M.M. v. R.M., 2016 ONSC 7003

CITATION: M.M. v. R.M., 2016 ONSC 7003

BELLEVILLE COURT FILE NO.: FS-13-0193

DATE: 20161031

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

M.M.

Applicant

– and –

R.M.

Respondent

Heather Hansen/Jenna Beaton, for the Applicant

Steven Baldwin, for the Respondent

HEARD: October 28, 2016 (within the trial that commenced October 17, 2016)

DECISION ON VOIR DIRE

MINNEMA J.

[1] The respondent seeks to lead expert opinion evidence by Keith W. Shantz CPA-CA, CFP on all matters relating to the respondent’s income for spousal support purposes. That request is opposed.

Law

[2] Opinion evidence is presumptively inadmissible. Expert evidence is an exception. As set out in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at paragraph 19, the basic structure for the law relating to the admissibility of expert opinion as established in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, has two components. First, the proponent of the evidence must establish each of the following on a balance of probabilities: (1) relevance, (2) necessity in assisting the trier of fact, (3) absence of an exclusionary rule, and (4) a properly qualified expert. Second, if those threshold requirements are met, the trial judge must then conduct a cost-benefit/gate-keeping analysis and still exclude the evidence if the probative value of the opinion is overborne by its prejudicial effect.

Positions

[3] The respondent wants Mr. Shantz to be recognized as an expert to provide opinion evidence on (1) the respondent’s historical income, (2) the difference between the respondent’s income per his personal income tax returns and the actual income available to him, (3) comparisons of the net disposable incomes of the parties from 2013 to date, and (4) an opinion of the respondent’s income for 2016.

[4] The applicant has no difficulty with Mr. Shantz giving evidence along the lines of explaining the calculations he has made in support of the respondent’s position regarding income. She also has no difficulty with Mr. Shantz explaining the advice that he gave to the respondent and his businesses in the course of their dealings. However, she draws the line at Mr. Shantz being qualified to give an opinion to the court on what the respondent’s income should be for spousal support purposes. Referring to the Mohan threshold criteria, her position is that it is not necessary, an exclusionary rule applies with respect to timing, and that Mr. Shantz is not qualified.

[5] The issue is not whether Mr. Shantz can give opinions as a ‘participant expert’ relating to the subject matter of the litigation for a purpose other than the litigation: see Westerhof v. Gee Estate, 2015 ONCA 206 at paragraphs 62 and 82. That is conceded per the above paragraph. The objection is to Mr. Shantz being qualified as a ‘litigation expert’ to give an opinion for the very purpose of this litigation.

Evidence

[6] Mr. Shantz is a qualified accountant. He suffered a stroke in 2011 that very significantly reduced the number of clients he serves, however he is still the accountant for the respondent and his companies and has been providing that service since 1977. His expertise is corporate organization/re-organization and planning. He also assists clients to obtain financing. While he has provided some limited expert evidence in court over the course of his forty-year career, it was regarding the valuation of businesses. He does business valuations for the respondent and his companies on an ongoing basis. I note that the valuation of the respondent’s businesses is not a live issue in this case.

[7] The substance of the proposed expert testimony from Mr. Shantz relates to the respondent’s income for spousal support purposes. He has not given expert evidence on this issue in the past. He was asked by the respondent here to do income analyses for the purposes of this litigation. He asserts expertise in having done numerous personal income tax returns over the course of his career. While he indicates that much of his evidence will be fact based – just mathematics on numbers that are not in issue – he also indicates that he might not agree with the expert witness who has already given opinion evidence on income determination. He confirms that he did not perform an income analysis pursuant to the Child Support Guidelines (“CSG”) or the Spousal Support Advisory Guidelines (“SSAG”). He has filed a number of ‘pro-forma’ income tax returns as an ‘aide’, which means that he has taken the actual returns that were filed by the respondent with the Canada Revenue Agency and adjusted them to show the respondent’s position in this trial. He admits that this exercise and other calculation aides that he has prepared for the respondent are “pure math.”

[8] Mr. Shantz submits that his evidence will be unbiased and that, although he has worked for the respondent and his companies for the past three almost four decades, he is an “independent person”. He has filed an Acknowledgement of Expert’s Duty per Rule 4.1 of the Rules of Civil Procedure to that effect.

Analysis

Necessity

[9] The applicant asserts that Mr. Shantz’s evidence is not necessary. He has no technical or specialized scope of knowledge, and his evidence is simply math. He did not consult the CSGs or the SSAGs which is the starting point for spousal support income calculations (see Mason v. Mason, 2016 ONCA 725 starting at paragraph 48). She relies on Kirby Lowbed Services Ltd. v. Bank of Nova Scotia, 2003 BCSC 617 at paragraphs 14, 22, and 23 for the proposition that expert opinion evidence is only admissible where the judge is unable due to the technical nature of the facts to draw appropriate inferences. In that case an accountant’s opinion evidence was found not to be necessary in the sense that the information provided was likely to be outside of the court’s experience and knowledge.

