COURT OF APPEAL FOR ONTARIO

DATE: 2026-02-19

DOCKET: COA-23-CV-0840

Sossin, Favreau & Wilson JJ.A.

BETWEEN

Janet Pederson Plaintiff (Appellant)

and

Michel Forget and Annie Forget aka Annie Chrétien Defendants (Respondents)

Joseph Y. Obagi and Elizabeth A. Quigley, for the appellant

Stephen Cavanagh and Matthew Taft, for the respondents

Heard: August 26, 2025

On appeal from the judgment of Justice Marc Smith of the Superior Court of Justice, sitting with a jury, dated June 30, 2023.

Wilson J.A.:

A. Overview

[1] The appellant, Janet Pederson, suffered injuries when she slipped on the stairs at the home owned by the respondents Michel and Annie Forget on March 25, 2015. Pederson sued the Forgets in negligence, claiming damages for personal injuries, past and future loss of income, and future care costs. The action proceeded to trial with a jury. The issue of liability was hotly contested.

[2] Pederson alleged that the top step of the wooden staircase was extremely slippery: when she stepped onto it with her left foot, she immediately slipped and fell down the stairs. The Forgets denied any negligence and asserted that the stairs in their home were in a reasonably safe condition at the time and Pederson's fall was not a result of any problem with the stairs.

[3] Each side called expert engineering evidence concerning the slip resistance on the stairs after the application of various cleaning products. Pederson called the expert engineer Gord Jenish ("Jenish") and the Forgets called the expert engineer Andrew Huntley ("Huntley").

[4] The trial judge determined that Jenish could not testify regarding the results and conclusions set out in his first report dated June 26, 2020, but he was permitted to testify about his testing and the results contained in his other three reports.

[5] The jury returned a verdict in favour of the defendants, finding that they were not satisfied on the evidence that the defendants were negligent. The action was dismissed and Pederson appeals. Pederson does not assert that the charge to the jury was in any way deficient. However, she argues that the trial judge erred in excluding the first set of testing done by Jenish and that this resulted in a miscarriage of justice, primarily because the jury was left with an incorrect impression about Jenish's evidence. She asks that a new trial be ordered on the issue of liability.

B. Factual Background

[6] Pederson was an insurance adjuster. She attended at the home of the Forgets in order to obtain a statement. Once inside the house, she removed her shoes and ascended the wooden stairs. She secured the statement and went to the top of the stairs in order to descend them and leave. After placing her foot on the top step, she fell down the stairs, landing on her back. The versions of what was said after the fall were hotly contested at trial.

[7] Pederson testified that when she stepped onto the top stair, it felt like a piece of ice and her foot slipped immediately and she fell down the stairs. She asked the Forgets why their stairs were so slippery and she testified that Mr. and Ms. Forget spoke to each other in French. Pederson understood enough French that she heard Ms. Forget say to her husband that the cleaning lady had been there the day before and had applied Pledge to the stairs. Pederson then asked the Forgets to explain in English and she testified Mr. Forget responded that the cleaning lady had been there the day prior and had put Pledge on the stairs.

[8] Mr. Forget testified that he and his wife spoke in French about Pederson's fall and how she was doing, not about the cleaning of the stairs. Ms. Forget denied making the statement as alleged and she testified that they did not employ a cleaning lady. The stairs were always cleaned with Vim, a product intended for cleaning wooden floors and stairs. She denied that Pledge was ever used on the stairs. Ms. Forget testified that she had cleaned the stairs on March 23, 2015, 2 days prior to the fall. The Forgets testified that the stairs were not slippery or unsafe for use, as they have small children.

[9] Each expert conducted slip resistance testing. Jenish prepared four engineering reports: June 26, 2020; March 23, 2021; May 31, 2021; and April 6, 2023. The last report dealt with matters other than the slip testing. In his first test, Jenish used the hardwood landing on the stairs in his own home. He tested it in five conditions: dry; wet from tap water; after application of Pledge Clean, a hardwood floor cleaner; after application of Pledge Beautify, a furniture spray; and after application of Vim, a wood floor cleaner. He measured the slip resistance before and after the application of the cleaning products.

[10] For his second test, he attended at the Forget home, along with Huntley, the expert retained by the respondents, and each of them applied the various cleaning products on the stairs and tested the slip resistance. They left the house and returned the following day to do the measurements for the slip testing.

[11] In his third report, Jenish did another slip resistance test using the Pledge Beautify because of the unusual results from the test at the Forget home the previous day. He performed the test on the stairs at his own home using Pledge Beautify and he tested after 24 hours and then again after 48 hours.

