MacKay v. MTCC No. 985, 2015 ONSC 958

COURT FILE NO.: CV-14-509996

DATE: 20150212

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Sharon MacKay and Thomas Cheney, Applicants (Responding Parties)

AND:

Metropolitan Toronto Condominium Corporation No. 985, Respondent (Moving Party)

BEFORE: Mr. Justice Graeme Mew

COUNSEL: Natalie Schernitzki, for the Applicants

Jonathan H. Fine, for the Respondent

HEARD: 3 November 2014 and 6 February 2015 at Toronto

ENDORSEMENT

[1] The respondent seeks to strike out parts of an affidavit of Thomas Cheney sworn on 14 August 2014 in connection with two concurrent motions that are pending in two concurrent applications involving the same parties.

[2] The parties are engaged in a dispute over responsibility for the incursion of cigar smoke into the applicants’ unit in the respondent’s condominium building and various related issues that have arisen in connection with the applicants’ unit (see e.g. 2014 ONSC 2863).

[3] The condominium corporation's application (CV-14-507161) involves a request to enter Ms. MacKay and Mr. Cheney's unit to complete certain repairs, and to remove allegedly illegally installed humidifiers.

[4] Ms. MacKay and Mr. Cheney have brought an application (CV-14-509996) for:

a. an order that they have not breached the condominium corporation's declaration with respect to the humidifiers;

b. an order requiring that the condominium corporation not mention various matters in any status certificate;

c. an order that the condominium corporation has breached its duty to maintain and repair Ms. MacKay and Mr. Cheney's unit since a previous hearing before me in April 2014; and,

d. a mandatory order that the condominium corporation deliver an engineer's report stating that all work has been done and that smoke will not migrate into their unit.

[5] I have been assigned to case manage the proceedings relating to the dispute over Ms. MacKay and Mr. Cheney’s condominium unit, including the two applications in which Mr. Cheney’s affidavit has been tendered as evidence.

[6] During the course of argument counsel for Ms. MacKay and Mr. Cheney advised the court that certain deletions of text in various paragraphs of the Cheney affidavit had been agreed. This endorsement addresses the balance of the objections raised by the condominium corporation.

[7] Each objection, a summary of the position taken by the parties, and my disposition, is set out in tabular form in the following paragraphs.

[8] Paragraph 3:

"persistent and large scale" and "very strong"

MTCC: Opinion evidence, legal argument and scandalous. "Persistent" means "all the time'.

MacKay/Cheney: It is a lay person's perspective. At worst embellishment which court can ignore if it wants to. Expressions of opinion by a lay witness are not necessarily inadmissible. The court should consider the "experiential capacity" to form the relevant opinion: Lockridge v Ontario (Director, Ministry of the Environment), 2012 ONSC 2316 at para 106

Disposition: Disposition: Read in the context of the affidavit as a whole, the court is able to assess the extent to which, if at all, weight should be given to these words. Words not struck out.

[9] Paragraph 4:

[second and third hand smoke] “which is known to be carcinogenic”

MTCC: Opinion; hearsay

MacKay/Cheney: Lay opinion. Reflects deponent’s belief and source of his concern.

Disposition: Comment reflects deponent’s belief (which may or may not be well-founded). Words not struck out.

[10] Paragraph 5:

“After a great deal of effort on our part ...” [condominium corporation has done some work]

MTCC: Opinion evidence.

MacKay/Cheney: Statement of deponent’s belief; commentary.

Disposition: This is the deponent’s perspective. It is not opinion evidence. Words not struck out.

[11] Paragraph 7:

“The emotional stress and inconvenience of not being able to live in our home, having to reside in a hotel and putting up with a Board of Directors whose attitude towards us is hostile, was such that after 10 months, with no end in sight… ” [was such that we bought another residence]

MTCC: Opinion evidence, scandalous and legal argument.

MacKay/Cheney: It is a statement of belief. Alternatively, if regarded as an opinion, it is conclusion is a conclusion that people with ordinary experience are able to reach.

Disposition: This is the deponent’s perspective. It is not opinion evidence. Words not struck out.

[12] Paragraph 8:

“... we were told then, and still believe, since the nature of the renovations was such that they were entirely within the Unit and did not affect the common elements, approval of MTCC's Board of Directors was not required under the terms of the condominium documents”

MTCC: Hearsay. Source of information and belief not specified as required by Rule 39.01(4)

MacKay/Cheney: Source is disclosed – the “designers and contractors” who completed the renovations.

