COURT FILE NO.: 607/01

DATE: 20030326

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

o'driscoll, herOld and linhares de sousa jj.

B E T W E E N:

NICOLE HOOLANS and JEFFREY DELANEY

Appellants

• and -

NELLES HART VAN LOON and COMMERCIAL UNION ASSURANCE COMPANY OF CANADA

Respondents

Howard R. Smith, for the Appellants

Tammy Ring, for the Respondent Nelles Hart Van Loon

HEARD: March 26, 2003

O'DRISCOLL J.: (Orally)

1The appellants are plaintiffs in a personal injury action brought against the respondent, Nelles Hart Van Loon, for injuries which they sustained in a motor vehicle accident on August 5, 1995.

2The respondent, Nelles Hart Van Loon, brought a motion for summary judgment against the plaintiffs returnable May 2, 2000. That motion was adjourned for further submissions on the admissibility of the plaintiffs' expert reports. The reports were initially appended to a solicitor's affidavit which was tendered in response to the defendant's motion. At the hearing of the motion, counsel for the defendant objected to the form of the plaintiffs' expert evidence and subsequently refused to consent to the re-filing of this evidence by way of affidavits authored by the experts themselves.

3By order, dated August 8, 2000, Mr. Justice Colin Campbell ordered that the plaintiffs be given leave to deliver this expert evidence by way of affidavit deposed by the experts because the plaintiffs had in no way been dilatory in producing the evidence necessary to respond to the defendant's motion for summary judgment.

4Cross-examination of the plaintiffs' experts were scheduled for January 24, 2001. At that time, the cross-examination of Mr. Stein Pederson, P. Eng., commenced. However, all questions relating to Mr. Pederson's findings and opinions were refused as improper questions which were not relevant to the issues raised by the defendant in the motion for summary judgment.

5The cross-examinations were adjourned to allow the defendant an opportunity to bring a motion for refusals and for directions with respect to the proper scope of cross-examination with respect to the plaintiffs' experts. That motion proceeded before C. Campbell J. on June 12, 2001. In his reasons, dated June 15, 2001, C. Campbell J. ruled that the plaintiffs' experts were required to answer questions relevant to the foundation and the assumptions of their opinions.

6C. Campbell J. said in his reasons:

"[8] Counsel for the Plaintiffs submits that Ferring Inc. v. Richmond Pharmaceuticals Inc. (1996), 45 C.P.C. (3d) 299 (Div. Ct.), is to be distinguished, since in that case it is the plaintiff who sought to obtain summary judgment, whereas here it is the Defendant. It was suggested that the test may be different where the effect of a summary judgment motion may be to deprive a plaintiff from pursuing a claim.

9I am satisfied that there is nothing in the authorities or in the rules that would support such a position. I recognise that by the step of cross-examining on an expert report, the whole process of the summary judgment motion has been made more complicated, time-consuming and costly. There is, however, redress to a party who successfully resists a summary judgment within the cost sanctions of rule 20. A party, the Defendant in this case, should not in my view be deprived of the scope of cross-examination that any party would otherwise be entitled to. The scope of cross-examination should, in my view, be limited only by the matters which are put in issue on the motion for summary judgment by the affidavit of the expert.

10It must be recognised that to some extent, the issues alive on the motion may involve in a collateral way, credibility. This may not be avoided. However, issues which go beyond those raised in the affidavits and which deal with matters in the action itself, as opposed to those which are raised in the summary judgment motion, are to be avoided.

11To accept the position of the Plaintiff would render cross-examination virtually meaningless. Counsel undertaking cross-examination of an expert in the context of a summary judgment motion should recognise that if the motion does

not succeed, there will be a penalty for the decision to cross-examine. A pre-judgment that cross-examination is not warranted should not be made at this stage except in the clearest of cases.

12As the Divisional Court recognised in Ferring, supra, even "semblance of relevance" must be restricted to the determination as to whether or not there is a triable issue. The summary judgment process has a built-in redress for abuse of it and the party seeking to obtain that relief should not be constrained from obtaining relevant evidence to put before the Court on the issue.

13Since expert evidence has been accepted as relevant on summary judgment motions, cross-examination on the affidavits of experts should be subject to the same rules as those for other affiants.

14The Plaintiffs' experts will therefore be required to answer questions relevant to the foundation and assumptions of their opinions. Given the nature of this motion, it is appropriate in my view to leave the costs of it to be determined by the judge who hears the summary judgment motion."

7The plaintiffs' experts are of the opinion that there is a causal connection between the defendant Van Loon's conduct and the plaintiff's injuries. On November 26, 2001, Chapnik J., for reasons set out in a type-written endorsement, pursuant to s.19(1)(b) of the Courts of Justice Act and Rule 62.02(4)(a) and (b) of the Rules of Procedure, granted leave to appeal to this Court from the decision of C. Campbell J.

8In Canadian Imperial Bank of Commerce v. Molony (1983), 32 C.P.C. 213 at p. 217, Anderson J. quoted the following authorities:

(i) Thomson v. Thomson, [1948] O.W.N. 137, 138, a decision of Gale J.:

"…a person cross-examining on an affidavit was not confined to the area within the four corners of the affidavit but could cover any matters relevant to the determination of the issue in respect of which the affidavit was filed. But that is something quite different from saying that the cross-examination can touch upon all questions involved in the action, whether or not those questions are pertinent to the motion upon which the affidavit is filed."

(ii) Superior Discount Ltd. v. N. Pelmjutter & Co., [1951] O.W.N. 897, 898, a decision of the Senior Master:

"(1) It must be relevant to the issue in respect of which the affidavit is filed or to the credit of the witness, and the fact that it may incidentally disclose evidence of the witness's case is not of itself sufficient to make it inadmissible.

(1) It must be a fair question;

(2) There must be a bona fide intention of directing the question to the issue in the proceeding or to the credibility of the witness."

9In Wojick v. Wojick and Donger, [1971] 2 O.R. 687, 688, Galligan J. said:

"…and I think the wife, having raised this issue in the particular affidavit, and it is now filed and before the Court, I think I would be doing a disservice to the defendant if he were not permitted to cross-examine upon an issue put in evidence by the plaintiff, even though such issue is irrelevant."

10With respect, in our view, Rule 31.10(1) of the Rules of Civil Procedure does not pertain to the issue before the Court.

11In our view, in this case, there is no basis for an allegation of abuse of process.

12We find no error in the impugned order of C. Campbell J., dated June 15, 2002. Indeed, we are of the view that the motions court judge was correct. The appeal is dismissed.

13Costs of the appeal and costs of the application for leave to appeal are hereby fixed at $2,500, payable forthwith by the appellants, plaintiffs to the respondent, Nelles Hart Van Loon.

O'DRISCOLL J.

herOld J.

linhares de sousa J.

Date of Reasons for Judgment: March 26, 2003

Date of Release: March 31, 2003

COURT FILE NO.: 607/01

DATE: 20030326

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

o'driscoll, herold and

linhares de sousa jj.