NEWMARKET

COURT FILE NO.: CV 09-94883

DATE: 20140602

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

1326111 Ontario Limited Operating as Steel Tile Company

Plaintiff

– and –

Sinisa Duric and Jovan Duric

Defendants

Ellen Brohm, for the Plaintiff

Milena Celap, for the Defendants

HEARD: May 29, 2014

RULING ON VOIR DIRE

McKelvey J.:

Introduction

[1] In this action the plaintiff sues for the balance which is alleged to be owing for a contract to install a new roof on the defendant’s premises. The defendant denies the plaintiff’s claim on the basis that the work performed by the plaintiff was defective and resulted in water damage to the property. The defendant has counter claimed for the damages it alleges have resulted from the defective workmanship. The work in question was performed by the plaintiff pursuant to a quotation dated September 8, 2008. The work itself was performed in the latter part of 2008 and the early part of 2009.

[2] In their preparation for trial both parties retained experts to comment on the adequacy of the work done by the plaintiff and the cause of water leakage which was observed after installation of the new roof. Both causation and damages are contested issues at trial. The plaintiff’s position is that the water damage complained of by the defendant existed prior to the installation of the new roof and that any continued leaking was caused by old skylights which the defendant chose not to repair when the new roof was installed. The plaintiff retained Mr. Michael Flynn (“Mr. Flynn”) of Rochon Engineering. The defendant retained Mr. Doug Fishburn (“Mr. Fishburn”). Mr. Fishburn prepared at least two reports. The plaintiff brought a motion to exclude the admission of any expert opinion being adduced by Mr. Fishburn and other experts retained by the plaintiff. In support of their objection the plaintiff relies on the fact that the reports were not delivered by the defence until July 17, 2013 which is beyond the deadline which was set for delivery of the reports. In addition, some of the reports or portions of them rely upon deconstructive testing which was conducted in the absence of the plaintiff’s expert and an objection was raised on this basis as well.

[3] A voir dire was held during the course of the trial to determine the admissibility of the expert opinions in question. At the conclusion of the voir dire I orally advised counsel of my decision. I ruled that the evidence of Mr. Fishburn and Edward Sheridan (“Mr. Sheridan”) as outlined in the report dated July 10, 2013 relating to the building design would be admissible. However, I further ruled that opinion evidence which is based on deconstructive testing which was performed after Mr. Flynn left the site of the deconstructive testing was not admissible. I advised counsel that I would be providing detailed written reasons for my ruling. The following are my reasons for the rulings.

Background and Chronology

[4] This action has a lengthy history. The following is the relevant chronology:

(a) Statement of Claim issued June 8, 2009;

(b) August 9, 2012 - at a pre-trial Justice Boswell made the following endorsement:

Further pre-trial held. The defendant intends on removing the existing roof in order to better assess the outstanding damages. A further experts report is anticipated after that step is taken. The pre-trial is adjourned to a date to be fixed before me, through the trial coordinator’s office, once the roof is deconstructed and an opinion formed about damage and causation. In the meantime:

1. The defendant shall answer outstanding undertakings by September 1, 2012.

2. The defendant shall notify the plaintiff, through counsel, of scheduled work on the roof and/or mould remediation and shall accommodate reasonable attendance of the plaintiff’s expert during any such demolition or remediation work.

3. If remediation work has not been commenced by September 30, 2012 the plaintiff’s shall be at liberty to arrange a further pre-trial.

(c) March 22, 2013 - a further pre-trial is held at which point it is noted that the defendant had not been able to complete the destructive testing. The matter was traversed to the May, 2013 trial sittings;

(d) May 8, 2013 - counsel for the defendant writes to the plaintiff’s counsel advising that the roof panels on the defendant’s residence will be removed on May 14, 2013 commencing at 9 a.m.;

(e) May 14, 2013 - Mr. Flynn attends at the defendant’s residence on the morning of May 14, 2013 and is present as destructive testing by Mr. Fishburn on the defendant’s roof takes place. Mr. Flynn leaves in the early afternoon following which further destructive testing is conducted by Mr. Fishburn;

(f) May 24, 2013 - this action was called for trial. Counsel for the defendant advised that she intends to seek an amendment to the counter claim. The endorsement of Justice Mullins indicates that the matter was stood down to allow time for the defendant’s counsel to prepare a draft amended pleading which sought to increase the amount claimed in the counter claim from $75,000 to $150,000. The plaintiff then sought an adjournment of the trial. The trial was adjourned to the next sittings in November and the defendant was ordered to pay costs thrown away by the plaintiff fixed at $8,000 plus HST. The adjournment was stated to be peremptory to both parties. In addition, Justice Mullins set out a schedule for delivery of further pleadings. Finally the defendant was ordered to deliver its fresh expert reports within 45 days (i.e. before June 24, 2013);

