2706463 Ontario Inc v. Long Branch Neighbourhood Association, 2023 ONTLAB 17

Toronto Local Appeal Body

40 Orchard View Blvd, Suite 211

Toronto, Ontario M4R 1B9

Date:

2023-02-21

22 150409 S53 03 TLAB

22 150410 S45 03 TLAB

22 150412 S45 03 TLAB

2706463 Ontario Inc v. Long Branch Neighbourhood Association, 2023 ONTLAB 17

DECISION AND ORDER

Issuance Date:

February 21, 2023

PROCEEDING COMMENCED UNDER section 53, subsection 53(19), Section 45(12), subsection 45(1) of the Planning Act, R.S.O. 1990, c. P.13, as amended (the "Act")

Appellant:

2706463 Ontario Inc

Applicant:

EKP Designs Inc

Property Address:

24 FAIRFIELD AVE

COA File No.:

20 232829 WET 03 CO (B0055/20EYK)

20 232831 WET 03 MV (A0515/20EYK)

20 232832 WET 03 MV (A0516/20EYK)

TLAB Case File No.:

22 150409 S53 03 TLAB

22 150410 S45 03 TLAB

22 150412 S45 03 TLAB

Hearing Date(s):

October 5, December 8, 2022, January 5, 2023. (Expected February 24, February 27, March 10, 2023)

Decision Delivered By:

TLAB Panel Member Yao

REGISTERED PARTIES AND PARTICIPANTS:

People Type

Name

Representative

Moving Party

2706463 Ontario Inc (Appellant)

R. Cheeseman

Responding Party

Long Branch Neighbourhood Association

J. Gibson

INTRODUCTION AND CONTEXT

1Mr. Cheeseman has brought a motion for the following Order:

27.The Appellant requests an Order requiring the witness Ms. Mercado and any other lay witnesses present provide only factual evidence unless it can be established that said evidence would be permitted under the [R v Graat] test set out above for a lay witness to provide opinion evidence.

2Mr. Cheeseman’s client, 2706463 Ontario Inc, seeks to sever 24 Fairfield, a 50-foot lot, into two 25 foot lots. It also requests 6 variances per lot. The case in favour of the severance is completed, consisting of two duly qualified experts – one in planning and the other in arboriculture.

3At this time, we are at the beginning of the opposing Neighbourhood Association case. Ms. Mercado the president of the Long Branch Neighbourhood Association, has been sworn and is setting out the history of the organization, its mission statement and involvement in the 24 Fairfield application. She stated that she did not intend to qualify herself as an expert and at this point Mr. Cheeseman rose to object to her giving any opinion evidence.

4Mr. Cheeseman’s argument pivots on the fact that his two witnesses have been qualified by me as experts in their respective fields. I note that “expert” in the context of a TLAB hearing has a technical meaning, it means the person is allowed to give “opinion” evidence as opposed to “factual information”, sometimes called “direct knowledge”. Mr. Cheeseman argues, since I have qualified his witnesses, there must be a limit to the assistance that Ms. Mercado can offer, based on her non-expert status. He proposes that this line is clearly demarked, and that demarcation can be ascertained even before she begins to speak. Finally he requests that I tell her what to avoid speaking about. I do not agree.

5Mr. Cheeseman also argues that since the experts have certified that their evidence will be impartial and Ms. Mercado, has said that after study, she is opposed to the project; so, even if she provided opinion evidence, it would not be “fair, objective or non partisan”. She said in her opening remarks, that in in her view, the severance and variances does not meet the tests under s. 53 and 45(1) of the Planning Act. I should note that except for the impartiality certification under Form 5, this is the same process followed by Mr. Qi, 2706463 Ontario Inc’s planner. He studied the project with an open mind but then concluded that he can support it because, he said it meets the statutory tests. She has done the same, but come to the opposite conclusion, based on much of the same data, since I expect that the relevant lot frontages and Committee of Adjustment decisions come from the same City records.

6Mr. Cheeseman provided scholarly papers discussing the “gatekeeping” function when a court qualifies an expert.¹ However these papers largely address courts and criminal trials.

