Sosnov et al. v. J&H Freiberg Developments et al.

[Indexed as: Sosnov v. J&H Freiberg Developments]

Ontario Reports

Ontario Superior Court of Justice

Divisional Court, Swinton, Pattillo and Boswell JJ.

February 11, 2021

154 O.R. (3d) 476 | 2021 ONSC 1081

Case Summary

Civil procedure — Evidence — Expert evidence — Pre-trial judge in occupiers' liability action appointing expert to prepare a report on liability issues based on documents provided by parties and on interviews with parties — Judge not issuing reasons for order despite objections to order from both parties — Defendants' appeal from order allowed — Judge ought to have issued reasons in light of objections — Absence of reasons prevented meaningful appellate review — Order usurped role of trier of fact and the parties' right to present evidence as they saw fit.

Judgments and orders — Reasons — Pre-trial judge in occupiers' liability action appointing expert to prepare a report on liability issues based on documents provided by parties and on interviews with parties — Judge not issuing reasons for order despite objections to order from both parties — Defendants' appeal from order allowed — Judge ought to have issued reasons in light of objections — Absence of reasons prevented meaningful appellate review — Order usurped role of trier of fact and the parties' right to present evidence as they saw fit.

The plaintiffs commenced an occupiers' liability action arising from an incident in which one of the plaintiffs was alleged to have struck her head on the underside of an interior staircase in a building owned and operated by the defendants. The pre-trial judge felt that it was necessary to appoint an expert. An order was issued appointing an expert to assist the court in understanding the question of liability including human factor issues and any other relevant liability issues within his expertise. The order provided that the expert was to be provided with all documents in the action, could ask questions of the parties and their experts, and was to prepare a report with his opinion as to whether the design of the defendants' building created a safety hazard. The parties were to split the expert's fees equally. [page477] The defendants were opposed to the appointment and the plaintiffs were opposed to having to pay. The pre-trial judge did not issue reasons for her order. The defendants appealed the order.

Held, the appeal should be allowed.

The pre-trial judge ought to have issued reasons in light of the parties' objections. The absence of reasons prevented meaningful appellate review. The pre-trial judge erred in appointing an expert to determine the matters in issue as well as issues not raised by the parties. The order required the expert to investigate, weigh evidence and explore any other scenario which in his view would be relevant to the understanding of liability. In so doing, the order usurped the role of the trier of fact and the parties' right to present the case as they saw fit. The order was set aside.

Cases referred to

Phillips v. Ford Motor Co. of Canada Ltd., 1971 389 (ON CA), [1971] 2 O.R. 637, [1971] O.J. No. 1564, 18 D.L.R. (3d) 641 (C.A.); R. v. Walker, [2008] 2 S.C.R. 245, [2008] S.C.J. No. 34, 2008 SCC 34, 294 D.L.R. (4th) 106, 375 N.R. 228, [2008] 6 W.W.R. 1, J.E. 2008-1209, 310 Sask. R. 305, 231 C.C.C. (3d) 289, 57 C.R. (6th) 212, 77 W.C.B. (2d) 732, EYB 2008-134315, 2008 CCAN para. 10,038

Statutes referred to

Occupiers' Liability Act, R.S.O. 1990, c. O.2 [as am.]

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 50.01, 50.07, 52.03(1)

APPEAL from an order appointing an expert.

Elena Pelz, for respondents/plaintiffs.

David Merner and Shima Heidari, for appellants/ defendants.

[1] BY THE COURT: -- This is an appeal by the defendants, J&H Freiberg Developments, 562443 Ontario Limited, 742397 Ontario Limited and Steehild Investments Ltd. from the order of J. Wilson J. (the "pre-trial judge") dated August 5, 2020 (the "order") which appointed an expert for the court.

[2] The plaintiffs, Larisa and Viatcheslav Sosnov, did not participate in the appeal and take no position provided costs are not sought against them.

[3] Leave to appeal the order, which is interlocutory, was granted by a panel of this court on September 28, 2020.