(g) July 17, 2013 - defendant’s counsel delivers a series of expert reports. There is an expert report dated July 10, 2013 from Mr. Fishburn and Mr. Sheridan. There is also a report from Pretium Anderson dated July 3, 2013. Finally, there is a supplemental report of Mr. Fishburn which relies at least in part on deconstructive testing which was conducted on May 14, 2013 after Mr. Flynn’s departure from the premises;

(h) November 15, 2013 - a notice of motion was brought by the defendant dated November 15, 2013 returnable before the trial judge. The motion sought orders permitting the filing of an amended statement of defence of the defendant which had previously been served on June 28, 2013 and validating the service of the expert report of Mr. Fishburn dated July 11, 2013;

(i) November 26, 2013 - defence counsel wrote to the plaintiff’s counsel referencing concern expressed by the plaintiff that Mr. Flynn was not present at the time of further deconstructive testing at the defendant’s property. Defence counsel advised that if Mr. Flynn would like to have an additional opportunity for an inspection of the defendant’s residence this would be arranged by the defendant’s counsel. There is no follow-up by the plaintiff to this offer;

(j) November 2013 - the case was not called during the November sittings of the court. For reasons that are not entirely clear the defendant’s motion was put before Justice Howden as a basket motion. Justice Howden noted that the trial did not proceed and the motion was therefore moot. Therefore he dismissed the motion as being moot without any consideration of the merits; and

(k) May 26, 2014 - this matter was called to trial and the trial commenced on that day. During the course of the trial the plaintiff called Mr. Flynn as an expert witness and he gave evidence with respect to his opinions and observations relating to the deconstructive testing up until the time he left the defendant’s residence at around 1:30 or 2 p.m.

Initial Objection by the Defence to the Plaintiff’s Motion to Exclude Expert Opinion

[5] Initially during their argument the defendant took exception to the plaintiff’s motion to exclude any expert opinion on the basis that the reports themselves had not been filed as part of the evidence on the voir dire. I reject the defence position in this regard. During the course of the voir dire both parties were well aware that the plaintiff was objecting to the introduction of evidence contained in expert reports which were delivered late and which were based on destructive testing conducted after the departure of Mr. Flynn from the premises. In my view, therefore, the defendant has not suffered any prejudice by the failure of the plaintiff to file the reports themselves. The plaintiff’s position is that the reports were not filed because the plaintiff did not wish this court to be influenced by reports which contained evidence which was the subject matter of their objection. In my opinion, it would have been appropriate for the plaintiff to put the actual reports in question before the Court as the Court is expected to make a distinction in considering the merits of the case between admissible and inadmissible evidence. Having said that I do not view the objection by the defendants as being anything more than a technicality which does not go to the merits of the dispute. Rule 52.10 provides that where, through accident, mistake or other cause, a party fails to prove some fact or document material to the party’s case, a judge may proceed with the trial subject to proof of the fact or document afterwards at such time and on such terms as the judge directs. I therefore exercise my discretion under Rule 52.10 to permit the filing of the reports, if necessary, following release of my decision. If there is any dispute as to admissibility which cannot be resolved by counsel having received my decision, counsel may make further submissions for my consideration following filing of the reports.

The Reports in Issue and the Objections Raised by the Plaintiff

[6] The plaintiff objects to the admissibility or reliance upon the opinions expressed in the following reports which as noted above have not been filed with the Court:

(a) A report of Mr. Fishburn and Mr. Sheridan dated July 10, 2013 with respect to the building designs. The plaintiff objects to reliance by the defendant on this report because it was delivered on July 17, 2013 beyond the time limit prescribed by Justice Mullins in her endorsement dated May 24, 2013. This is the only basis for the objection and plaintiff’s counsel acknowledged that the issue of deconstructive testing is not an issue in relation to this report;

(b) A report from Pretium Anderson Building Engineers dated July 3, 2013. The plaintiff objects to reliance by the defendant on this report on the basis that it was delivered on July 17, 2013 and the report is also based on the report of Mr. Fishburn and his opinions in relation to the deconstructive testing that took place after Mr. Flynn’s departure from the defendant’s premises;

(c) The plaintiff objects to reliance on that portion of Mr. Fishburn’s report dealing with deconstructive testing after Mr. Flynn’s departure on the afternoon of May 14, 2013 on the basis that the report itself was delivered on July 17, 2013 and that the opinions relate to deconstructive testing performed by Mr. Fishburn after Mr. Flynn left the premises on May 14, 2013.

