Court File and Parties

COURT FILE NO.: 4330/03 DATE: 20090624

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: DENISE HARROP and TERRY HARROP by their Litigation Guardian DAVE HARROP, Plaintiffs (Appellants) - and - ROSEANNE HARROP, Defendant (Respondent)

BEFORE: CARNWATH, MATLOW & R. GORDON JJ.

COUNSEL: Lou Ferro & Jane Poproski, for the Plaintiffs/Appellants Matthew Wells, for the Defendant/Respondent

HEARD AT BRAMPTON: May 27, 2009

E N D O R S E M E N T

CARNWATH J.:

[1] The appellants appeal the order of MacKenzie J. in which he dismissed a motion to exclude from the evidence at trial the medical report and the evidence of Dr. D. A. Bednar. Leave to appeal was granted by Herold J. in reasons issued January 15, 2009.

[2] The issue to be decided is whether MacKenzie J. was correct in refusing to rule on the admissibility of "expert" evidence in his capacity as a motions judge.

[3] The appeal must be dismissed.

[4] MacKenzie J. relied on a decision of a panel of this Court: Paramount Tavern (Toronto) Ltd. v. Global Real Estate Co., [1993] O.J. No. 4341 (G.D.). In Paramount Tavern, the Court found, at para. 4:

We are all of the view that a motions judge has no jurisdiction to rule that expert evidence may not be called at trial. We agree with that statement of the law insofar as it relates to 'expert' evidence that is, evidence found to be capable of support by an expert opinion.

[5] We do not take Paramount Tavern, above, to mean that every opinion offered as expert evidence cannot be dealt with by a motions judge. It might well be within the jurisdiction of a motions judge to exclude an expert opinion based upon discredited science. That explains why the Court in Paramount limited its view of "expert" evidence to evidence found to be capable of support by an expert opinion.

[6] Should a motions judge find evidence not to be capable of support by an expert opinion, it would be open to rule on it at the motion. This would require the parties to lead sufficient evidence on the motion to equip the motions judge to so rule.

[7] As MacKenzie J. properly pointed out, there is the possibility of evidence being called at trial relating to expert evidence previously ruled admissible (or inadmissible) by a motions judge. Were the previous ruling called into question, this would result in vexing problems for the trial judge.

[8] We say only that it would be extremely rare for a motions judge to be in an equal or better position than the trial judge to rule upon the issue, particularly where the motion is to exclude.

[9] Despite the constant reference to "junk science" in the moving party's material, MacKenzie J. was correct in concluding the matter should be reserved to the trial judge.

[10] The appeal is dismissed.

[11] The parties may make brief written submissions as to costs within fifteen days of the date of these reasons.

CARNWATH J.

R. GORDON J.

MATLOW, J. (Dissenting)

[12] With respect, I am unable to agree with the disposition of the majority. I would allow the appeal, set aside the order of MacKenzie J. and remit the motion to be reheard by another judge. I would also invite written submissions as to costs.

[13] The motion before the motions judge in this personal injury action was brought by the plaintiff for an order "to exclude from the evidence at trial the medical report of Dr. D. A. Bednar proffered by the defence". Dr. Bednar is an orthopedic surgeon who was retained by the defence to conduct a medical examination of the plaintiff. It is his report on the examination, dated January 9, 2006, which was in issue. Apart from perhaps being also applicable to a second report dated May 10, 2006, prepared by Dr. Bednar in which he disputed many aspects of a report prepared by one of the plaintiff's doctors, no other relief was claimed in the motion or addressed by the motions judge, thereby leaving defence counsel's right to call Dr. Bednar to give viva voce evidence at trial still to be determined.

[14] The motions judge declined to determine the motion on its merits and, instead, referred it to the trial judge. He did so for two reasons which he expressed, in part, as follows;

i. First, the Divisional Court has stated that the trial judge is the only judge vested with jurisdiction to rule on the admissibility of potentially relevant evidence.

ii. However, there is a real concern that the possibility of an evidentiary act occurring during the trial relating to expert evidence previously ruled admissible by a motions judge could create a problem for the trial judge as gatekeeper by having the trial judge seeking to deal with an evidentiary act that was not before the motions judge or alluded to in his or her admissibility ruling.

[15] It is my respectful view that the motions judge erred in concluding that he did not have jurisdiction to determine the motion on its merits. Rule 37.02 (1) makes it abundantly clear that, as a judge, he did have such "jurisdiction". Rule 37.02 (1) reads as follows;

37.02 (1) A judge has jurisdiction to hear any motion in a proceeding.

[16] The motions judge ought to have gone on to consider whether or not he ought to exercise that jurisdiction to exclude the report or reports. That would have led him to go on to consider the submissions of counsel and then determine whether he should make a ruling on the merits or whether he should refer the motion to the trial judge as he did. If, for example, he had done this and reached the view that the report or reports were patently objectionable and that no evidence could possibly save them and that he was in as good a position as the trial judge, there would have been no reason for him not to make a decision on the merits. Quite to the contrary, if he were to conclude that the report or reports should be excluded, the benefits and savings to both parties of knowing that prior to trial could, for obvious reasons, be substantial.

[17] It is my view that the judgment in Paramount and the other cases cited by counsel for the respondent do not stand as a bar to the right of the plaintiff to bring his motion before a motions judge in advance of the trial.

[18] That there could be motions properly heard by a motions judge that could affect the conduct of a trial to be conducted by another judge is not without precedent. For example, rule 47.02 envisages that a motion to strike out a jury notice may be brought before a motions judge prior to trial subject to the proviso that the trial judge may still, "in a proper case", conduct the trial without a jury even if the motions judge had struck out the jury notice.

[19] Unfortunately, because the motions judge concluded that he did not have jurisdiction to hear the motion before him, counsel for the parties did not have an opportunity to argue the merits. They also did not have that opportunity before this Court.

[20] Therefore, although I am hesitant to prolong the course of this action, I am persuaded that the plaintiff's position on the motion is reasonably arguable and that he is now entitled to have an opportunity to renew his motion.

MATLOW J.

Released: 20090624