Yelle v. Calypso Park Inc., 2015 ONSC 1317
COURT FILE NO.: 11-51908
DATE: 20150302
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DANIELLE MARIEANNE YELLE and PIERRE BERNARD YELLE
Plaintiffs
– and –
CALYPSO PARC INC. and DEVELOPMENTS LIMOGES INC.
Defendants
Éliane Lachaîne/Dani Grandmaître, for the Plaintiffs
Lawrence Greenspon, Sally A. Gomery and Jenna Anne de Jong, for the Defendants
HEARD: February 25, 2015
DECISION DISQUALIFYING THE PLAINTIFF’S EXPERT
beaudoin j.
[1] This action relates to a “slip and fall” incident which occurred at the Defendants’ recreational waterpark facility on July 11, 2010. The incident took place on the blue painted concrete beach at the entrance to an attraction known as the “Jungle Run.” The parties consented to bifurcate the issues of liability and damages. The trial commenced on February 24, 2015. The Plaintiffs had proposed to call as an expert witness, one Peter R. A. Daley, a mechanical engineer. A voir dire was conducted and at the conclusion, I disqualified Mr. Daley from giving expert evidence. These are written reasons supplement to the oral reasons given at the conclusion of the voir dire.
[2] Plaintiff’s counsel offered an overview of their case in her written opening statement. There, she indicated that Mr. Daley would be able to explain that the water flowing through the Jungle Run is not clean. According to the Plaintiffs, debris and dirt were floating on the surface of the water and these materials found themselves on the cement beach of the Jungle Run causing the surface to be slippery. It was expected that Mr. Daley would testify that the water filtration system in place was not working efficiently because it was submerged under water. His evidence would disclose that the system was not designed to be underwater.
[3] The Defendants made it clear that Mr. Daley’s expertise would be challenged and that a voir dire would be necessary. At the outset, Plaintiff’s counsel was asked to clarify the areas where Mr. Daley’s opinion would be sought. The case law requires that these areas need to be defined with precision[1]. After some discussion, it was agreed that Mr. Daley would be called to testify in two areas:
Whether the water filtration system in place and supporting the Jungle Run feature was designed to be underwater.
The nature of the contaminants that would be in the water as a result of the filtration system not operating as designed.
[4] It was acknowledged that Mr. Daley did not have any expertise with respect to the operation of the pool itself nor could Mr. Daley testify as to the “slipperiness” of the water.
[5] Mr. Daley’s curriculum vitae (“CV”) was put into evidence. He has a mechanical engineering degree from the University of Waterloo obtained in 1984. He also holds a Masters of Business Administration from the University of Ottawa which he obtained in 1994. His CV outlines his specialized professional competence in the following areas:
• failure analysis, accident reconstruction, fire and explosion investigation
• mechanical, machines and mechanism design
• metallurgy: corrosion, fatigue and structure of metals
• heating, ventilating and air conditioning system
• past research includes combustion theory and advancement in domestic water heating technology.
[6] He was taken through his professional and work experience and he testified that he was mostly involved in insurance claims for the legal profession. He has extensive experience in motor vehicle accident reconstruction. He indicated that he had been involved in 200 claims involving swimming pools, but in response to questions from me, it was clear that these swimming pools were backyard pools, the majority of which were above ground pools. He had no experience in dealing with large commercial pool operations or with aquatic park features such as the jungle run.
[7] He was taken through his professional associations and he highlighted his membership in the American Society of Heating, Refrigerating and Air-conditioning Engineers Inc. (ASHRAE). He viewed this membership and the manuals that he obtained as being relevant to his analysis in this case. He indicated that he was familiar with water filtration systems.
[8] He was qualified to give opinion evidence on 49 occasions. He admitted that he had never been asked to testify about a pool claim and that only three cases involved a “slip and fall”.
[9] In cross-examination, each of the 49 cases he had listed was reviewed. Where he had any recollection of the cases, almost all of these cases dealt with motor vehicle accident reconstructions or fire investigations. As noted earlier, only three cases involved a slip and fall. He conceded that none of these cases involved an aquatic park; none involved the design of the filtration system, and none involved an analysis of the water in a pool.