Ruling Regarding the Report of Mr. Fishburn and Mr. Sheridan Dated July 10, 2013 With Respect to the Building Design

[7] Rule 53.03 sets out the requirements for a party who intends to call an expert witness at trial and the requirement to deliver an expert report in advance of trial. An expert report is normally expected to be served not less than 60 days before the pre-trial conference. However, Section 53.03(4) provides that the time for service of a report may be extended by the judge at a pre-trial conference or in a case conference or by the Court, on motion. In this case Justice Mullins extended the time for delivery of the defendant’s expert reports to June 24, 2013 in her endorsement on May 24, 2013. The defendant served its reports approximately three weeks late. In the context of the history of this action this does not appear to be a significant delay. The plaintiff is not able to point to any prejudice as a result of the late delivery of the expert reports. They have had the reports for almost a year at this point in time. Rule 53.03(3) provides that an expert witness may not testify 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 report served under this rule. However, Rule 53.08(1) provides that if evidence is admissible only with leave of the trial judge under Rule 53.03(3), “leave shall be granted on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial”. The plaintiff acknowledges that there is no prejudice which they can point to as a result of the late delivery of the expert reports. Similarly, I do not believe there will be any undue delay in the conduct of the trial. Given that the delay in service is relatively short and the reports were delivered almost a year ago I grant leave to permit the defendant to rely upon the report of Mr. Fishburn and Mr. Sheridan dated July 10, 2013.

The Evidence Relating to the Deconstructive Testing Conducted After Mr. Flynn’s Departure on the Afternoon of May 14, 2013

[8] There is a major conflict between the plaintiff and defence evidence with respect to the circumstances leading to Mr. Flynn’s departure from the defendant’s premises on the afternoon of May 14, 2013. Mr. Flynn testified on the voir dire that prior to his leaving the premises he was lead to believe that the deconstructive testing was complete and that no further deconstructive testing would be performed. To confirm that the deconstructive testing was complete he states that he asked the group “Are we done?” and one of them, he believes it was Mr. Duric, confirmed that the deconstructive testing on the home was complete and that he could leave. He further testified that it was not until July, 2013, when he was provided with a copy of Mr. Fishburn’s second report dated July 11, 2013, that it became apparent to him that further deconstructive testing had occurred following his departure from the property.

[9] Mr. Flynn further testified that he has reviewed Mr. Fishburn’s photographs and reporting on the observations made by him during the private inspection but that such a review would have been more complete if he had been included in the private deconstructive testing and inspection that occurred. He went on to say that if he had been advised that further deconstructive testing was going to occur he would have remained on site for all of the deconstructive testing pursuant to his duty to the Court as an expert and his retainer by the plaintiff. He notes that he has now lost the benefit of ensuring that the private deconstructive testing was handled appropriately and that the evidence gathered at the time of deconstruction was not tampered with either intentionally or on unintentionally.

[10] In cross-examination, Mr. Flynn acknowledged that he was not aware of the defence offer to have him revisit the site at a later time. He agreed that he could have asked for an opportunity to do further destructive testing at the defendant’s premises.

[11] Mr. Flynn also acknowledged on cross-examination that while he was on site on May 14 he did tell the other people there that he had seen enough. However, this comment was in relation to those sections of the roof that had been opened up. There was no suggestion that other areas of the premises were going to be subject to deconstructive testing. He reiterated that he asked before he left, “Are we done?” and was told, “Yes”.

[12] In contrast to the evidence of Mr. Flynn Mr. Duric gave evidence at the voir dire. In his evidence Mr. Druic testified that Mr. Flynn left his property at around 1:30 or 2 p.m. indicating that he had seen enough. To the best of his knowledge Mr. Fishburn did not at any time indicate that he was going to stop working on the deconstructive testing nor was there any conversation that he could hear that indicated Mr. Fishburn’s work was over.

[13] Mr. Roberto Campoli (“Mr. Campoli”) also gave evidence at the voir dire. He is a friend of Mr. Duric who was assisting with the removal of the roof panels and other deconstructive testing which was performed on May 14. In his evidence Mr. Campoli testified that in the early afternoon Mr. Flynn indicated that there was nothing more that he could do and left.

[14] After Mr. Flynn left Mr. Campoli recollected that Mr. Fishburn was still in a hole that had been cut into the roof area. At that point Mr. Campoli was not aware as to whether further deconstructive testing would occur or not. However, after Mr. Flynn left Mr. Fishburn continued to cut more holes in the lower portion of the roof. The work finished sometime later at about 5 or 6 p.m.

