Court of Appeal for Ontario

Citation: Harrop v. Harrop, 2010 ONCA 390

Date: 20100601

Docket: C51596

Before: Goudge, Sharpe and Armstrong JJ.A.

Between:

Denise Harrop and Terry Harrop, by their Litigation Guardian

Plaintiffs/Appellant

and

Roseanne Harrop

Defendant/Respondent

Counsel:

Jane Poproski and Lou Ferro, for the appellant

Matthew Wells, for the respondent

Heard and released orally: May 21, 2010

On appeal from the order of the Divisional Court (Justice James D. Carnwath, Justice R. D. Gordon and Justice P. Theodore Matlow (dissenting)) dated June 24, 2009

ENDORSEMENT

[1] The issue in this case is whether a motion judge can decide on the admissibility of proposed expert evidence.

[2] In our view, the policy considerations relevant to this issue all point to the trial judge determining this question. It avoids the risk of a multiplicity of proceedings in any given case. It ensures a full context in which the decision can be made. It avoids the risk of preliminary steps being taken for purely tactical reasons. And it avoids creating different appeal rights depending on whether the decision is made by a motion judge as an interlocutory order or the trial judge.

[3] Thus, even if a motion judge has such jurisdiction, it should be exercised only in the rarest of cases. Nothing has been shown to us to put this case in that category.

[4] The appeal must be dismissed. Costs to the respondent fixed at $5,000 inclusive of disbursements and GST.

"S. T. Goudge J.A. "

"Robert J. Sharpe J.A."

"Rob P. Armstrong J.A."