7There are many reasons I have not followed the advice of the scholarly papers. Planning is a public process where the public, including professional planners, are invited to comment. ² Before making a planning decision about severances or variances, a meeting must be held to which the public is invited. Both the Committee and the TLAB notices invite attendees to “make their views known”. The public is not invited to criminal prosecution or a civil lawsuit to make their views known.

The TLAB makes an effort to deal with self represented persons, who are more common in TLAB hearings than for court proceedings.³

I note, as do all the authors and judges commenting on this issue, to categorize a thing as a fact or opinion, is something that persons on either side can offer arguments. Finally, as the Neighbourhood Association brief points out, the Statutory Powers Procedure Act permits the TLAB to admit evidence which is inadmissible at court.⁴

8Lay evidence was preferred over a qualified planner in 65 Fortieth St, a decision of former Vice Chair Takluder. A review request from her decision was denied by Member Gopikrishna.

9There is a further reason for dismissing the motion; it is brought prematurely, and I amplify this conclusion below. If the expert/lay witness distinction is really one of relevance or weight as opposed to admissibility, it can be raised later in closing argument, after having heard the specific alleged opinion.

R v Graat

10Mr. Cheeseman requested that I follow of R v Graat, a 1982 decision of the Supreme Court of Canada. The motion asks me to order that Ms. Mercado limit herself (my words) accordingly. But this case widens the circumstances under which non-experts may testify.⁵

11The trial judge in Graat only determined admissibility after hearing all the evidence, including that of the lay observers, the police who flagged down Mr. Graat.

12Mr. Graat was convicted of impaired driving, based on the evidence of police officers who observed his driving and smelled his breath. ⁶ Graat’s appeal argued that police evidence should have been excluded because, defence counsel argued, the officers were lay witnesses giving impermissible opinion evidence.

13Justice Dickson disagreed. Although Mr. Cheeseman and other commentators have distilled his judgement into a “four-part test”, in my view, he based his conclusions not so much as the lack of expert status, but the common experience that most unimpaired drivers do not weave over the centreline of the road, etc. Such evidence, even from a lay witness, should be admitted to adjudicate the case.⁷

14In Graat there was no special procedure followed by trial judge. In the next two cases, also cited by Mr. Cheeseman, admissibility of a non-expert testimony was decided only after a “voir dire”, that is, a “trial within a trial” to determine admissibility.

Mohan and Ahmed⁸

15In Mohan, Dr. Mohan was charged sexual assault on four young female patients and wished to call an expert in his defence. The judge held a voir dire and heard Dr. Hill, the expert, testify as to pathology (that is, the typical behavior of a disease) of those kinds of individuals who would have the propensity to commit acts, similar to those alleged to have been committed by Dr. Mohan.⁹ The evidence would have been probative of Dr. Mohan not belonging to that class. After hearing from Dr. Hill, the trial judge excluded his evidence.

16This exclusion was ultimately upheld on the basis that Dr. Hill’s evidence represented a venture into a field of study not sufficiently advanced as to be reliable.

Nothing in the record supported a finding that the profile of a paedophile or psychopath has been standardized to the extent that it could be said that it matched the supposed profile of the offender depicted in the charges. The expert's group profiles were not seen as sufficiently reliable to be considered helpful. In the absence of these indicia of reliability,

17I note that judges, who are not experts in the pathology of sex offenders, had no difficulty with their own ability to assess the reliability of a science and were not overawed by the “expert” nature of Dr Hill’s evidence. In this case, Mr. Cheeseman argues that I should prefer the testimony of his witnesses because they are experts and have sworn to give impartial testimony. It is premature to make this assessment.

18In Ahmad, the prosecuting agency, the Halton Region Conservation Authority wished to tender a non expert, Mr. Murray, a watershed enforcement officer and a voir dire was held on the issue of whether he could give admissible evidence.¹⁰ Similar to Graat, there was no expert to testify on the investigation. During the voir dire, Mr. Murray said that the fill was recently deposited because it contained tire tracks and was not covered with vegetation. The judge concluded this evidence was admissible.

19Thus, the Mohan judge concluded an expert’s evidence was inadmissible; the Ahmad judge determined that a non-expert’s was admissible. I conclude a witness’s status as expert or non-expert is not determinative of admissibility, and to belabour my main conclusion, all these matters should await the conclusion of the hearing, after having heard both sides.