Disposition: Goes to the deponent’s state of mind. The statement is not admissible as proof of the correctness or otherwise of the deponent’s belief. Words not struck out.

[13] Paragraph 9:

“MTCC seemed to adopt an evasive and hostile attitude toward us” and "the MTCC representatives peeked around the whole Unit in a way that seemed a little odd to me, even at the time"

MTCC: Opinion evidence; speculation; scandalous.

MacKay/Cheney: The attitude and behaviour of MTCC is an issue. Statement is that of deponent’s belief and is relevant.

Disposition: The deponent is attesting to his perspective. Words not struck out.

[14] Paragraph 12:

"...which do not touch or affect the common elements. The humidifiers are as benign as any other consumer appliance available for purchase at the local appliance store, which any reasonable person could immediately ascertain at a glance."

MTCC: Legal argument; opinion evidence.

MacKay/Cheney: This repeats what is said in a letter which is attached as an exhibit. It is an opinion which a person with ordinary experience could make (Lockridge, para. 106).

Disposition: The deponent states that the humidifiers do not touch or affect the common elements. That is his belief. He may or may not be correct. The words “which do not touch or affect the common elements” should not be struck. The next sentence is argument and is not properly the subject of evidence from this witness. It should be struck.

And

“… MTCC used that opportunity to go on a fishing expedition within the Unit to search for supposed by-law and rules infractions which was not the purpose for which the consent to access was given. Furthermore, MTCC was using the ordinary appliance humidifiers to attempt to create a petty diversion while it did nothing to repair the obvious problems with the common elements and to prevent an obvious health hazard”.

MTCC: Legal argument; opinion evidence; scandalous.

MacKay/Cheney: This repeats what is said in a letter which is attached as an exhibit. It is an opinion which a person with ordinary experience could make (Lockridge, para. 106).

Disposition: This is essentially argument. It is not properly the subject of evidence and is not helpful to the court. Words should be struck out.

[15] Paragraph 15:

"After learning of the Second Application, Ms. Schernitzki retained Izaak de Rijcke, a licensed Ontario Land Surveyor also licensed by the Law Society of Upper Canada to practice law in the Province of Ontario and certified by the Law Society of Upper Canada as a Specialist in Real Estate Law, to opine on

whether Sharon and I had breached Article 10(f) of MTCC 's Declaration by installing, without the prior written consent of MTCC's Board of Directors, the humidifier in the master bathroom and the humidifier in the laundry room. Attached hereto and marked as Exhibit "B" is a true copy of Mr. de Rijcke's report, including a copy of his Curriculum Vitae and Acknowledgement of Expert's Duty Form, wherein he concludes that the humidifiers are entirely within the boundaries of the Unit and that by installing them without permission we have not breached Article 10(f) of MTCC's Declaration"

MTCC: The report of Mr. de Rijcke is essentially a legal opinion, albeit with a small surveying component, which is being tendered on the very issue the court has to decide.

MacKay/Cheney: Mr. de Rijcke’s report satisfies the Mohan criteria for expert evidence. He opines on subjects that are outside the knowledge of the typical trier of fact. In Holding Tusculum B.V. c. S.A. Louis Dreyfus & Cie, 2006 QCCS 2827, at para. 27, the Quebec Superior Court held that “It is now generally accepted that both ordinary witnesses as well as expert witnesses may express opinions on the “ultimate issue” without thereby becoming disqualified”. The fact that the expert report is attached to Mr. Cheney’s affidavit does not make it inadmissible.

Disposition: An expert report being tendered on an application should be put in by the expert swearing an affidavit which sets out his/her opinion in full, or a short covering affidavit which attests to the truth of an attached, unsworn, report. In either case a completed Form 53.03(1) Acknowledgment of Expert’s Duty should also be attached. Those parts of the report addressing surveying issues are of assistance to the court, but Mr. de Rijcke’s opinion on whether Ms. MacKay and Mr. Cheney have breached MTCC’s declaration would appear to usurp the judicial function. As a practical matter it is difficult to separate the “surveying” and “ultimate issue” elements of the report. It should not, accordingly be excluded (if presented in proper evidentiary form), although such a determination is without prejudice to any decision on admissibility which the judge hearing the application might make. Paragraph 15 is therefore struck out (together with Exhibit B) without prejudice to Mr. de Rijcke’s report being re-filed in an acceptable way.