[12] The Forgets opposed Jenish being qualified as an expert to provide evidence about the slip resistance of surfaces. They argued that he did not possess the necessary qualifications in the field of slip resistance and, furthermore, that he was biased in favour of Pederson. After the two-day voir dire, the trial judge issued a ruling in which he determined that Jenish had the necessary expertise to be qualified as an expert, and he rejected the submission that he was biased. The trial judge applied the two-step test set out in *White Burgess Langille Inman v. Abbott and Haliburton Co.*, 2015 SCC 23, [2015] 2 S.C.R. 182. Under the first step, the trial judge decided that Jenish's evidence met the threshold requirements for admissibility. Under the second part of the test, in which he exercised the gatekeeping function, the trial judge found that the results of the first testing done in 2020 were not reliable for several reasons arising from differences between the test he performed and the actual evidence concerning the stairs in the respondents' home. The trial judge concluded there were too many conditions in the test that differed from the actual circumstances of the incident, rendering the test results unreliable. He found that the probative value of the first testing was not strong and ruled that Jenish could not refer to his first testing during his evidence.

C. Issues on Appeal

[13] Pederson submits that the trial judge erred in excluding the first set of testing done by Jenish and that this resulted in a miscarriage of justice requiring a new trial.

[14] I do not agree the trial judge made the alleged error. Even if he erred in excluding Jenish's first testing, this did not result in a miscarriage of justice. I would therefore dismiss the appeal.

D. Analysis

1. The trial judge did not err in excluding the first testing done by Jenish

[15] Pederson asserts that the trial judge failed to properly follow the test for admission of expert evidence pursuant to White Burgess, resulting in an error in law in his ruling that Jenish could not refer to the 2020 testing in his evidence. I do not accept this submission.

[16] The Forgets objected to Jenish being qualified as an expert; they argued he did not possess the requisite qualifications and, furthermore, he was unable to fulfil the role of an expert because he was biased in favour of Pederson. As a result, the trial judge properly undertook a two-day voir dire. The proposed expert was subject to questions about his reports and cross-examination on his background and on his opinions. Following the completion of the voir dire, the trial judge ruled that Jenish was qualified to give expert opinion evidence in the area of the calculation of coefficient of friction and the investigation of slip resistance of surfaces. However, he ruled that Jenish could not give evidence arising from the results of the first slip resistance testing he did in June 2020. He was permitted to testify about the testing as set out in his other three reports.

[17] In his ruling, the trial judge exercised his role as gatekeeper of the evidence. White Burgess sets out the two-part test for the admission of expert opinion evidence. The first step involves a consideration of the threshold requirements for admissibility: relevance; necessity; the absence of an exclusionary rule; and a properly qualified expert. If the threshold test is satisfied, the judge must exercise the gatekeeping role and balance the risks and benefits of allowing the expert evidence to be heard.

[18] The trial judge easily found that Jenish's proposed evidence was relevant and that it was necessary to enable the jury to determine the question of whether the use of a cleaning product on the stairs rendered them hazardous. As he noted, the evidence was technical, and the jury needed assistance to understand it. The trial judge determined that Jenish was properly qualified and would offer a non-partisan opinion. Finally, the trial judge found the expert opinion of Jenish to be reliable. The threshold requirements were met.

[19] The judge then turned to a consideration of whether the benefits of admitting the evidence were outweighed by the risks. He found the probative value of the evidence to be high, stating that it would "benefit the trial process." However, the judge found that there was "one area of risk": the testing that was done by Jenish in 2020 was not reliable. The trial judge made this finding for a number of reasons: Jenish tested on a hardwood landing, not on stairs; he used a different dilution of Vim than that used by Ms. Forget; he waited only 30 minutes before retesting when Ms. Forget testified the stairs had been cleaned 2 days prior to the fall; and he did not conduct the testing using a nylon stocking or ladies' dress sock, which is what Pederson was wearing at the time of her fall. The trial judge considered the testing done by Jenish in January 2020 and stated: "there are too many differing factors from the circumstances of the incident that would render the 2020 results reliable, and therefore, I see little probative value." The test results from the June 2020 testing as set out in Jenish's first report were therefore excluded from the evidence.

[20] In my view, the trial judge's conduct of the voir dire as well as his analysis and application of the test for admission of expert evidence reveal no error. It is the role of the trial judge to ensure that the task of the jury is as straightforward as possible. Here, the experts were assisting the jury to decide the question of the slipperiness of the stairs after the application of cleaning products.

[21] Much has been written about the dangers of expert evidence, particularly in the context of jury trials. As this court observed in *R. v. Abbey*, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 90, finders of fact and juries in particular may be more prone to accepting the opinion of experts who have an impressive curriculum vitae and speak from a position of authority: "There is a risk that a jury faced with a well presented firm opinion may abdicate its fact-finding role on the understandable assumption that a person labelled as an expert by the trial judge knows more about his or her area of expertise than do the individual members of the jury."