[10] He conceded that ASHRAE does not deal with the design of filtration systems for water attractions or with the constituents of dirty water. He admitted that he did not belong to any of the following Associations:
• the APSP; the Association of Pool and Spa Professionals,
• the NSPI; the National spa and Pool Institute,
• the IAAPA; the International Association of Amusement Parks and Attractions;
• the World Water Parks Association,
• the NRPA; the National recreation and Parks Association.
[11] In most cases, he conceded that he did not belong to these organizations by reference to the acronym alone without even knowing what association was being referred to. He also conceded that he did not hold a pool construction license. He was taken through his continuing education activities and admitted that none of these sessions related to the design of water filtration systems with respect to water parks and that none of these dealt with the constituents of “dirty water.”
[12] He was then taken to the section of his CV called “Selected Papers Lectures and Seminars” where he was a speaker. These mostly dealt with fire investigations, motor vehicle accident reconstruction or product liability situations. None of these involved the operation of the water filtration system at a recreational facility such as the one in question in these proceedings.
[13] He was taken to a paper he had written in 1987 entitled: “A Technical Approach to Investigating Slip and Fall Accidents” that was reported in the Advocate’s Society Journal in December 1988. When questioned as to whether or not that paper had been peer-reviewed, Mr. Daley claimed that the presentation of the paper itself was a form of peer review. The paper discussed three approaches to measuring the co-efficiency of friction. He admitted that he did not conduct an analysis of the surface of the area where Mrs. Yelle fell. He explained that he did not attend the site until three years after the incident, but on the day he did attend, the surface of the blue painted area was in fact slip resistant.
[14] Plaintiff’s counsel argued that Mr. Daley had a lot of experience with respect to mechanical systems and with respect to slip and fall incidents, and that his evidence could be helpful to the court.
[15] I agreed with Defendant’s counsel that this is not the test. The test for the admissibility of expert opinion is set out in the seminal decision of R. v. Mohan 1994 80 (SCC), [1994] 2 S.C.R. 9 at para. 17. Admission of expert evidence depends on the application of the following criteria:
relevance
necessity
the absence of any exclusionary rule, and
a properly qualified expert
[16] In this case, I concluded that Mr. Daley is not a qualified to give evidence with regard to the two specific areas upon which he was being offered as an expert. He has not attended any courses on these topics. He has no membership in any association that deals with the design of water filtration systems with respect to a pool of this size or with the operation of any water parks. He did not present any papers on the subjects and he has never been qualified to give evidence on these topics. While he may be an expert in some areas; that expertise does not apply in this case.
[17] Furthermore, I concluded that any evidence he could offer did not meet the test of necessity. The case law cited by the Defendants makes it clear that the evidence must be more than “helpful.”[2]
[18] Furthermore, it was also unclear how the evidence with respect to the design of the water filtration system and the possibility of contaminants in the water would assist the court in finding that this lead to the creation of some unforeseen hazard or condition in the location where the Plaintiff, Danielle Yelle fell on July 11, 2010.
[19] It was for these reasons that Mr. Daley was not qualified as an expert.
Mr. Justice Robert N. Beaudoin
Released: March 2, 2015
CITATION: Yelle v. Calypso Park Inc., 2015 ONSC 1317
COURT FILE NO.: 11-51908
DATE: 20150302
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DANIELLE MARIEANNE YELLE and PIERRE BERNARD YELLE
Plaintiffs
– and –
CALYPSO PARC INC. and DEVELOPMENTS LIMOGES INC.
Defendants
Decision disqualifying the plaintiff’s expert
Beaudoin J.
Released: March 2, 2015
[1] Dulong v. Merrill Lynch Canada Inc. (2006) O.R. (3d) 378 (Ont. Sup Ct.) at para. 4
[2] Chartier v. Greaves [2000] O.J. No. 5520 (Ont. Sup. Ct.); R. v. Abbey 2009 ONCA 624, (2009) O.R. (3d) 330