COURT OF APPEAL FOR ONTARIO

CITATION: P.M. Snelgrove General Contractors & Engineers Ltd. v. Jensen Building Limited, 2016 ONCA 728

DATE: 20161004

DOCKET: C60051

Feldman, Epstein and Miller JJ.A.

BETWEEN

P.M. Snelgrove General Contractors & Engineers Ltd.

Plaintiff (Respondent)

and

Jensen Building Limited and Madajama Holdings Ltd.

Defendant (Appellant)

AND BETWEEN

Jensen Building Limited

Plaintiff by Counterclaim (Appellant)

and

P.M. Snelgrove General Contractors & Engineers Ltd. and Paul Snelgrove

Defendants by Counterclaim (Respondents)

R. Steven Baldwin, for the appellant

John R. Crouchman and Kristin Muszynski, for the respondents

Heard and released orally: September 27, 2016

On appeal from the judgment of Regional Senior Justice James E. McNamara of the Superior Court of Justice, dated January 27, 2015.

ENDORSEMENT

[1] The appellant’s complaint is that having found responsibility by both the plaintiff and defendant for the failure of the Edwards and Wolfe Springs projects to make a profit, the trial judge did not apportion liability for that responsibility and award compensation to the appellant.

[2] The agreement between the parties was that the respondent would be entitled to 30 per cent of the profit of each project. There was no agreement regarding responsibility for losses. Nevertheless, the action was fought on responsibility for negligence on the projects that caused the failure to earn profit, and in the case of the Wolfe Springs project, a loss.

[3] The trial judge found no negligence on the Wolfe Springs project. There is therefore no basis for compensation to be awarded. On the Edwards project, the trial judge found that both parties did not meet the onus to prove that they were entitled to compensation from each other for the failure to earn a profit. They were both responsible. On those findings, as the case was conducted and based on the contract between the parties, we see no basis to interfere or to order a new trial.

[4] The second issue is whether the trial judge erred by excluding the evidence of the appellant’s expert, Mr. Pratt. We were told that the respondent, having had Mr. Pratt’s report for a long time, only objected to his evidence at trial based on an allegation of failure to be independent. The trial judge then held a voir dire and excluded the evidence in reasons released with the trial decision. We agree with the respondent that the trial judge was entitled to exclude the evidence of the expert for failure to be impartial. It is a discretionary decision that was open to him, although it is rarely done.

[5] However, we observe that procedurally the better course is for counsel to give early notification of any concerns regarding the admissibility of expert evidence and a request to the trial judge to render a decision on the voir dire before continuing the trial. That would have given counsel the opportunity to make any changes to his trial strategy, consequent on the exclusion of the expert’s evidence. Having said that, it appears that in this case, the exclusion of the expert evidence did not affect the outcome.

[6] The appeal is therefore dismissed with costs fixed at $20,000 inclusive of disbursements and HST.

“K. Feldman J.A.”

“Gloria Epstein J.A.”

“B.W. Miller J.A.”