ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12023/01
DATE: 2012-08-17
B E T W E E N:
Ellen Smith
K. Baert and C. Poltak, for the Plaintiff
Plaintiff
- and -
Inco Limited
A. Lenczner, L. Lowenstein and L. Fric, for the Defendant Inco Limited
Defendant
- and -
The Law Foundation of Ontario
S. Hutchison, A. Dantowitz and J. Safayeni, for the Law Foundation of Ontario
Respondent
HEARD at Welland: June 18, 2012
The Honourable Justice J. R. Henderson
DECISION ON MOTION TO STRIKE AFFIDAVITS
Introduction
[ 1 ] The defendant Inco brings this motion to strike out the evidence contained in affidavits sworn by Richard Lindgren (“Lindgren”), Beatrice Olivastri (“Olivastri”) and Chris Tollefson (“Tollefson”), all of which were filed on behalf of the Law Foundation of Ontario (“LFO”) in support of LFO’s submissions in the costs proceeding.
[ 2 ] This motion generally concerns the extent to which a non-expert witness can provide admissible opinion evidence in a court proceeding. Some of the content of the three abovementioned affidavits constitutes opinion evidence. As it is acknowledged that none of the three deponents is offered as an expert witness, Inco submits that the opinions contained in the affidavits are not admissible.
Background
[ 3 ] This action is a class proceeding that was commenced against Inco on behalf of most of the property owners in the City of Port Colborne. It was alleged that the soil on the lands owned by the class members was contaminated by nickel emissions from the Inco refinery. The claim was grounded in the torts of nuisance and trespass, and the doctrine in Rylands v. Fletcher.
[ 4 ] The plaintiff class was successful at trial, but the Ontario Court of Appeal (“OCA”) set aside the trial decision, dismissed the claim against Inco, and sent the case back to me, the trial judge, to resolve the costs issues.
[ 5 ] In the costs proceeding, Inco requests payment of its costs out of the Class Proceedings Fund (“the Fund”) pursuant to s.59.1(2) of the Law Society Act, R.S.O. 1990, c. L.8, as the Fund provided financial support to the plaintiff class members. The Fund is an account that is maintained and administered by LFO.
[ 6 ] In contesting Inco’s request for payment of its costs out of the Fund, LFO submits that this case raised novel points of law and involved matters of public interest. Both of those factors are referenced in s.31(1) of the Class Proceedings Act, 1992, S.O. 1992, c.6, which reads: “In exercising its discretion with respect to costs … the court may consider whether the class proceeding was a test case, raised a novel point of law or involved a matter of public interest.”
[ 7 ] In support of its position, LFO relies upon the evidence of Lindgren, Olivastri, and Tollefson. Each of these three witnesses in their affidavits offers an opinion that this case involved a matter of public interest.
[ 8 ] Clearly, evidence as to whether this case involved a matter of public interest is relevant to the costs proceeding. The real question is whether the opinions of these three non-experts on this issue are admissible before this court.
The Law
[ 9 ] The leading case as to the admissibility of opinion evidence from non-expert witnesses is that of R. v. Graat, (1980) 30 O.R. (2d) 247 (OCA), aff’d [1982] 2 S.C.R. 819 (SCC). In that case two police officers (non-expert witnesses) testified that in their opinion the accused’s ability to drive was impaired by alcohol. This opinion evidence was based upon a list of factual observations made by the police officers, including observations that the accused’s car was weaving on the roadway, the car crossed the centre line, the car travelled onto the shoulder of the road, the accused’s breath smelled of alcohol, and the accused was unsteady on his feet after exiting the vehicle.
[ 10 ] The trial judge admitted the opinion evidence of these two officers at the trial, and the accused was convicted. Appeals to the County Court and the OCA were dismissed. At the Supreme Court of Canada (“SCC”), in the decision cited above, the Court confirmed that the evidence of the two officers was admissible as evidence of impairment by alcohol.
[ 11 ] At page 824 of the SCC decision, the Court approved of a statement made by the OCA that admissible opinion evidence fell into two traditional categories: (1) expert opinion evidence on matters requiring specialized skill and knowledge, and (2) non-expert opinion evidence on matters requiring no special knowledge, where it is virtually impossible to separate the witness’ inference from the facts on which the inference is based.
