerless and should have taken action. The dangers of admitting expert evidence suggest a need for a trial judge to exercise prudence in excluding the testimony of an expert who lacks impartiality before those dangers manifest.
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Taking the risk to litigate through to a trial is a decision that should be made after long and earnest consideration. It is a gamble, no matter the strength of your case. The stakes and the pressure are high, which is why receiving a decision denying your claim can be crushing, both emotionally and financially. Moreover, the question of costs must be faced.
In Driscoll v Driscoll, the Court addresses costs in a set of unfortunate circumstances. The facts in brief are that Shirley Driscoll died leaving one son, five daughters and the children of two other daughters that had predeceased. Ms. Driscoll’s Will, made several years prior, gifted everything to her son. Three of the daughters objected to the validity of the Will. Offers were exchanged, but no settlement was reached.
At trial Rutherford J. found that Ms. Driscoll had the requisite testamentary capacity to make the Will. However, His Honour admittedly reached that conclusion with some difficulty, in view of the evidence of Ms. Driscoll’s cognitive deficits and because the effect of the Will was unfair to the daughters.
The son sought costs as against his sisters (approx. $150,000). The sisters argued that they acted reasonably throughout the litigation, had a reliable body of evidence in support of their position, and were of modest means and should not be defeated by the award sought by their brother. They asked for their disbursement costs plus their costs of a motion brought within the litigation (approx. $50,000), to be paid out of the estate, with the parties otherwise bearing their own costs.
Rutherford J. considered the two public policy considerations laid down in McDougald Estate v. Gooderham meriting costs being paid out of the estate, being (1) where difficulties or ambiguities that give rise to litigation are caused, in whole or in part, by the testator, and (2) the need to ensure that estates are properly administered.
His Honour determined that the first consideration was triggered by Ms. Driscoll not gifting anything to her seven daughters and, more concretely, the second consideration was triggered by the strength of the case against testamentary capacity. Accordingly, His Honour exercised his discretion to grant the relief sought by the sisters, and awarded the brother full indemnity costs out of the estate as well.
This must have been an important victory for the sisters in an otherwise unsuccessful outcome, and should serve as a sobering reminder for litigants that winning doesn’t guarantee costs recovery against the opposing side.
Thanks for reading and have a great long-weekend. Happy 150th birthday Canada!
Other blog posts that may be of interest:
Significant changes to Rule 48 of the Rules of Civil Procedure, specifically with regard to administrative dismissals, came into force on January 1, 2015. The ramifications of those changes will become of critical importance, especially in the coming months.
Under the old Rule 48.14 and Rule 48.15 (both of which were revoked), actions were dismissed because they were not set down for trial 2 years after a Statement of Defence was filed or because a Statement of Defence was not filed in time. However, prior to an administrative dismissal, lawyers were given the opportunity to rescue cases, as they received a notice from the court to attend a status hearing.
The new Rule 48.14 (Rule 48.15 was not replaced) states that actions must be set down for trial within 5 years of being commenced, and any actions commenced before January 1, 2012 will be automatically dismissed on January 1, 2017. Furthermore, any actions struck from the trial list must be restored within 2 years of being struck [Rule 48.14(1)].
Under the new rule, it is possible to get an extension and obtain an extra 2 years – if a party files a timetable and draft order at least 30 days prior to the dismissal deadline. If the parties do not consent to a timetable, one party can bring a motion for a status hearing before the dismissal deadline.
Given that the court will no longer provide notice of an administrative dismissal, lawyers will have to be diligent in reviewing their files to ensure that any actions commenced prior to January 1, 2012 are not automatically dismissed on January 1, 2017. And given that a timetable and draft order must be submitted 30 days prior, lawyers should begin conversations now in order to meet the deadline of December 2, 2016. Furthermore, lawyers will need to make sure their tickler system is updated to include the new time limits for actions commenced after January 1, 2012. Finally, a Statement of Claim (Form 14A) and a Notice of Action (Form 14C) must now contain the following wording: “TAKE NOTICE: THIS ACTION WILL AUTOMATICALLY BE DISMISSED if it has not been set down for trial or terminated by any means within five years after the action was commenced unless otherwise ordered by the court.”
While the new Rule 48.14 provides potential pitfalls for lawyers, it is a good opportunity to update file procedure systems and a welcome reminder of the need to proactively manage client files.
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As a part two of my blog from Tuesday, the Superior Court recently released a decision on the issue of disclosure for surveillance evidence.
The litigation in Bishop-Gittens v. Lim also arose from a motor-vehicle accident. In this particular case, the Plaintiff brought a motion, prior to opening submissions at trial, to exclude surveillance evidence that had been gathered by the Defendant. The issue before the Court was whether the Defendant should be allowed to rely on the surveillance and video footage for impeachment purposes under the following set of circumstances:
- there was no reference to surveillance in the Defendant’s affidavit of documents, as none had been conducted at that time;
- during the examination for discovery, the Defendant advised the Plaintiff that no surveillance had taken place;
- surveillance was conducted one month after the Defendant’s examination for discovery and over various days two years after the initial surveillance;
- the Defendant did not deliver a revised affidavit of documents in advance of trial; and
- there was no disclosure of the surveillance evidence until a letter disclosing the particulars of the surveillance, without a copy of the surveillance evidence itself, was delivered to the Plaintiff less than one month before trial.
