ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-04-0193
DATE: 2014-04-04
B E T W E E N:
Bearskin Lake First Nation and Chief Rodney McKay A Member of Bearskin Lake First Nation on His Own Behalf, and on Behalf of the Members of Bearskin Lake First Nation,
Peter Hollinger, for the Plaintiffs
Plaintiffs
- and -
Paul’s Hauling Ltd. and the Estate of Roy McKee,
Alex W. Demeo, for the Defendants
Defendants
HEARD: April 2 and 3, 2014,
at Thunder Bay, Ontario
Mr. Justice F. B. Fitzpatrick
Decision On Mid-Trial Motion
[1] This is a tort action for damages for negligence involving alleged contamination of lands arising from a diesel fuel spill in 2002. The plaintiff is a First Nation. The defendants are a fuel deliver company and the estate of one of its drivers.
The Motion
[2] At Day 8 of the trial, the defendants bring an oral, mid trial motion to disqualify in total the proposed expert testimony of the first of four expert witnesses proposed to be called by the plaintiff. The witness’s name is Jason Garatti. He is a geoscientist.
[3] At this point in the trial, the plaintiff has called only 5 witnesses, all members of the First Nation. For four of these witnesses, their evidence was mainly concerned with liability. The fifth witness was a community elder who gave some historical, background evidence which may be relevant to damages. The trial has not been proceeding at a break neck pace for a variety of reasons.
[4] Based on the opening statements I heard from both parties and the evidence I have heard to date, in broad terms, the central issues for resolution appears to be first whether or not the defendants are liable for a spill of diesel fuel at the First Nation fuel depot that occurred in March 2002. Secondly, if the defendants are liable, what are the damages arising from their alleged tortuous conduct.
[5] The motion alleges Mr. Garatti has filed an expert report that fails to comply with Rule 53.03(2.1)(3), (4),(5) and (6). Those rules are as follows:
“(2.1) A report provide for the purposes of subrule (1) or (2) shall contained the following information:
The instructions provided to the expert in relation to proceeding.
The nature of the opinion being sought and each issue in the proceeding to which the opinion relates.
The expert’s opinion respecting each issue and, where there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range.
The expert’s reason for his or her opinion, including,
i. a description of the factual assumptions on which the opinion is based,
ii. a description of any research conducted by the expert that led him or her to form the opinion, and
iii. a list of every document, if any, relied on by the expert in forming the opinion.”
[6] The defence argues the report as filed fails to satisfy both the letter and the spirit of the law for Rule 53.03. The defence alleges that the plaintiff’s have sought to file a “corporate” expert’s report rather than one that was specifically prepared by Mr. Garatti. The defendant argues that if he report is found to be non complaint with the aforementioned sub rules of Rule 53.03, Rule 53.03(3) prevents Mr. Garatti from testifying. Rule 53.03(3) states:
“An expert witness may not testify with respect to an issue, except with leave of the trial judge, unless the substance of his or her testimony with respect to that issue is set out in,
(a) a report served under this rule; or
(b) a supplementary report served on every other party to the action not less than 30 days before the commencement of the trial.”
[7] The motion came at the conclusion of the plaintiff’s evidence during the procedure seeking to qualify Mr. Garatti as an expert in the investigation and remediation of contaminated soil and groundwater, and an expert in the investigation of contaminated sites in association with Federal and Provincial legislation and regulation. At the conclusion of the examination in chief, counsel sought to have the Court accept Mr. Garatti as being qualified to give opinions on specific subjects which counsel listed. The list was as follows:
-soil and ground water investigation for hydrocarbons;
-soil and ground water investigation for contamination;
-contamination and hydro carbon analysis;
-analysis of site remediation options;
-construction and permitting of a bio remediation cell;
-the cost of site remediation;
-site investigation and analysis for contamination.
[8] The defendant commenced cross examining the witnesses as to his qualifications. At that point his report had not been introduced to the witness or the Court in any way.
[9] I made inquiries as to the relevance of the line of questioning as it struck me as going more as to the weight of Mr. Garatti’s opinion, rather than his qualifications to give that opinion. At that point counsel for the defendant argued that the basis of his questioning related to the compliance of Mr. Garatti’s report with the provisions of Rule 53.03. Defendant’s counsel conceded that Mr. Garatti was qualified to give the Court expert evidence as to the “shopping list” (words of plaintiff’s counsel) of the topics set out above, but should not be granted leave to do so.