[ 12 ] On the same page, the SCC also adopted comments made by the OCA that the admission of opinion evidence in the latter category was merely a compendious way of ascertaining the result of the witness’ observations.
[ 13 ] At page 835 the SCC provided a non-exhaustive list of subjects upon which non-expert witnesses were permitted to give opinion evidence, including the identification of handwriting, persons and things, apparent age, the bodily plight or condition of a person, the emotional state of a person, the condition of things, questions of value, and estimates of speed and distance.
[ 14 ] Further, at page 837 the SCC adopted a statement from Professor Cross that in cases where “the facts from which a witness received an impression were too evanescent in their nature to be recollected, or too complicated to be separately and distinctly narrated”, a witness may be permitted to state his opinion or impression.
[ 15 ] In summary, the Graat case stands for the proposition that opinion evidence from a non-expert witness is admissible if the opinion is one that does not require any specialized skill or knowledge, and the opinion is grounded in the factual observations of the witness, and the opinion is actually a compendious way of ascertaining the witness’ observations.
The Affidavits in the Present Case
[ 16 ] All three of the deponents of the contentious affidavits in this case have experience in the area of environmental law or environmental reform, and provide their opinions as to whether, and how, this class proceeding involved a matter of public interest.
[ 17 ] Lindgren is a lawyer who has been on staff at the Canadian Environmental Law Association (“CELA”) which is a public interest law group that uses the Canadian legal system to protect the environment, and advocates for environmental law reform.
[ 18 ] Lindgren’s opinion is summarized at paragraph 21 of his affidavit as follows: “One of the ways in which this proceeding involved a matter of public interest was that it served as a template for access to justice for environmental mass tort claimants.” The next two paragraphs of his affidavit provide some factual observations that support his opinion, including the fact that this action was closely monitored by environmental groups, and the fact that this action demonstrated that an environmental mass tort claim could proceed as a class proceeding.
[ 19 ] Further, at paragraph 24 Lindgren observes that there are numerous brownfield properties containing historic environmental contamination. Much of paragraphs 25 to 28 of Lindgren’s affidavit is a recitation of the law, or a recitation of the legal issues that were raised by the present case.
[ 20 ] Finally, at paragraph 29, Lindgren provides a further opinion that members of the public are becoming increasingly reliant on environmental tort claims because Canadian government bodies have reduced budgets and staffing levels and have reduced environmental approval requirements.
[ 21 ] Olivastri is the chief executive officer of Friends of Earth Canada (“FOE”). FOE is a not-for-profit charitable organization whose mission is to be a voice for the environment and to advocate for equitable access to environmental justice.
[ 22 ] At paragraph 11 of her affidavit Olivastri offers her opinion that the present case “served the public interest by reviving the potential for class actions to serve as a vehicle for … access to justice …” in the context of environmental tort claims. In that same paragraph she also offers an opinion that the present case served as a vehicle for behaviour modification of environmental polluters.
[ 23 ] Olivastri provides factual observations in support of her opinion in paragraph 14, but those factual observations only go to the issue of access to justice, not to the issue of behaviour modification. Specifically, she deposes that class actions are a viable means by which members of the public without deep pockets can pursue justice, and that environmental issues often affect the low income and socially disadvantaged groups in society.
[ 24 ] Olivastri also provides a summary of tort law and the objectives of tort law at paragraph 12. She gives her opinion at paragraph 13 that historic contamination from industrial operations is a serious problem across Canada. Olivastri, at paragraph 15, also opines about incentives for polluters and about behaviour modification, but there are no factual observations in support of those opinions.
[ 25 ] Tollefson is a law professor, practicing lawyer, and executive director of the University of Victoria Environmental Law Centre. At paragraph 8 of his affidavit he deposes that the present action has been closely followed within the Canadian legal community, particularly by environmental, energy and resource lawyers. This is a statement of fact, and Tollefson provides support for this statement at paragraphs 11 and 12 in the form of references to a book, articles, and conferences, all of which refer to the present case.
[ 26 ] At paragraphs 9 and 10 Tollefson gives his opinion that the interest in this case was attributable to the fact that it was the first environmental class action to be certified, and the first trial on the merits in such a class proceeding. In Tollefson’s opinion the interest specifically surrounds the issue of whether and to what extent class action legislation can promote access to justice.