Justice McKelvey concluded that the Defendant was in breach of the Rules, and
“In light of the defence’s failure to disclose the surveillance information in a prompt manner, it is apparent that this evidence may not be referred to during the trial unless leave is given by this court. The test for leave in connection with both a failure to disclose a document under rule 30.08 and the failure to correct an answer on discovery under rule 31.09 is governed by rule 53.08. This rule provides that where evidence is admissible only with leave of the trial judge, “leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial.”
The case law makes it clear that, in considering whether leave should be granted under rule 53.08, a trial judge must grant leave unless to do so will cause prejudice that cannot be overcome by an adjournment or costs. See Marchand (Litigation Guardian of) v. The Public General Hospital Society of Chatham (2000), 2000 CanLII 16946 (ON CA), 51 OR (3d) 97 (ON CA). As noted in the Iannarella decision, this mandatory orientation is understandable, since relevant evidence, including surveillance, is ordinarily admissible.”
Ultimately, Justice McKelvey allowed the Defendant to rely on the surveillance evidence only for the purposes of impeachment. The present circumstances before Court was distinguished with Iannarella because the trial not yet begun and neither party had taken any steps at trial which could result in prejudice by not knowing that this evidence may be introduced.
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Earlier this year, the Ontario Court of Appeal released a lengthy decision in respect of a party’s obligation to disclose surveillance evidence throughout the litigation process if one intends to rely on such evidence at trial.
The factual background of Iannarella v. Corbett arose from a personal injury claim relating to a rear-end collision that occurred on a snowy winter evening. The Plaintiff claims that he suffered a rotator cuff injury to his left shoulder when the Defendant failed to stop in time before he collided with the Plaintiff’s vehicle. According to the Defendant’s testimony,
“there was nothing further he could have done to avoid the collision and repeatedly said that the accident was caused by “mother nature”. He told Mr. Iannarella at the scene: “Sorry, but I don’t control mother nature.”
While the Defendant may not be in control of mother nature, he was in control of his conduct throughout the proceedings.
In defence of the Plaintiff’s claims for damages, the Defendant retained private investigators to conduct surveillance on the Plaintiff over various time periods between 2009 and 2012. As the result, 130 hours of surveillance was recorded after the accident on February 19, 2012. However, the existence of the surveillance was not disclosed to the Plaintiff in an affidavit of documents nor were its particulars made known to him.
At trial, the Defendant sought to use the surveillance footage as evidence of the functionality of the Plaintiff’s left arm after the accident. Ultimately, the Court of Appeal found that the use of surveillance evidence at trial to be improper as “a form of trial by ambush”. The Court of Appeal was adamant that the disclosure obligations required by the Rules of Civil Procedure must be followed to ensure fairness and prompt settlement discussions.
In essence, as a general rule of thumb, a party may not rely on surveillance evidence if it is not disclosed through an affidavit of documents. Disclosure must be made either in full or as a privileged document, depending on whether the evidence is relied upon substantively or for impeachment purposes.
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Today’s blog is the last in my series this week addressing certain aspects of preparation for trial in a contested passing of accounts. The items discussed this week were certainly not meant to be, nor were they, exhaustive. Preparation necessary for a hearing/trial with narrow issues, few documents, few evidentiary concerns and an uncomplicated Estate will obviously be different than a case with numerous issues, voluminous documents, evidentiary issues and a complicated administration. The critical aspect of trial preparation is that it begins at the beginning of a case; not literally, but certainly in the sense of being mindful at pre-trial stages of the evidentiary considerations and how the evidence is to be marshalled and presented.
Listen to Taking Evidence Before Trial
This week on Hull on Estates Bianca La Neve and Natalia Angelini discuss taking evidence before trial. They talk about the procedure for witnesses who may not be available at trial, which involves preserving their evidence beforehand so it is available prior to the trial.
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listen to The Ontario Civil Justice Reform Project
This week on Hull on Estates, Chris and Justin discuss the Ontario Civil Justice Reform Project and the steps being taken by Mr. Justice Colter Osbourne and Attorney General Michael Bryant.
Today’s blog is the last in my series addressing preparation for trial in a contested passing. The items discussed this week were certainly not meant to be, nor were they, exhaustive. Preparation necessary for a trial with narrow issues, few documents, few evidentiary concerns and an uncomplicated Estate will obviously be different than a case with numerous issues, voluminous documents, evidentiary issues and a complicated administration. The critical aspect of trial preparation is that it begins at the beginning of a case; not literally, but certainly in the sense of being mindful at pre-trial stages of the evidentiary considerations and how the evidence is to be marshalled and presented.