[22] It is the responsibility of the trial judge to not only determine if the proposed expert ought to be qualified to give evidence pursuant to Rule 53.03 of the Rules of Civil Procedure but also to be vigilant that as the expert testifies, he or she does so within the confines of their qualifications, what is contained in their written report, and what is properly the subject of their expert opinion. For example, an expert ought not to comment on the credibility of parties or on the credibility of the testimony of other witnesses; that is the province of the finders of fact: *Parliament v. Conley*, 2021 ONCA 261, at para. 44. If a qualified expert becomes an advocate during the course of testimony or demonstrates a lack of impartiality, the trial judge must be alive to and deal with these issues because a failure to take action may compromise trial fairness: *Bruff-Murphy v. Gunawardena*, 2017 ONCA 502, 138 O.R. (3d) 584, at para. 6.

[23] The trial judge made no error in his analysis of the admissibility of the Jenish expert evidence. He followed the test as articulated in White Burgess and, in his discretion, he determined that the risks of admitting the first testing outweighed the benefits because a number of the factors that were used in the testing were not the same as those that existed at the time of Pederson's fall.

[24] Pederson submits that the trial judge failed to consider the effect of precluding Jenish from testifying about his first test results and how they supported the allegation that tampering occurred. There is no merit to this submission. The trial judge was not obligated to address the alleged tampering argument in his determination of whether Jenish ought to be qualified as an expert or in his determination of the ambit of his expert evidence. The issue of possible tampering was a factual determination to be made and was distinct from the qualification of Jenish as an expert. His ruling was a discretionary decision which is entitled to deference absent an error of law: *Abbey*, at para. 97; *R. v. D. (D.)*, 2000 SCC 43, [2000] 2 S.C.R. 275, at para. 13. It is not the role of this court to re-weigh the evidence.

2. The miscarriage of justice issue

[25] As I have stated, I find no error in the trial judge's decision to exclude Jenish's first expert report. However, even if the report was improperly excluded, there was no resulting miscarriage of justice, and a new trial would not be warranted. Where evidence has been improperly excluded, the question is whether the excluded evidence would "have made a difference to the outcome," so that its exclusion caused a miscarriage of justice: Nemchin, at para. 72. This is a contextual assessment, requiring consideration of the entire record: Nemchin, at para. 71, *Brisco Estate v. Canadian Premier Life Insurance Co.*, 2012 ONCA 854, 113 O.R. (3d) 161, at para. 71.

[26] The appellant argues that the exclusion of the first expert report had far-reaching implications which resulted in a miscarriage of justice. This assertion is based on Jenish's finding in his second round of testing that the stairs at the Forget home were actually less slippery following the application of the Pledge Beautify, an oily product. He found that this result didn't make sense and concluded that there was testing interference, presumably by Mr. and/or Ms. Forget. However, because Jenish was not permitted to discuss the results of his 2020 testing, Pederson asserts that the tampering issue and its potential effect on the credibility of the Forgets could not be made at trial. As a result, Pederson submits that the jury was left with an incorrect impression of the evidence and this resulted in trial unfairness. I do not accept these submissions.

[27] A critical issue at trial was the credibility of the parties. To decide the first question of whether the Forgets were negligent, the jury had to determine which parties' evidence it accepted about the cleaning of the stairs. This was clear from the jury instruction, where the judge quoted Pederson's counsel: "This is a case of he said/she said. Either Janet Pederson is telling the truth and [the Forgets] are not, or vice versa. There is no in-between."

[28] Pederson's testimony was that, after the fall, Ms. Forget stated in French that Pledge had been applied to the floors. Ms. Forget denied making this statement and testified that she used Vim.

[29] The jury had to determine if the state of the stairs breached the *Occupiers Liability Act*, R.S.O. 1990 c. O.2, rendering the Forgets negligent. If the jury accepted Pederson's evidence, it could conclude that the Forget's cleaning lady had applied a Pledge product to the stairs the day before, making them slippery. If so, the expert evidence was relevant to determine whether the use of Pledge generally rendered floors so slippery as to be unreasonable under the Act.

[30] On the other hand, if the jury accepted the testimony of the Forgets, finding that Vim, a product designed to clean wood floors, was used, the expert evidence on the slip resistance of Pledge was not important. As noted in the jury instruction and the closing statement of Pederson's counsel, there was "no in-between" in this case. Under the *Occupiers' Liability Act*, it was open to the jury to find that the Forgets met the standard of a reasonable homeowner by using a cleaning product that was meant for wooden stairs, without resort to the expert evidence.

[31] There was ample evidence outside of the expert evidence upon which the jury could have concluded that the stairs were reasonably safe for use at the time of Pederson's fall. When Pederson descended the stairs, she described their condition as "like...stepping on clear ice". Yet, she had ascended the stairs to meet with Mr. Forget and obtain his statement and did not find the stairs to be slippery.