[16] Paragraph 16:

"I am advised by other residents, including a former President of MTCC, and do verily believe that MTCC issued and/or threatened to issue Status Certificates with negative comments to prospective purchasers after comments to prospective purchasers after taking photographs of units without resident consent, with the effect of making it very difficult for affected unit owners to sell their units at fair value. Although I do not have personal knowledge of such instances, I know that there is a climate within the building and an unspoken awareness that an owner who makes issues for MTCC does so at his economic risk".

MTCC: Total hearsay. Although identity of “former President” has now been provided, he is deceased. Evidence is prejudicial. To the extent that the evidence is speculation, it should still not be admissible because its prejudicial effect (especially as a source of the information is deceased) outweighs its probative value.

MacKay/Cheney: Evidence is more of a feeling or a statement of a layperson’s opinion than a statement of fact. Such speculation is “likely to be harmless” and its relevance, if any, can best be considered by the judge hearing the application: Lockridge, at para 122.

Disposition: As stated by Harvison Young J. in Lockridge, at para 122, “[t]his is the sort of objection that can be best assessed by the [application judge], in light of the determinations made on relevance to particular issues at that point”. Words not struck out.

[17] Paragraph 17:

"On or about June 10, 2014 I am advised by Ms. Schernitzki and do verily believe that, while waiting for Mew J. to join a case conference call, Mr. Rutherford volunteered in a sarcastic tone that reference by MTCC to our claims against MTCC in a Status Certificate was a "good way" to subvert the sale of the Unit by the owners at market value. I am advised and do verily believe that Ms. Schernitzki understood Mr. Rutherford's statement to be a veiled but clear threat that MTCC was willing to subvert the sale of the Unit by us by inserting particulars about the dispute with us in a Status Certificate in a way which would cause purchasers to rescind and/or require a price discount from us. In my view, said statement by Mr. Rutherford validates my understanding that MTCC will inflict punishment on owners who are

perceived to be difficult or out-of-line".

MTCC: The paragraph should be excluded as it contains the evidence of Ms. Schernitzki, counsel for Ms. MacKay and Mr. Cheney. The conversation occurred during the course of discussions that took place immediately prior to a case conference which should be regarded as without prejudice.

MacKay/Cheney: Clients have instructed that this evidence is presented. The conversation was not without prejudice.

Disposition: The deponent of an affidavit should not act as counsel and rely upon the affidavit. That principle should be extended where counsel is not the deponent but is the source of the information relied upon by the deponent in relation to a key factual matter: Manraj v. Bour (1995), 44 C.P.C. (3d) 111 (ON Ct. Gen. Div). Further, the evidence relates to counsel to counsel discussions amounting to advocacy and positioning and should not be regarded as with prejudice. The paragraph is struck out.

[18] Paragraph 22:

"In addition to expressing our opinion that it was shortsighted to continue to resist consultation among the engineers, despite Mew, J 's conclusion at paragraphs 65 and 71 of the Reasons ... "

MTCC: This narrative recites the position taken in a lawyers’ letter (Exhibit “F”). It is presented as opinion evidence.

MacKay/Cheney: The context of these words is that they are part of a narrated chronology of events.

Disposition: The words recite the contents of a letter exhibited to the affidavit, to which exhibit objection is not taken. The words complained of are likely redundant (because they can be referred to by looking at the exhibit) but are not sufficiently offensive to warrant striking. The applications judge can decide whether they are of any relevance or assistance to the court. Words not struck out.

[19] Paragraph 23:

"It was decided by the representative of Nancam and Pinchin that they would have to continue to investigate, with the result that restoration of the drywall ceilings in the bathrooms by Toronto Decorating on May 29, 2014 was cancelled".

MTCC: Hearsay. Furthermore, the statement “it was decided” is objectionable. That is the deponent’s opinion.

MacKay/Cheney: The deponent was present during these discussions and that is his recollection of what was decided. A letter summarising what was said is attached as an exhibit.

Disposition: The evidence is what the deponent says he saw, heard and understood. There are similar references in a letter (Exhibit “H”) to which objection is not taken. Words not struck out.

[20] Paragraph 25:

"There was also general recognition among those present on June 2, 2014 that the disequilibrium in pressure between the two units was drawing air from unit 313 into the Unit, and that this disequilibrium ultimately

had to be addressed as part of the problem."

MTCC: Hearsay. The deponent should not be reciting what the experts thought.

MacKay/Cheney: The reference is to a meeting which is documented in reports that will be before the court. The judge hearing the applications can determine whether Mr. Cheney’s assessment of what the experts said at the attendance on 2 June 2014 is accurate.