[15] As to the events which occurred at the defendant’s premises on May 14 I prefer the evidence of Mr. Flynn where it conflicts with the evidence of Mr. Duric and Mr. Campoli for the following reasons:

(a) While Mr. Campoli did not hear Mr. Flynn ask “Are we done?” he did agree that there were no discussions about further testing when Mr. Flynn left the premises. A reasonable inference from this evidence is that Mr. Flynn left because he thought the testing had been completed;

(b) There is no evidence to suggest that Mr. Flynn was told that further deconstructive testing was going to take place;

(c) Mr. Flynn was retained by the plaintiff to attend at the defendant’s premises and observe the deconstructive testing. He did attend on the morning of May 14 and there would be no reason for him to leave early before all of the testing was completed, especially when he would be well aware of the significance of this testing to his client in the context of his own expert opinions and those of Mr. Fishburn; and

(d) Mr. Fishburn who is the expert hired by the defendant was not called as a witness at the voir dire. Both Mr. Campoli and Mr. Duric agreed that Mr. Fishburn was taking the lead in deciding what destructive testing would occur on May 14. His evidence as to what his intentions were with respect to deconstructive testing at the time Mr. Flynn left and what discussions took place at that time are clearly very important. As an expert hired by the defendant Mr. Fishburn’s attendance would be within the control of the defendant. I was made aware at the commencement of trial that Mr. Fishburn was dealing with the loss of a close family member and did not intend to be in court this week. While the Court is sympathetic to the personal circumstances of Mr. Fishburn his attendance in court during the voir dire would have been required for only a very brief period of time and it is hard to ignore the defendant’s failure to lead any evidence on the voir dire from Mr. Fishburn.

[16] Based on the evidence adduced at the voir dire I conclude that Mr. Flynn was induced to leave the defendant’s premises in the early afternoon of May 14 by either express or alternatively implied representations by either Mr. Fishburn or the defendant that the deconstructive testing had been completed.

Analysis

[17] As noted above the defendant’s expert reports were delivered beyond the time stipulated in the order of Justice Mullins and therefore leave is required pursuant to Rule 53.03(3). Rule 53.08(1) provides that leave shall be granted unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial.

[18] In addition the Court has a residual discretion which it must exercise in connection with expert opinion evidence. In R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9 the Supreme Court of Canada set out the four criteria which must be satisfied in determining the admissibility of expert opinion evidence. There is no serious issue in this case that those criteria have been satisfied. However, it is clear that evidence which is logically relevant may be excluded if its probative value is overborne by its prejudicial effect. Thus, I must still consider under the general admissibility rules for expert evidence the probative versus the prejudicial effect of the evidence which is sought to be excluded.

[19] I am satisfied that the prejudicial effect in this case is substantial and outweighs its probative value. I therefore conclude that expert opinion relating to the deconstructive testing which took place after Mr. Flynn left the defendant’s premises ought to be excluded. This evidence was obtained in clear violation of the order of Justice Boswell. The rationale underlying Justice Boswell’s order is clear. Deconstructive testing had the potential to irrevocably alter in a substantial way the condition of the roof and any other portion of the home affected by the water leakage. It was therefore important for the plaintiff to have an opportunity for their expert to be present at the time any deconstruction took place. Without this safeguard the defendant’s expert would not be able to fairly assess whether the deconstructive testing was handled appropriately and to ensure that the evidence gathered was not tampered with either intentionally or unintentionally. Therefore by proceeding with further deconstructive testing after Mr. Flynn left Mr. Fishburn deprived the plaintiff of its opportunity to fairly assess whether any further testing was conducted appropriately and to lead evidence which could call into question the adequacy of the further testing and the opinions which flow from that testing. This also significantly weakens the probative value of that evidence.

[20] The offer by the defendant in November to have Mr. Flynn re-attend to conduct his own further testing does not address the fundamental unfairness which occurred here. Once the deconstructive testing had occurred the damage was done and there was no way to know whether the further deconstructive testing was conducted appropriately or whether the evidence which remained had been changed either intentionally or unintentionally so as to make the further investigation unreliable.

Ruling

[21] For the above reasons I rule that the expert evidence relating to the deconstructive testing conducted at the defendant’s premises following the departure of Mr. Flynn from those premises is inadmissible.

[22] Counsel has been asked to review the expert reports bearing in mind that these have not been produced to the Court for review at the present time. If there is an issue as to what evidence is properly admissible and what evidence is not properly admissible in accordance with this ruling the reports should be provided to the Court and I will receive further argument on any issues which remain in dispute.

Justice McKelvey

Released: June 2, 2014