20Notwithstanding that Statutory Powers Procedure Act permits me to admit evidence that would possibly be inadmissible in court, Mr. Cheeseman has put me on notice that he intends to raise in submissions any aspect of Ms. Mercado’s testimony that falls outside the judgement in Graat. As I said before, the thrust of Graat was to limit the exclusionary rule’s application. In other words, it widens the criteria to admit evidence from persons who are lay witnesses.

TIMING OF THE OBJECTION

21This is a different argument from the foregoing and has to do with the fact that Mr. Cheeseman is bringing presumably a motion which intends to strike any future testimony or determine it is not admissible as a finding during the hearing. His Factum concludes:

24.A point of concern raised at the hearing at which this motion was ordered was the appropriate time at which an opposing party may raise an objection to the evidence provided by a witness. The courts have held that if opposing counsel wishes to challenge the admission of expert testimony, that should be done immediately after the expert has stated her qualifications and before the witness has testified to the matter in question Sopinka, The Law of Evidence in Canada, p. 537

25.The courts have generally held that any objection to oral evidence be raised at the time the impugned evidence is given. This is also reflected at Rule 34.12 of the Rules of Civil Procedure. Lucas v Canniff, 2021 BCSC 1014, para. 65 Merck Sharp & Dohme Corp v Pharmascience Inc., 2022 FC 417, para. 45

26.Based on the above, the most appropriate time for any objection to be raised to oral evidence is at the time the evidence is being proffered.

I now deal with each of the supporting references in turn.

Sopinka

22I have footnoted the Sopinka reference. ¹¹ Read in context, Justice Sopinka makes it clear that the challenge that must be made immediately is only to the expert’s qualifications. Indeed, TLAB’s practice is to hold a “mini voir dire” on his or her qualifications, during which time opposing parties can dispute expert status. Justice Sopinka was not talking about a challenge to a lay witness.

Rules of Civil Procedure,

23In my view, there is a clear error in the Factum. Rule 34 only refers to out of trial examinations, which this is not.¹²

Lucas

24Lucas v Canniff was a motor vehicle accident case in which the only issue was the quantum of Ms. Lucas’s damages, (essentially whether her lifetime earnings were impaired). Ms. Lucas adduced two non-experts, her mother and a friend. The objection was not to their status as non-experts, but hearsay.

25I footnote a lengthy excerpt from the BC judgement, including Mr. Cheeseman’s highlighting.¹³ The trial judge says that a hearsay objection should have been made as the mother testified, not afterward, during submissions. From this, Mr. Cheeseman argues that he has no choice but to bring this motion before Ms. Mercado has begun to speak.

26I disagree that he has no choice. This motion has put me on notice that Mr. Cheeseman will raise in final submissions the non-expert nature of Ms. Mercado’s future evidence. He can do that, and he could do so even if he had brought this motion.

Merck

27I now turn to the Merck case, which Mr. Cheeseman says supports the necessity for an “immediate objection on the record” (my words). I also disagree. Madam Justice Furlanetto’s judgement did disallow some objections because they were not made in a timely way, but for major objections, she allowed the objector to do this separately, during final submissions. One of these major objections was based on the expert/non-expert divide, and the Justice’s recounting shows it was a consistent issue throughout the trial.

28This was a patent infringement case in which the patent holder Merck was successful against the defendant, Pharmascience. The basic issue was whether Pharmascience’s formulation was truly inventive or a mere tweak that would be “obvious” to a hypothetical ”skilled person in the art”. To arrive at a decision, Madam Justice Furlanetto was given oral evidence of the laboratory processes leading to the patent, subsequent clinical testing and general background knowledge about solid state organic chemistry. Dr. Wenslow was the project leader in the first step of invention, and Merck tendered him as a non-expert witness. Although he was a research scientist, the ultimate legal question was more “downstream” (my word), and outside of Dr. Wenslow’s specialty.

29Merck attempted to give Dr. Wenslow’s testimony by way of affidavit; but then the parties agreed that it should be offered as vive voce (i.e. in person) testimony within the hearing.¹⁴ It was during final submissions that the judge makes the distinction between evidence that must be attacked immediately and that which can be reserved for final submissions.¹⁵ Four objections could be reserved:

hearsay,

opinion, [i.e. the same objection as for Ms. Mercado]

“Beyond the Pleadings”, and

late disclosure.