[4] At the conclusion of the hearing, we advised the parties that the appeal was allowed with reasons to follow shortly. These are our reasons.

[5] The plaintiffs' action is pursuant to the Occupiers' Liability Act, R.S.O. 1990, c. O.2 and claims damages arising from an incident that occurred on May 19, 2012 when the plaintiff, Larisa Sosnov, alleges she hit her head on the underside of an interior staircase in a building owned and operated by the defendants. [page478]

[6] Discoveries have been completed, mandatory mediation held, expert reports from human factor experts have been exchanged and the action set down for trial. Liability and damages remain in dispute.

[7] The pre-trial took place before the pre-trial judge over several days commencing on May 22, 2020. At the outset, the pre-trial judge indicated that she felt it was necessary for the court to appoint an expert. The defendants opposed the appointment and subsequently filed a Supplementary Pre-Trial Conference Memorandum and Book of Authorities in support of their position. The plaintiffs took no position but objected to having to pay any associated costs.

[8] The parties were provided with the signed order on August 20, 2020. There was no endorsement or reasons accompanying the order.

[9] The order appoints an expert to assist the court "in understanding the question of liability including human factor issues and any other issues in his opinion relevant to the questions of liability within his expertise".

[10] The order provides, among other things, that the expert:

(a) is to be provided with all the documents in the action, including the pleadings, discoveries, expert reports, photographs and any documents and information requested by him;

(b) can ask questions of the parties, in writing through their counsel, and speak directly with their experts;

(c) shall provide a report with his opinion as to whether the design of the building, given the location of the accident, created a safety hazard for members of the public and listed the factors to take into account and the information the report should contain including the areas of agreement and disagreement and if the latter are factual, what the factual differences are; the expert's opinion of the differences and the reasons for the opinion including any research and outside sources consulted; and

(d) shall be paid a fee of $525 per hour plus taxes and disbursements to be split equally between the plaintiffs and the defendants.

[11] The purpose of a pre-trial is to provide an opportunity to settle any or all issues without a trial and, with respect to any issues not settled, to provide orders or directions "to assist in the just, most expeditious and least expensive disposition of [page479] the proceeding" (Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 50.01).

[12] As a result, a pre-trial judge has a broad discretion to, amongst other things, make such orders as he or she considers necessary or advisable with respect to the conduct of the proceedings (rule 50.07).

[13] Rule 52.03(1) provides that a judge may, at any time, on motion by a party or on his or her own initiative, appoint one or more experts to inquire into and report "on any question of fact or opinion relevant to an issue in the action".

[14] While we recognize that not every order or direction made in a pre-trial proceeding will require reasons, in the present proceeding where the appellants were opposed to the appointment of a court expert (and the plaintiffs to having to pay for it), in our view, it was incumbent on the pre-trial judge to provide reasons for the order. She did not.

[15] Further, the absence of reasons prevents meaningful appellate review: R. v. Walker, [2008] 2 S.C.R. 245, [2008] S.C.J. No. 34, 2008 SCC 34. In the circumstances, the failure of the pre-trial judge to provide reasons is an error.

[16] Further, the pre-trial judge erred in our view, in appointing an expert to determine the matters in issue as well as issues not raised by the parties. The role of a court-appointed expert is to assist the court in understanding the evidence within their area of expertise. It is not to investigate, advance possible theories and state, as conclusions of fact, opinions based on matters not advanced in evidence: Phillips v. Ford Motor Co. of Canada Ltd., 1971 389 (ON CA), [1971] 2 O.R. 637, [1971] O.J. No. 1564 (C.A.).

[17] That, however, is exactly what the order does. It requires the expert to investigate, weigh evidence and explore any other scenario which in his view would be relevant to the understanding of liability. In so doing, the order usurps the role of the trier of fact and the parties right to present the case as they see fit.

[18] For the above reasons, the appeal is allowed and the order is set aside.

[19] Given the plaintiffs' position respecting costs and the appellants' agreement not to seek costs, no order as to costs.

Appeal allowed.

End of Document