[10] The matter then proceeded as a voir dire. Mr. Garatti’s Form 53 acknowledgment of expert’s duty and 311 pages of his 1600 (plus) page report were entered as exhibits on the voir dire. Mr. Garatti was examined and cross examined about the issue of whether his report was Rule 53.03 compliant. At the conclusion of his testimony, counsel for the plaintiff indicated after some back and forth with the Court, that he did not wish to call any further evidence on the motion.
[11] Mr. Garatti has given his testimony thus far in a forthright and candid manner. He clearly admitted the report at issue was not prepared for this litigation. He admitted he did not receive any instructions concerning his opinion with respect to matters identified in this litigation. He admitted his report did not expressly address the issue of the particular extent that could be specifically related to the alleged fuel spill by the defendants in 2002. In my view, the body of his report did not identify directly the topics for which his counsel asked that he be permitted to give an opinion. A very generous reading of the totality of the report might permit one to draw out those opinions, but they were not stated in black and white, directly in a manner that I could identify.
[12] In the circumstances, I think it important here to recount the history of the litigation for the purposes of giving context to my decision. The trial date for this matter was set sometime in 2012. The parties were aware of this trial date for over one year. Mr. Garatti’s preliminary report was served on the defence a year ago, in April 2013. His final report was served February 28th, 2014, 3 weeks before the trial started.
[13] This matter was subject to four trial management conferences conducted by myself. They were all conducted in 2014 on January 23, 29, February 20 and March 18th. These were conducted in chambers. During the trial management conferences there was much discussion on the topic of the experts who would testify at trial. I can best describe the state of who was going to be called as an expert for the plaintiff as being “fluid” even in the weeks shortly before this four week trial was set to begin. In fact, the plaintiff had to bring a motion to permit the late filing of a number of expert reports including the one by Mr. Garatti. This motion was resolved on Day 7 of the trial on consent.
The Law
[14] The defendant relies on the decision of the Ontario Court of Appeal in Marchand v. Public General Hospital of Chatham, 2000 16946 (ON CA), [2000] O.J. No. 4428 at paragraph 38. The Court of Appeal commented on the case law regarding the predecessor Rule 53.03, stated:
“these cases indicate that the “substance” requirement of Rule 53.03(1) must be determined in light of the purpose of the rule, which is to facilitate orderly trial preparation by providing opposing parties with adequate notice of opinion evidence to be adduced at trial. Accordingly an expert report cannot merely state a conclusion. The report must set out the expert’s opinion and the basis for that opinion”
[15] The defendant also relies on the relatively recent decision of the Divisional Court in Westerhof v. Gee Estate, 2013 ONSC 2093, [2013] O.J. No 3134. The defendant argues that this case requires strict compliance with Rule 53.03 if a party seeks to admit opinion evidence on behalf of that witness.
[16] The plaintiff argues that the Westerhof case is distinguishable from the facts in this case as Westerhof involved strictly an issue of the appropriate scope of treating physician testimony in personal injury cases and therefore cannot be so broadly applied to the geosciences expert evidence at issue in this matter.
[17] The plaintiff urges the Court to adopt the reasoning and approach to the appropriate application of Rule 53.03 as set out in a very recent decision of the Superior Court in Moore v. Getahun, 2014 ONSC 237, [2014] O.J. No. 135 J.M. Wilson J (January 14, 2014). At paragraph 36 in that decision Justice Wilson commented on Westerhof that it has created uncertainty about the appropriate scope of treating physician testimony which requires clarification from a higher Court. Justice Wilson also spoke of the issue of the previous distinction between a “treatment opinion” and a “litigation opinion”. At paragraph 37, she queried if the law is now that a treatment opinion must be considered fact evidence, not requiring Rule 53.03 compliance, and a litigation opinion, which is opinion evidence does require strict compliance with the rule.
[18] At paragraph 50 of Moore, Justice Wilson stressed the purpose of Rule 53.03 is to ensure expert witness’ independence and integrity. Other cases, admittedly decided prior to Westerhof, went to great lengths to describe the problems regarding the admission of expert testimony that had arisen in recent years and the reasons why Rule 53.03 was amended in an attempt to remedy these problems. In one such case to which I was referred, Continental Roofing Ltd. v. J.J.’s Hospitality Ltd., 2012 ONSC 1751, [2012] O.J. No 1166 at paragraph 43, Justice Koke quite succinctly stated “the amendments to the rule were intended to eliminate the use of “hired guns” or “opinions for sale” in civil litigation, which resulted in potentially biased evidence being given at trial”.