Mr. Cheeseman is not precluded from raising a concern with forthcoming opinion evidence from a non-expert. As in the Merck case, he will have his opportunity to revisit the law in Graat.

30Justice Dickson specifically reserved the right of defence counsel to make an admissibility objection on appeal “in the circumstances of this case”.

I do not think failure on the part of defence counsel to object to the admission of inadmissible evidence should, in the circumstances of this case, stand in the way of directing a new trial if such evidence is held to be inadmissible. (Graat, under “The Facts”)

31I am of the view that allowing Ms. Mercado to proceed without prior determination of Mr. Cheeseman’s concerns about Graat is substantially the same process as followed by the Graat trial judge and therefore implicitly approved by the Supreme Court. In addition, I have latitude under the Statutory Powers Procedure Act and I choose to exercise that discretion here.

ORDER

32The motion is dismissed.

T. Yao

Panel Member

Footnotes

1. 1. . . it has never been more important that courts police the border between lay and expert opinion. As we shall demonstrate below, the opposite has occurred. Lay and expert opinion are now nearly identical in the topics they relate to, the type of reasoning they engage in, and accordingly, the prejudices they present. In reviewing this trend, we begin by presenting the historic rule. We then trace its growth through two appellate cases, and a recent trial decision building on those cases. (Jason M Chin, Jan Tomiska and Chen Li, Drawing the Line between Lay and Expert Opinion Evidence, 2018 63-1 McGill Law Journal 89, 2018 CanLIIDocs 325, at p 97)
2. 2The TLAB permits anyone, without preconditions to elect to become a party. There is no fee to do this.
3. 3As with all claimed areas of expertise, all witnesses are subject to having the limits of their professed area of expertise challenged. However, this is more usefully done during the testimony phase rather than the qualification phase. This is the difference between 'admissibility' and 'relevance'. (TLAB public Guide)
4. 4Evidence
   What is admissible in evidence at a hearing
   15. (1) Subject to subsections (2) and (3), a tribunal may admit as evidence at a hearing, whether or not given or proven under oath or affirmation or admissible as evidence in a court,
   (a) any oral testimony; and
   (b) any document or other thing,
   relevant to the subject-matter of the proceeding and may act on such evidence, but the tribunal may exclude anything unduly repetitious.
   What is inadmissible in evidence at a hearing
   (2) Nothing is admissible in evidence at a hearing,
   (a) that would be inadmissible in a court by reason of any privilege under the law of evidence; or
   (b) that is inadmissible by the statute under which the proceeding arises or any other statute.
5. 5Opinion evidence can be provided by a lay person where the trier of fact determines that said witness meets the test set out in the Supreme Court of Canada case Graat v R. In said case, the Court considered four factors as being key to whether said evidence would be permitted, in addition to whether the evidence would be of assistance to the court: a. Whether the witness is in a better position than the trier of fact to form the conclusion being presented; b. Whether the witness has the necessary experience to draw the opinion presented; c. Whether the conclusion is one that a person of ordinary experience is able to make; and d. Whether the opinions expressed are a way of stating facts that are too subtle or complicated to be narrated effectively without resorting to conclusions. (par 12, Cheeseman Factum)
6. 6At approximately 2:15 a.m. on the date in question, Constables Case and McMullen of the London City Police observed Mr. Graat's vehicle travelling at a high rate of speed. The constables followed for several blocks. They observed Mr. Graat's car weaving in the southbound lane, crossing the centre line on two occasions and driving onto the shoulder of the road on another occasion. When the vehicle turned left it straddled the centre line. Both constables testified they noticed the smell of alcohol on the appellant's breath; both said Mr. Graat was unsteady on his feet, he staggered as he walked, and·had bloodshot eyes. (Graat SCC)
7. 7The appellant sought leave to appeal to the Court of Appeal of Ontario and at that time the question was raised as to whether the trial judge had erred in law in relying on the opinion evidence of the two police officers that the appellant's ability to drive a motor vehicle had been impaired by alcohol. The Court dismissed the appeal, saying that the evidence was admissible under the exception to the rule excluding opinion evidence that permits non-expert opinion evidence where the primary facts and the inferences to be drawn from them are so closely associated that the opinion is really a compendious way of giving evidence as to certain facts-in this case the condition of the appellant. . . .