[10] The respondent did not address this part of the test other than as follows. I asked whether the proffered opinion on income is something that this witness gives regularly in the course of his work. The answer was a question back to me along the lines of how else does the respondent challenge the evidence of the applicant’s expert. In Sordi v. Sordi, 2011 ONCA 665 at paragraphs 13 and 14 the court held that necessity does not arise from the need to critique another expert’s evidence. That can be done, as was done here, by Mr. Shantz being permitted to remain in court during the testimony of the applicant’s expert in order to assist the respondent’s counsel in formulating questions for cross-examination.

[11] In my view the respondent has not met his onus of establishing that the opinion evidence of Mr. Shantz is necessary. While that ends the analysis, I will address the other issues briefly, as indeed the main objection in my view was related to Mr. Shantz’s qualifications.

Exclusionary Rule

[12] The respondent argues that the report has not complied with the rules for the timing of service of the expert’s report. This point was not fully developed other than by reference to the regulatory timelines. It is not entirely clear which report was in issue and whether the last one could be characterized as a “supplemental report”. There was no reference to the test for leave, and no argument on prejudice. There was no sense of surprise or a need by the applicant for additional time to properly address the last report. I would not refuse to admit Mr. Shantz’s evidence solely on the basis of timing.

A Properly Qualified Expert

[13] While Mr. Shantz in his Acknowledgement of Expert’s Duty says that he will provide “opinion evidence related only to matters that are within my area of expertise”, there is no evidence that he has the expertise to provide an opinion regarding income determination for support purposes. It is not found in his statement of experience and education. Again, he did not consider the CSGs or the SSAGs. While he cites the numerous income tax returns he has completed as the basis for his expertise, I note that many accountants and non-accountants alike complete volumes of tax returns and all would not be considered experts in this area. In my view Mr. Shantz does not have the required expertise to provide the opinion he seeks to give.

[14] The second issue is the applicant’s position that Mr. Shantz is not independent and impartial. As noted in White Burgess at paragraph 53, this consideration properly falls within the ‘properly qualified expert’ threshold criteria under the Mohan test, although it is also a consideration at the gatekeeping stage (paragraph 54).

[15] While the proponent of the expert evidence ultimately has the burden of establishing its admissibility, there is actually a shifting burden when it comes to independence and impartiality. The expert’s attestation (Acknowledgement of Expert’s Duty) or similar testimony is sufficient to meet this threshold, unless it is challenged as it has been here. The burden is then on the challenging party to show that there is a realistic concern that the expert’s evidence should not be received because the expert is unable and/or unwilling to comply with that duty. If successful, then the burden to establish this aspect of the admissibility threshold remains on the party proposing to call the evidence: see White Burgess at paragraphs 47 and 48.

[16] As noted Mr. Shantz has testified that he accepts the duty. Therefore the burden is on the applicant to raise a realistic concern that he is unable to comply with that duty. She does so as follows. The duty is to provide “fair, objective and non-partisan” opinion evidence. This requires an expert that is independent and neutral, and who does not become an advocate for the position of the party who retained them: see Carmen Alfano Trust v. Piersanti, 2012 ONCA 297 at paragraphs 105, 107, and 108. In this case Mr. Shantz ‘becoming’ an advocate for the respondent after being engaged to give an opinion doesn’t really apply as he was already the accountant for the respondent long before he was approached to give his opinion. In other words, it was impossible for the respondent to ensure that Mr. Shantz was informed of the expert’s role and duties at the outset of his engagement. To be neutral there needs to be a distance between Mr. Shantz and the information. He is actually the source of the financial information being relied on, and also the architect of the arrangements relating to the respondent’s income and compensation. It is impossible to untangle this longstanding work and suggest that his opinion is now somehow impartial. As noted in Ebrahim et al. v. Continental Precious Minerals Inc. et al., 2012 ONSC 2918 at paragraph 46 “… a person under retainer to a party to litigation, however qualified he might be in a subject area, lacks the independence necessary to provide opinion evidence that is “fair, objective and non-partisan”.”

[17] The applicant has raised realistic concerns that the expert’s evidence should not be received because of an inability to comply with the duty to be independent and impartial. The respondent in turn has not established this admissibility threshold on a balance of probabilities.

Decision

[18] For the reasons that the evidence is not necessary and Mr. Shantz is not a properly qualified expert in the sense of having the expertise and the requisite independence and impartiality, he is not permitted to give opinion evidence regarding the respondent’s income for spousal support purposes.

Mr. Justice Timothy Minnema

Released: October 31, 2016