COURT FILE NO.: 370/05
DATE: 20060208
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
IN THE MATTER of an appeal by David Cairns and Sharon Hutton to the Ontario Municipal Board under subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended from a decision of the Committee of Adjustment which dismissed an application numbered B015/05 for consent to convey part of the lands composed of Lots 5-11, of Block M, Registered Plan B-88 and Lot 58 Registered Plan A-23, in the City of Mississauga.
IN THE MATTER of an appeal by David Cairns and Sharon Hutton to the Ontario Municipal Board under subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended from a decision of the Committee of Adjustment which dismissed an application numbered A038/05 for variances from the provision of By-law 5500, as amended, respecting 886 Tennyson Avenue.
B E T W E E N:
lorne park estates association
Applicant
- and -
DAVID CAIRNS, SHARON HOTTON and
THE CORPORATION OF THE CITY OF MISSISSAUGA
Respondents
BEFORE: WILSON, J.
HEARD: February 2, 2006
COUNSEL: Kevin R. Aalto, for the Applicant
Roderick MacDougall, for the Respondents, David Cairns and Sharon Hotton
Paul M. DeMelo, for the Respondent, The Corporation of the City of Mississauga
E N D O R S E M E N T
[1] The applicant, Lorne Park Estates Association, seeks leave to appeal from the decision of F.G. Farrell of the Ontario Municipal Board (“OMB”). The OMB is scheduled to hear an appeal from the decision of the Committee of Adjustment for the City of Mississauga, denying the respondents’ right to subdivide their lot in Lorne Park Estates. The decision that Lorne Park seeks leave to appeal is Mr. Farrell’s refusal to disqualify Mr. Mokrzycki as an expert witness testifying on behalf the respondents, David Cairns and Sharon Hotton, at the anticipated OMB hearing.
[2] Mr. Mokrzycki was the former Planning Commissioner for the City of Mississauga. He was initially contacted by Lorne Park to testify on its behalf at the OMB hearing. After discussions with the planner for Lorne Park, Mr. Parker, and after the Mr. Parker provided information to him, Mr. Mokrzycki declined the retainer.
[3] The scope of this information conveyed forms the substance of this motion for leave to appeal.
[4] The respondents, David Cairns and Sharon Hotton, subsequently retained Mr. Mokrzycki to testify on their behalf.
[5] Lorne Park alleges that Mr. Mokrzycki was in receipt of “confidential information which included a written summary of an intended case.”
[6] This bald assertion is contained in the affidavit of the planner acting on behalf of Lorne Park. Counsel argues that to allow Mr. Mokrzycki to testify. in light of this statement, would bring the administration of justice into disrepute.
[7] The factum on this appeal appears to elaborate on the affidavit material that was filed with the OMB in the motion to disqualify, at paragraphs 11, 12 and 13:
[11] Parker had discussions with Mokryscki regarding the character and type of evidence required at the OMB appeal and the strategy to be put forward by the LPEA.
[12] To supplement their conversation, on or about May 4, 2005, Parker sent to Mokryscki a memo outlining the facts of the case, LPEA’s theory of the case as well as a copy of the LPEA’s operating by-laws which contained margin notes with respect to those sections upon which the LPEA would rely on and other details of the arguments that would be used in opposing the appeal brought by CH before the OMB for his review and to assist in the preparation of his evidence to be given to the OMB.
[13] Parker understood that to further prepare himself, Mokryscki visited the site, reviewed the memo sent to him by Parker, and visited the City of Mississauga planning department.
[8] Mr. Farrell declined to either disqualify Mr. Mokrzycki, or order a voir dire on the matter before another panel member. He focused on the relationship between Mr. Mokrzycki and the applicant, and concluded based upon the evidence before him that “there was no express confidential relationship” between Mr. Mokrzycki and Lorne Park.
[9] He applied and considered the test argued before me by counsel for Lorne Park in Macdonald Estate v. Martin, [1990] 3 S.C.R. 123, including the two questions to be answered:
Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand?