   In my opinion, impairment is a degree of drunkenness. It is a compendious way of describing a condition based on observed facts. It does not require the evidence of a doctor or other expert, nor should it be limited to persons who themselves drive cars. (Graat)
8. 8R v Mohan, 1994 CanLII 80 (SCC) and Halton Region Conservation Authority v Ahmad et al., 2016 ONCJ 54
9. 9At the conclusion of the respondent's examination in chief, counsel for the respondent indicated that he intended to call a psychiatrist who would testify that the perpetrator of the offences alleged to have been committed would be part of a limited and unusual group of individuals and that the respondent did not fall within that narrow class because he did not possess the characteristics belonging to that group. The Crown sought a ruling on the admissibility of that evidence. The trial judge held a voir dire and ruled that the evidence tendered on the voir dire would not be admitted. (Mohan)
10. 10[2] During the course of Mr. Murray’s examination in chief, the counsel for the defendants objected to the admission of an opinion on the basis that it was neither an expert opinion nor a properly admissible lay opinion. A voir dire to determine the admissibility of the subject opinion commenced on December 7th, 2015 and was completed on January 4th, 2016. The voir dire was then adjourned until January 25th, 2016, for my ruling. (Ahmad Reasons for Decision on a Voir Dire)
11. 11If opposing counsel wishes to challenge the admission of the expert’s testimony, he or she should do so immediately after the expert has stated his or her qualifications and prior to the witness testifying on the matter in issue. If such a challenge is raised, the issue becomes a preliminary question for the judge alone to determine, and opposing counsel can cross-examine the witness as to his or her qualifications. however, if no objection is raised before the expert testifies on substantive matters, then any cross-examination as to qualifications goes only to the weight, not to the admissibility of her or his testimony. This should be distinguished from the situation where an expert gives evidence outside the field in respect of which he or she is qualified. In that instance, it is immaterial that no challenge was made at the time that the witness was qualified. Failure by counsel to object to the expert’s qualifications at an early stage is only a bar to a subsequent objection so long as the witness stays within his purported area of expertise. (Sopinka, John, Lederman, Sidney N. Q.C., & Bryant, Alan W., “Chapter 12: Opinion Evidence” The Law of Evidence in Canada (Markham: Butterworths Canada Ltd., 1992 at 537))
12. 12RULE 34 PROCEDURE ON ORAL EXAMINATIONS
    Application of the Rule
    34.01 Rules 34.02 to 34.19 apply to,
    (a) an oral examination for discovery under Rule 31;
    (b) the taking of evidence before trial under rule 36.01, subject to rule 36.02;
    (c) a cross-examination on an affidavit for use on a motion or application under rule 39.02;
    (d) the examination out of court of a witness before the hearing of a pending motion or application under rule 39.03; and
    (e) an examination in aid of execution under rule 60.18.
13. 13Hearsay evidence
    [64] First, the defendants object that the plaintiff’s case relies on hearsay evidence from her witnesses. The defendants object that much of the evidence of the plaintiff’s collateral witnesses, particularly her mother Lawrie Lucas and friend Alan Brownfield, consists of out-of-court statements that these witnesses attribute to the plaintiff. The defendants object that such evidence is inadmissible hearsay and cannot be relied on by the Court.
    [65] I do not accept the defendants’ submission on this point. Any hearsay objection should have been raised at the time that the witnesses gave the impugned evidence, and not at the end of trial as a blanket objection advanced in the course of final argument. The defendants insist that the evidence of Ms. Lawrie [sic] and Mr. Brownfield is “replete with hearsay”, without providing any particularized examples and without having objected to the evidence in the course of trial. As plaintiff’s counsel points out, there is prejudice to the plaintiff in being deprived of the opportunity to speak to a hearsay objection at the time the evidence was given.
    [66] In any event, it is not apparent to me that the evidence of these witnesses is flawed in the manner suggested by the defendants. Ms. Lawrie and Mr. Brownfield gave evidence as to their observations of the plaintiff’s physical condition, mood, and limitations after the accidents. In Ms. Lawrie’s case, the evidence included, by contrast, observations of the plaintiff’s physical condition, mood, and limitations before the accidents. Such evidence is commonly received in actions that involve the assessment of damages for soft tissue injuries and chronic pain. The evidence of collateral witnesses allows the Court to test the reliability of the evidence of a plaintiff about pain symptoms that may often have limited grounding in objective medical evidence. While I agree that collateral witnesses should not be permitted to simply repeat what they were told by a plaintiff about their injuries, that is not what occurred here.