[ 27 ] Paragraph 13 contains a list of legal issues that Tollefson believes were raised by the present case. Finally, at paragraph 14 Tollefson deposes that he has firsthand knowledge of clients deciding not to proceed with meritorious legal actions out of concerns about the prospect of adverse costs liability. Accordingly, he believes that class actions may facilitate easier access to justice for environmental tort claimants.
Analysis
[ 28 ] It is appropriate to divide the content of the three affidavits into several categories.
[ 29 ] First, the first part of each of the three affidavits consists of statements as to the general background of the deponent, the deponent’s association with environmental groups, and the deponent’s knowledge of the present case. All of these statements are admissible as background information.
[ 30 ] Second, all of the deponents made some statements as to facts that are obvious, or facts upon which this court does not need any specific evidence. For example, there were several references to the fact that there are many sites throughout Canada with historic contamination. In my view, these types of comments have low probative value, as they are comments about well known facts upon which a court does not need opinion evidence. However, these statements will not be struck out of these affidavits because such statements act as a foundation for the substantive opinions of the deponents. In analyzing a witness’ opinion it is important for the court to know the foundation upon which it is built.
[ 31 ] Third, all of the deponents offered opinions with respect to the legal issues that were raised, or the state of the law. Such statements are not admissible per se as it is the purview of the judge to determine the state of the law and the legal issues that were raised. Moreover, in this case it is the trial judge who is in the best position to identify the legal issues that were raised.
[ 32 ] However, again I will not strike these portions of the affidavits as the deponent’s opinion as to the legal issues that were raised serve as a foundation or grounding for the substantive opinion that is offered by the deponent. That is, I do not accept the deponent’s view of the law for its accuracy, but I accept it for the purpose of weighing the opinion that follows.
[ 33 ] Fourth, all of the deponents offered an opinion that this class proceeding involved matters of public interest, and each expressed that opinion in a different manner. Each of these three deponents provided some factual observations in support of that opinion, all from different perspectives. In my view this is the type of admissible opinion evidence from a non-expert witness that was contemplated by the Graat decision.
[ 34 ] Specifically, the deponents in this case made observations such as the fact that this class proceeding was referenced in certain books and articles, or the fact that this proceeding was closely monitored by environmental groups, or the fact that those who are affected by environmental contaminants may not have access to justice other than by way of a class proceeding. These factual observations led these non-expert witnesses to form their opinions that this case was important to the public interest, and in particular to the issue of access to justice.
[ 35 ] These opinions do not require special skill and knowledge, are opinions based on factual observations, and are opinions provided as a compendious way of stating the witness’ observations.
[ 36 ] The only real difficulty with these opinions is that the factual observations in support of the opinions were sparse. That is, the factual observations were provided in a general way with few details. In my view, this problem was remedied by the fact that all three of the deponents were produced for cross-examination in the costs proceeding. Therefore, none of the aforementioned opinion evidence will be struck out.
[ 37 ] Fifth, the opinion evidence from Olivastri with respect to behaviour modification of polluters was pure speculation. I accept that behaviour modification is one of the objectives of any tort action. However, there were no factual observations that would support Olivastri’s opinion that behaviour modification was or could be achieved by this case. Therefore, those portions of Olivastri’s affidavit that refer to behaviour modification will be struck out.
[ 38 ] Sixth, the observation by Lindgren that Canadian government ministries were reducing budgets and staff is not supported by any factual observations. Thus, those portions of Lindgren’s affidavit will also be struck out.
Conclusion
[ 39 ] As a result of this analysis, paragraph 15 of Olivastri’s affidavit will be struck out; that portion of paragraph 11 of Olivastri’s affidavit that refers to behaviour modification will be struck out; and paragraph 29 of Lindgren’s affidavit will be struck out.
Henderson, J.
Released: August 17, 2012
COURT FILE NO.: 12023/01
DATE: 2012-08-17
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Ellen Smith Plaintiff - and – Inco Limited Defendant - and – The Law Foundation of Ontario Respondent DECISION ON MOTION TO STRIKE AFFIDAVITS Henderson, J.
Released: August 17, 2012