Is there a risk that it will be used to the prejudice of the client?
[10] If paragraph 12 of the applicant’s factum describes the allegedly confidential information at issue, it appears that all of this information described will be squarely before the OMB in evidence at the hearing. It would be difficult to conclude that this information could result in prejudice.
[11] The questions posed in Macdonald Estate must be considered, and confidential information cannot be used to the prejudice of the client or in this case a potential client. However, with respect to expert witnesses, the inquiry does not end there, since Macdonald Estate deals with solicitors, not expert witnesses.
[12] The principles in Macdonald Estate must be balanced against the competing principles enunciated in Harmony Shipping Co. S.A. v. Saudi Europe Line Ltd., [1980] 1 Lloyd’s Rep. 44 (Eng.C.A.) and other cases considering the disqualification of experts. Harmony Shipping confirms that the purpose of a hearing is to ascertain the truth. There are no property rights in a witness. Counsel acknowledges that had Mr. Mokrzyski been retained by Lorne Park, that he would be a compellable witness at the OMB hearing and that either side could have subpoenaed him to testify. The Court or Tribunal would be entitled to hear the expert’s testimony as to the actual facts that he has observed, and to have the expert’s independent opinion as to those facts. The Court or Tribunal would not, however, be entitled to hear evidence with respect to any of the communications regarding the expert’s instructions from the other side.
[13] The very recent unreported decision of Madame Justice Prothonotary Milczynski in Abbott Laboratories v. Ministry of Health (25 January 2006), Toronto T-2267-04 (F.C.T.D.) is helpful in outlining the proper approach to determine whether an expert should be disqualified, and the balancing of competing interests. This approach involves a close factual analysis with respect to potential prejudice, balanced against the principles in Harmony Shipping, and keeping in mind that there is no property in a witness. I outline paragraphs 19 and 21 of her decision:
[19] The proper approach to determine whether or not to an expert should be disqualified must consider the facts and surrounding circumstances of each case and:
• whether the expert knew he or she was receiving confidential information, with the expectation that the information would be maintained in confidence;
• the nature of the confidential information;
• the risk of the confidential information being disclosed;
• the risk of prejudice arising to either the party challenging the expert or to the party seeking to retain the challenged expert; and
• the interests of justice and public confidence in the judicial process.
[21] In Labee v. Peters, [1996] A.J. No. 809 (Alta. Q.B.), after reviewing a number of authorities, the Court set out the principles:
There is no property in a witness.
Even though a party has retained an expert and communicated privileged information to the expert, the expert may still be asked for an opinion by an opposing party and may call that expert at trial.
The expert may not, however, be questioned concerning any privileged material he received from the opposing solicitor nor shall he disclose any opinion he has given to the opposing counsel.
[14] The Board concluded that Mr. Mokrzycki could provide expert opinion with respect to the facts of this case. At this stage we do not know the anticipated content of the expert report. Counsel for the respondent has undertaken that Mr. Mokrzycki will provide a copy of his report to Lorne Park before the anticipated hearing. Confidentiality issues can be addressed if they exist in a more fully developed factual context.
[15] By way of conclusion, I am not satisfied, having regard to rule 62.02 (4)(a) or (b) of the Rules of Civil Procedure that leave to appeal should be granted.
[16] I am not satisfied that there is another conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in this appeal, and that it is desirable that leave be granted.
[17] Nor am I satisfied, based upon the very scant record before me, that there is good reason to doubt the correctness of the decision in question, and that the appeal as framed raises matters of such importance that leave to appeal should be granted. A party cannot baldly assert disclosure of confidential information to a potential expert who declines a retainer, and expect that the expert will be automatically disqualified on the basis of loss of public confidence in the judicial system.
[18] Reasonable costs should follow the event, and I fix costs payable by the applicants in the amount of $2000.00 inclusive of GST and disbursements.
Wilson, J.
DATE: February , 2006