Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2023 11 29 COURT FILE No.: Toronto 21100714

BETWEEN:

THE ONTARIO MINISTRY OF LABOUR, IMMIGRATION, TRAINING AND SKILLS DEVELOPMENT

— AND —

LIMEN GROUP CONST. (2019) LTD., OCTAVIO TOME, and EMANUEL TAVARES

Before: Justice Newton-Smith

Heard on: June 9 and 26, 2023 Reasons for Judgment released on: November 29, 2023

Counsel: W. Robinson, G. Adams, for the prosecution N. Keith, for the defendants Limen Group, Octavio Tome and Emanuel Tavares

Reasons Re: Admission of Expert Evidence

NEWTON-SMITH J.:

[1] During the course of the trial in this matter the crown sought to call expert evidence. In the interests of moving this trial along I gave the following ruling with reasons to follow:

Mr. Khorsand meets the threshold requirements for expert opinion evidence and may testify with respect to:

• The principles of structural engineering
• Engineering practices for hoisting and rigging

His evidence will be limited to the material issues before the court, namely the principles of structural engineering as they apply to what constitutes a suitable attachment point to hoist concrete blocks more than a few feet, and why.

[2] These are my reasons.

I. Overview

[3] A concrete waste block that was being hoisted by crane over a construction site fell and killed a worker. The defendants are being prosecuted for offences under the Occupational Health and Safety Act [OHSA] as a result of this incident.

[4] The Crown applied to call an engineer, Mr. Khorsand, to provide expert opinion evidence on the principles of structural engineering and engineering practices for hoisting and rigging.

[5] Specifically, the crown sought to call Mr. Khorsand to give his opinion as a structural engineer about the suitability of using embedded rebar as an attachment point to hoist blocks of concrete by crane.

II. The Evidence

[6] The charges faced by the defendants relate to the manner in which the waste concrete block that fell was rigged to the crane, and specifically to the use of embedded rebar as a hoisting point.

[7] There was video evidence before the court showing the waste concrete block being hoisted by crane over the job site.

[8] Mr. Solc testified as a crown witness. He was the swamper who rigged the fatal load. In his evidence he admitted using rebar embedded in the waste concrete block as the hoisting point. He also admitted that this was wrong.

[9] Mr. Khorsand was the last proposed crown witness.

[10] During the course of the voir dire Mr. Keith, counsel for all three defendants, conceded that the fatal load was not properly rigged by the swamper Mr. Solc. It was also conceded that the load failed as a result of the improper rigging by Mr. Solc. However, Mr. Keith maintained that exactly how Mr. Solc rigged the load and why it failed were not part of the admission. Despite my urgings the parties remained unable to come up with an agreed statement with respect to Mr. Khorsand’s evidence or the failure of the load.

[11] The mechanics of how the load failed remained a live issue which the crown proposed to address through the expert opinion evidence of Mr. Khorsand. Mr. Khorsand’s proposed evidence was offered to explain why, from a structural engineering perspective, the attachment points used to rig the load were not suitable.

[12] Mr. Keith objected to the admissibility of the expert evidence of Mr. Khorsand primarily on the basis that he was not a properly qualified expert. The attack on his qualifications included assertions that he was biased, partial and negligent.

[13] Mr. Khorsand was cross-examined at length on the voir dire. The cross-examination was aggressive, often hostile and at times amounted to a personal attack.

[14] Mr. Keith then called a witness on the voir dire, Mr. Jeffries. At the time that Mr. Khorsand prepared his report Mr. Jeffries held the role of Provincial Engineer for the Ministry. At the time of trial Mr. Khorsand was the Acting Provincial Engineer.

[15] Mr. Jeffries appears to have been called by the defendants with a view to undermining the credibility of Mr. Khorsand’s report. His examination also became hostile and included personal attacks in the form of questions containing commentary such as “you are embarrassing yourself”.

[16] Much of the examination of Mr. Jeffries centered on comments and suggestions that Mr. Jeffries had made to Mr. Khorsand during the preparation of his report. That commentary had been disclosed to the defendants as part of Mr. Khorsand’s work product.

[17] In his cross-examination on the voir dire Mr. Khorsand explained what the comments and suggestions meant to him, how he incorporated them into his final report and, if he did not follow a suggestion, why. Mr. Jeffries in turn in his evidence explained his comments and suggestions. His evidence made clear that his comments were not the criticisms and directives that Mr. Keith characterized them to be, but rather were questions and suggestions.

[18] I did not find that Mr. Jeffries’ evidence undermined Mr. Khorsand’s evidence in any way. Nor do I find that the cross-examination of Mr. Khorsand undermined his credentials or his proposed expertise.

III. Law and Analysis

[19] Expert opinion evidence is permissible on matters requiring specialized knowledge. The test for admissibility of expert evidence has two components, a threshold inquiry and a cost-benefit analysis. At the threshold inquiry there are four requirements: (1) relevance; (2) necessity in assisting the trier of fact; (3) absence of an exclusionary rule; and (4) a properly qualified expert. Where expert evidence meets the threshold criteria, an assessment must still be conducted to determine whether its probative value is overborn by its prejudicial effect. White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 at para 19.