    [67] For these reasons, I reject the defendants’ submission that the evidence of Lawrie Lucas and Alan Brownfield is inadmissible hearsay. (2021 BCSC 1014 072 072 Lucas v. Canniff Page 19; yellow indicates highlighting by Mr. Cheeseman)
14. 14[44] While it was not disputed that Dr. Wenslow could appear at trial and submit an affidavit introducing those documents covered by the agreement, covering subject matter beyond the pleadings, and/or being contrary to rules 232 and 248 of the Federal Courts Rules. In light of the timing of these objections, and on the basis of their nature and number, which in many cases included parsing words and/or sentences from within paragraphs, it was determined that the Court would benefit from hearing Dr. Wenslow’s full oral testimony at trial and that the admissibility of the objected to portions of his affidavit evidence would be dealt with as a preliminary matter as part of this decision. Time was reserved for argument on the motion to take place at the close of the evidence. The parties also agreed that counsel for [Pharmascience] would provide an update after Dr. Wenslow testified as to whether any objections would be withdrawn. However, in the end, the motion was not narrowed. Instead, [sought to add additional objections arising from Dr. Wenslow’s oral testimony. [Pharmascience] was directed to identify the additional objections and the impugned portions of the affidavit to which they related. (Merck)
15. 15[[45] As determined by oral ruling during objections to argument on the motion, after-the-fact direct testimony not related to impugned portions of the affidavit were rejected as it was viewed that the failure of [Pharmascience] to raise the objection during the testimony precluded Merck properly responding to the objections at the relevant time and potentially curing any deficiency: [citation omitted] were elicited by [Pharmascience] directly. The remaining objections are set out in the Appendix attached to this decision. [my bold] The Appendix lists the original objections to the affidavit, along with the objections to the asserted related oral testimony and provides my specific dispositions on Below, I provide some general comments on the four primary grounds of objection.
    (2) Opinion Evidence [ This is a part of Madam Justice Furlanetto’s “general comments” that relate to the opinion issue]
    [53] The general rule is that a fact witnesses must limit their testimony to the facts of which they are aware and not to inferences or opinions drawn from those facts: citation omitted]. This rule applies unless the witness is in a better position than the trier of fact to form the conclusions made, the conclusions are ones that a person of ordinary experience can make, the witness has the experiential capacity to make the conclusions, or where giving opinions is a convenient mode of stating facts too subtle or complicated to be narrated as facts: : Toronto Real Estate Board v Commissioner of Competition, 2022 FC 417 114 114 Page: 19 2017 FCA 236 at para 79. The line between fact and opinion is not always clear: Graat v The Queen, 1982 CanLII 33 (SCC), [1982] 2 SCR 819 at 835 (Merck)
    [54] [Pharmascience] objects to all or part of 26 paragraphs of Dr. Wenslow’s affidavit and related oral testimony on the basis that he is providing impermissible opinion evidence. [Pharmascience] asserts that Dr. Wenslow gives unhelpful, and potentially misleading opinion evidence that does not meet the limited and narrow exceptions for a fact witness. Merck asserts that many of the alleged objections relate to factual evidence regarding the observations and conclusions drawn by Merck employees at the time. Merck argues that if any opinion evidence is provided, it is admissible because Dr. Wenslow is well positioned to provide that evidence and has the experiential capacity to do so.
    [55] The majority of the statements alleged to be opinion set out the reasoning behind the choices made by the [Merck] team and are admissible for this purpose. While some of the statements are technical in nature, this does not automatically negate the statements, especially where such statements reflect the understanding of the development team at the time. In some cases, Dr. Wenslow adds “gloss” to his description of events. However, in most cases such comments are not of such a character that would mislead the Court or be prejudicial to [Pharmascience] and do not warrant the exclusion of the evidence. Such comments can most effectively be dealt with by considering the weight to be given to the statement. With few exceptions, the objections made in this category are dismissed. (Merck)