Discussion
[19] Mr. Garatti and his firm are not “hired guns”. His report was not prepared for this litigation. However, it is clear to me that Mr. Garatti’s report filed on the voir dire is only minimally compliant with the both the letter and spirit of Rule 53.03. Mr. Garatti has filled out a form 53. This was done one week before trial and served after the trial started. In my view that is as far as the report gets as far as compliance. It is not compliant first of all because it was not expressly prepared for this litigation. It addresses a very wide project undertaken by the First Nation to assess and then plan, to remediate some 26 contaminated sites in their community. One such site is the fuel depot which is the subject of this litigation. Even within the fuel depot site, there are five distinct areas of hydrocarbon impact, identified by Mr. Garatti’s report as “zones”. The plaintiff concedes that it is seeking damages only in respect of one zone, albeit the largest and most contaminated one at the fuel depot.
[20] In my view, the report is not sufficiently focused on the issues in this matter to assist in identifying for the defence, even broadly, what will be the essence of Mr. Garatti’s testimony at trial. Therefore it is not compliant with either the letter or the spirit of Rule 53.03(2.1)(4)(5) and (6).
[21] I accept the defendant’s argument that the form of the report has not assisted in the orderly preparation for trial. In this respect I am guided by the decision of the Court of Appeal in Marchand v. Public General Hospital of Chatham, 2000 16946 (ON CA), [2000] O.J. No. 4428 at paragraph 38.
[22] As of the date of this motion, the leading case in Ontario on the issue of the application of Rule 53.03 is Westerhof v Guy. I understand this case is under appeal. It concerned primarily the issue of expert medical testimony in personal injury cases. However, in my view the principle of law that is most applicable to this case emerges in the following passage at paragraphs 21 and 22:
“21 The important distinction is not in the role or involvement of the witness, but in the type of evidence sought to be admitted. If it is opinion evidence, compliance with rule 53.03 is required; if it is factual evidence, it is not
- Based on this distinction, it is not difficult to see that, where the expert has not been qualified to give the opinions tendered or where the report relied upon to advance the opinion does not comply with rule 53.03, it is correct for the trial judge to refuse to admit the evidence”
[23] I interpret this paragraph to mean that only in the rarest of cases will leave be granted for an expert who seeks to give opinion evidence be permitted to do so when all the provisions of Rule 53.03 have not been complied with. Other recent rulings of the Superior Court such as Continental Roofing and Moore have dealt with situations where leave has been granted for persons to give the court opinion evidence where there has not be strict compliance with Rule 53.03. In my view, these cases have been guided by a practical approach to the application of the rule rather than a restrictive overly technical interpretation. However, Westerhof v. Guy is the highest authority on the matter at present and accordingly must be followed unless it can be distinguished from the facts of this case.
[24] In my view, the amendments to Rule 53.03 were designed to prevent a great many mischief’s that trial judges and counsel were experiencing in the province regarding expert testimony. I agree with the comments of Justice Wilson in Moore that the preservation of the independence and integrity of expert witness was, and is, the primary goal of the 2010 amendments to Rule 53.03. However, the amendments did not change one of the very bedrock premises of the rule’s approach to the role of expert evidence in civil trials. This is the notion that parties should fully disclose the positions of their experts prior to trial. This is done both so that civil trials are not characterized by ambush or unduly delayed, and the opposing side can obtain and properly prepare any expert evidence they require for trial. Balanced against this important principle is the overarching goal of the trial process, and rules related to the process, as being dedicated to a search for truth.
[25] In this case, the evidence of Mr. Garatti is not challenged on the basis that it lacks independence or integrity. It is challenged because it does not specifically focus on the issues at hand and has not given the defence a fair opportunity to assess it ahead of trial. There has been an attempt at Rule 53.03 compliance. I find this was a genuine attempt at compliance and not one that sought to skirt the spirit or the letter of the rule. That being said, I have found the plaintiff’s attempts at compliance to be less than satisfactory at least as far as the content of the expert report tendered at this point.
[26] The circumstances of this motion are unique. It is clear to me that the report prepared by Mr. Garatti only minimally complies with Rule 53.03. He freely admits it was not prepared for this litigation. The spill and the damages arising therefrom forms only a very very small part of the subject matter of his report and the work he was engaged to do for this First Nation.