Disposition: The evidence is what the deponent says took from the meeting. Reports will be available to the court which will address what came out of the 2 June 2014 attendance. Words not struck out.

[21] Paragraph 29:

"To the best of my knowledge, information and [belief] from June 5, 2014 to July 18, 2014 no further remedial work was undertaken or attempted, including the work which I had been told by Mr. Brearton would be

undertaken to perform "pencil tests" or, if it was done, it was done in secret"

MTCC: This is opinion evidence and speculation.

MacKay/Cheney: This is Mr. Cheney’s understanding. If he’s wrong, evidence to that effect can be presented.

Disposition: The deponent is saying that as far as he knows nothing further was done in the time period specified. It is unobjectionable. Words not struck out.

[22] Paragraph 34:

"On or about June 17, 2014I am advised by Ms. Schernitzki and do verily believe that Mr. Rutherford told her for the first time, during a telephone case conference with Mew J and Jason Mangano, that MTCC would be amenable

to the engineers meeting to consult with respect to these matters and, on June 18, 2014, Mr. Rutherford called her to confirm his instructions. Ms. Schernitzki advised Mr. Rutherford that she was inclined to leave the matter of making arrangements to meet with the engineers but would discuss the same with Mr. Farkas to determine what information, if any, he would require in advance of the meeting and his availability and would follow

up with a letter. I am advised that Ms. Schernitzki and Mr. Rutherford spoke again on June 20, 2014 and during that telephone call Ms. Schernitzki advised Mr. Rutherford that she had discussed the matter with Mr. Farkas

and that he required some information in advance of the meeting but was available to discuss the matter on June 25-27, July 2 and 3, 2014. I am also advised that during that telephone call Mr. Rutherford agreed with Ms.

Schernitzki that Mr. Farkas would need all reports and test results and observations made by Pinchin since they were hired in early April 2014 and said that he would discuss the same with Pinchin. Attached hereto and marked as Exhibit "P" is a true copy of a letter dated July 31, 2014 summarizing these telephone calls between Ms. Schernitzki and Mr.

Rutherford."

MTCC: This is Ms. Schernitzki’s evidence. It relates to ongoing discussions aimed at dispute resolution and should also be excluded on that basis.

MacKay/Cheney: Clients have instructed that this evidence is presented. The conversation was not without prejudice.

Disposition: It would seriously inhibit the ability of lawyers to look for solutions – in this case relating to the possible collaboration of experts retained by the parties – if every conversation and other communication was to be regarded as with prejudice and liable to end up in evidence through one of the lawyers present recounting what was said to her client, the deponent. The communications should be regarded as without prejudice. Furthermore the principle articulated in Manraj v. Bour applies: counsel should not be a witness.

[23] Paragraph 38:

"I am advised by Ms. Schernitzki that, on or about July 18, 2014, she provided Mr. Farkas with a copy of the letter dated July 18, 2014 and Pinchin's report dated July 14, 2014 and instructed Mr. Farkas to contact Mr. Brearton. I am advised by Mr. Farkas that he spoke on the telephone with Mr. Brearton on July 24, 2014 and he asked Mr. Brearton to send him all test data and reports prepared since April 28, 2014 and Mr. Brearton agreed to do so. In addition, with respect to the pressurization in the units, Mr. Brearton did not want to comment on the pressurization issue since he is not an air circulation expert and I am advised by Mr. Farkas that the engineers agreed to have another conference call on either July 25 or 28 with Mr. Brearton's colleague, Bryn Jones, whose engineering speciality is air movement."

MTCC: This is contentious. It should only be in evidence if Mr. Farkas provides an affidavit incorporating or attaching his report.

MacKay/Cheney: The evidence of Mr. Farkas will be part of the record.

Disposition: Upon the undertaking by counsel to put a report from Mr. Farkas into evidence (through an affidavit incorporating or attaching his report), the words need not be struck.

[24] A revised affidavit which takes account of these rulings as well as the other agreed upon amendments should be delivered by 6 March 2015, together with any other affidavits relied upon by the moving parties in the pending applications. Any responding affidavits in the applications should be delivered by 2 April 2015. Cross-examinations (if any) should be completed by 1 May 2015. My judicial assistant will liaise with counsel regarding dates for a case conference in early May and a hearing date for the applications.

[25] The costs of this motion should be reserved to the judge hearing those applications in which the Cheney affidavit is tendered in evidence.

Mew J

Date: 12 February 2015