Stage One – Threshold Admissibility

(1) Logical Relevance

[20] The principles of structural engineering and engineering practices for hoisting and rigging are logically relevant to the issue before the court of what a suitable attachment point is for hoisting loads of waste concrete.

(2) Necessity

[21] What constitutes a suitable attachment point and why are technical questions that are outside of my experience and knowledge. They are questions that can be answered by an engineer.

(3) Absence of an Exclusionary Rule

[22] There is no exclusionary rule in play here.

(4) Properly Qualified Expert

[23] An expert witness must have acquired special or peculiar knowledge through study or experience.

[24] Mr. Khorsand is the Acting Provincial Engineer for the Ministry of Labour. He has been employed as an engineer with the Ministry since 2008 and has a master’s degree in civil engineering from Ryerson University. Prior to his employment with the Ministry he held various positions at private corporations as a structural engineer.

[25] Mr. Keith attacked Mr. Khorsand’s credentials asserting that he did not have a specialized master’s degree as claimed in his cv. The cross-examination involved repeated reference to Mr. Khorsand’s Ryerson University transcripts as well as a course calendar from the university.

[26] Mr. Khorsand was able to explain his specialization and what courses he took to be so qualified. It became clear during the course of the cross-examination that the attack was based on Mr. Keith’s failure to understand the nature of the course on the transcript rather than a misrepresentation on Mr. Khorsand’s part.

[27] In his cv Mr. Khorsand stated that he had been qualified to give expert evidence on numerous occasions in the Ontario Court of Justice and at Coroner’s Inquests. The cases were listed. Mr. Keith asserted that this information in the cv was false and misleading. In support of these assertions he relied upon a case in which Mr. Khorsand had been a proposed crown expert, Ontario v. Advanced Construction Techniques Ltd., [2015] O.J. No. 6130 (C.J.) [ACT]. Mr. Keith asserted that, contrary to his cv, Mr. Khorsand had not been qualified to give expert opinion evidence in that case. This is only partially true.

[28] In the ACT case, Justice Knazan found that, “there is no question that Mr. Khorsand is a qualified engineer able to give expert opinion in the field of Geotechnical engineering” and qualified him to give, “expert evidence on all aspects of engineering and Geotechnical engineering”. However, in the particular circumstances of that case, Justice Knazan did not allow Mr. Khorsand to give opinion evidence on the root cause of the accident because he found that Mr. Khorsand had been so intensely involved in the investigation, the witnesses and the unfolding of the trial that he was not able to give, “a reliable objective opinion on a question that is so fundamental to the charges.”: ACT at paras 50 and 85-87.

[29] Those circumstances do not exist in this case.

[30] In a case the following year, R. v. Live Nation Canada Inc., [2016] O.J. No. 2046 (C.J.) Mr. Khorsand’s qualifications were again opposed with reliance being placed on the ACT decision. In Live Nation Justice Nakatsuru commented that not only did ACT turn on its readily distinguishable facts, but also that Knazan J. did not have the benefit of the Supreme Court’s decision in White and Burgess which had been released subsequently. He went on to find that Mr. Khorsand’s role as an engineer employed by the Ministry and involved in the investigation did not render him biased or partisan.

[31] In conclusion, Justice Nakatsuru made the following cautionary comments at para. 45:

I am of the view, that at the end of the day, as it was stated in Burgess there was no “realistic concern” that these witnesses were either unwilling or unable to discharge their expert duties to the court. It was really not necessary to explore this issue to any extent once the experts swore or affirmed that they were aware of and able to discharge their duties. While other cases may involve unique or exceptional facts not present here, it is my opinion that in future cases, this question could be far more efficiently dealt with when it comes to professional witnesses such as Mr. Khorsand and Mr. Molina in circumstances similar to this.

[32] There were no such unique or exceptional facts in this case.

[33] The duty owed by an expert witness to the court is to be fair, objective and non-partisan. Once the expert recognizes and accepts this duty, the burden falls to the party opposing the admission of the evidence to show that there is a realistic concern that the expert is unable or unwilling to comply with that duty. It is only in rare cases that an expert will fail to meet the threshold requirement of being impartial and unbiased: White and Burgess at paras 48-49.

[34] Neither the cross-examination of Mr. Khorsand nor the evidence of Mr. Jeffries revealed any evidence of bias or partiality on the part of Mr. Khorsand. I do not accept the defence submission that he is a biased, impartial witness who intentionally or negligently acts with partiality to the Ministry and the prosecution of this case and without adhering to his duties as a member of the Professional Engineers of Ontario.

[35] I accept his qualifications and find that Mr. Khorsand is a qualified expert in structural engineering.

Stage Two – Discretionary Gatekeeping

[36] The question to be addressed at this stage is, do the benefits in admitting this evidence outweigh any potential harm to the trial process. The only potential prejudicial effect in the admission of this evidence, in the circumstances of this judge alone case, is the undue consumption of time.

[37] The voir dire alone consumed the better part of two days of court time. Much of that was taken up with the cross-examination of Mr. Khorsand. Additionally, the defence called Mr. Jeffries. While this was, in my view, an undue consumption of court time, there was no reason for to expect Mr. Khorsand’s evidence at trial to be unduly complex or time consuming.

[38] There is benefit to the admission of this evidence and little to no harm.

Released: Nov. 29, 2023 Signed: Justice Newton-Smith