[32] If the jury rejected Pederson's evidence and found instead that Ms. Forget had used an appropriate product to clean the stairs and accepted her evidence that the stairs had never been slippery, they could have decided the liability issue on the basis of the credibility of the parties, without resorting to the expert evidence.

[33] In any event, the evidence excluded by the trial judge did not prevent Pederson from advancing the theory that the stairs in the Forget house were interfered with during the testing period. It is important to note that there was no actual evidence of tampering with the stairs; it was, at its highest, speculation. Notwithstanding the trial judge's ruling that Jenish could not discuss the results from his 2020 report, the issue of possible tampering was a live one, advanced by Pederson at trial.

[34] Pederson called no direct evidence to support the allegation of tampering. Jenish was nevertheless able to testify about the illogical results from the testing in the Forget home since it was captured in his other reports.

[35] Mr. Jenish commented on the results after the application of Beautify in his examination-in-chief:

Well, I found it quite surprising that the furniture polish would actually increase the slip resistance given the nature of that product, that it seemed to leave a somewhat oily residue on the surface. So intuitively, I would have expected that it would have decreased the slip resistance, not raising it.

[36] In cross-examination, he was specifically asked about his position regarding tampering:

Q. That's what I want to get clear on. You think that the test surface on which the Pledge Beautify, which is the furniture polish, was applied was interfered with.

A. That was my conclusion, yes.

Q. And your conclusion was -- I don't think you used the word tampering, I think you used the word interfering, but you believed that the stair that had had Pledge Beautify, namely the furniture polish applied to it, had been interfered with?

A. I believe so based on the measurements that I made on that stair?

Q. So tell me how you think the Forget interfered with your tests?

A. Well, I can't say it was the Forget -- it was the Forgets, I simply found that that test result was illogical and unexpected given the nature of that product. And that was the reasoning behind the subsequent test in a controlled environment, it showed that the Pledge furniture polish significantly reduced the available slip resistance.

[37] Ms. Forget was asked about the interference in cross-examination:

Q: And you deny that you or your husband, or anybody else interfered with that testing?

A: We did not interfere with the tests.

[38] In his closing submissions to the jury on this point, Pederson's counsel referred to Mr. Jenish's testimony, which was that he believed there was interference but did not directly accuse the Forgets of such interference.

[39] The jury charge squarely addresses the question of interference, at paras. 134-35:

On the issue of the plaintiff's allegation that the Pledge Beautify application to the stairs was interfered with, if it is shown that the evidence has been intentionally interfered with, then a rebuttable presumption of fact arises that the evidence would tell against the party interfering with the evidence. But it does not occur merely because evidence has been interfered with. Again, it only occurs when a party has intentionally interfered with the evidence relevant to ongoing or contemplated litigation in circumstances where a reasonable inference can be drawn that the evidence was interfered with to affect the litigation. In order to draw any inferences against the Forgets regarding the alleged interference, you must find, based on the evidence before you, that it has been shown that there was intentional interference with the testing by the Forgets. If you are unable to find that there was interference, then it is not possible to draw an inference against the Forgets. If you find that there was interference but that it was not intentional, then it is not possible to draw an inference against the Forgets.

Regardless of whether you find intentional interference, the evidence of Mr. Jenish in regards to his finding of illogical results can be used to determine reliability and validity of the testing at the Forget's home.

[40] Contrary to Pederson's submissions, the jury was aware that Jenish was suspicious that the stairs had been interfered with during the testing. Jenish spoke about it during his evidence. Furthermore, Ms. Forget was cross examined on it, counsel referred to it during his closing address, and the judge charged the jury on it.

[41] Pederson's theory was that products had been applied to the stairs that rendered them slippery, constituting a breach of the duty under the *Occupiers' Liability Act*. This theory was the subject of expert evidence. The suggestion of tampering was made during the trial, and the jury was aware of Pederson's position concerning possible tampering. The excluded testing of Jenish did not independently affect the theory of liability advanced by Pederson.

[42] The excluded report was not significant because Jenish was able to testify about the difference in slipperiness as contained in his other reports and the theory that the test area had been tampered with. As a result, even if the trial judge was wrong in his ruling on the permitted evidence of Jenish, there was no miscarriage of justice. The admission of Jenish's first report would not have made a difference to the outcome in this case.

E. Disposition

[43] As I have found that there was no error in the exclusion of the expert evidence, I would dismiss the appeal. The respondents are entitled to costs of the appeal in the agreed upon amount of $39,305.29.

Released: February 19, 2026 "L.S."

"D.A. Wilson J.A."

"I agree. Sossin J.A."

"I agree. L. Favreau J.A."