[27] The late service of Mr. Garatti’s final report has been explained by counsel for the plaintiff as arising from the fact he was not aware of the fact that the final report had indeed been completed. This has placed the defence in the position that it had to deal with this issue at Day 8 of the trial rather than during the pretrial procedures. It must be remembered that Mr. Garatti’s preliminary report was served on the defence a year ago but the final report was served on February 28th, 2014. This was not sufficient time for the defence to prepare its motion. I suspect the defence may raise similar issues with the testimony of the other plaintiff’s expert witnesses.
[28] The plaintiff argues the evidence of Mr. Garatti is relevant to matters at issue and any prejudice to the defendant is outweighed by its probative value and Mr. Garatti’s testimony should be admitted. Also it is suggested in argument that other experts in this trial have and will seek to rely in their testimony on the data and perhaps the conclusions contained in Mr. Garatti’s report.
[29] It may well be that Mr. Garatti could have been better introduced as a fact witness rather than as a Rule 53.03 type expert. Other cases have indicated that certain types of opinions may be acceptable if given by such fact type witnesses. The totality of Mr. Garatti’s report was obviously not covered in the evidence given so far but Mr. Garatti did admit has not even been to the fuel depot and has not witnessed the damaged ground at issue in this trial. There may however be a great deal of fact evidence that he could give which would be useful to me in determining the matter at hand and ensuring that this trial is conducted fairly.
[30] I can very much appreciate how the defendants’ can argue they are surprised by the evidence of Mr. Garatti. His report does not set out specifically the issues he will address at this trial. In my view, the defence should not have to go searching for relevant evidence or issues about which an expert will testify among the many pages of a report that clearly have nothing to do with matter at issue.
[31] However Rule 1.04(1) requires that the rules be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. In my view the remedy sought by the defendants on this mid trial motion of absolutely baring Mr. Garatti from testifying at this trial for the non compliance with rule 53.03 is too harsh given all the circumstances in this case. Alternatively the Court cannot condone the “throw in everything including the kitchen sink” approach taken by the plaintiff by filing a report containing a great deal of unrelated material then expecting that both the defence and the Court to go through it “to pick out the good bits”.
[32] In this matter, counsel for the defence has quite fairly admitted that Mr. Garatti is qualified to give opinion evidence. However, the defence indicates it has been prejudiced by the manner in which his expert report has been presented.
[33] In my view a just, most expeditious and least expensive solution to the defendant’s motion is to grant leave to the plaintiff to call Mr. Garatti to testify as a fact witness. However such leave does not include his utilizing his report as it is presently constituted to assist with his testimony. If the document is to be put to him in whole or in part, the precise pages relied upon must first be identified in writing to the defence. Only those documents which strictly deal with the spill that occurred at site 32 will be considered relevant. If Mr. Garatti testifies later in this trial, his report either must be culled to restrict it only to documents and opinions which are relevant to the spill that occurred at the #10 School Tank at the fuel depot or he must provide a new report. This may create the occasion for the defence to ask for an adjournment of the trial. This could result in a significant award of costs thrown away.
[34] If in the course of Mr. Garatti’s evidence, the plaintiff seeks to solicit evidence that arguably could constitute an opinion on a particular topic, the Court will deal with whether or not that evidence will be permitted on an issue by issue basis. However, his report as presently constituted will not be accepted into evidence as it was not prepared for this litigation and it would be unfair to permit him to refer to it when the defendants have not had the opportunity of being directed, in advance to those portions the plaintiff feels are relevant to this matter.
[35] In any event, I direct that Mr. Garatti’s testimony be put off to the end of the plaintiffs’ case. In the interim, if the plaintiff chooses to recall him with a further and better written report, it shall specifically addresses the subjects which his counsel listed during the “qualification” phase of his testimony. This report is to be provided as soon as possible. Once it is provided I will address any submissions that the defence wishes to make including entertaining any adjournment of the trial the defence may seek to prepare a responding report.
[36] Costs of this motion are reserved to the end of this trial.
The Hon. Mr. Justice F.B. Fitzpatrick
Released: April 4, 2014
COURT FILE NO.: CV-04-0193
DATE: 2014-04-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Bearskin Lake First Nation and Chief Rodney McKay A Member of Bearskin Lake First Nation on His Own Behalf, and on Behalf of the Members of Bearskin Lake First Nation,
Plaintiffs
- and -
Paul’s Hauling Ltd. and the Estate of Roy McKee,
Defendants
Decision On Mid-Trial Motion
Fitzpatrick J.
Released: April 4, 2014
/mls