CITATION: Elder v. Rizzardo Bros. Holdings Inc., 2016 ONSC 7241

COURT FILE NO.: CV-11-102525

DATE: 20161123

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HELEN ELDER

Plaintiff

– and –

RIZZARDO BROS. HOLDINGS INC, HANK WILLIAMS and HANK WILLIAMS o/a H.C.S.W. PROPERTY MANAGEMENT

Defendant

T. Boland and D. Romaine for the Plaintiff

B. Jones for Rizzardo Bros. Holdings Inc.

F. DelGiudice and D. Elmaleh for Hank Williams and H.C.S.W. Property Managememt

HEARD: November 21, 2016

Ruling on Mohan Voir dire

Overview

[1] February 10, 2009 was, at least in Simcoe County, one of those miserable mid-winter days that make even the perkiest among us grumpy. Temperatures hovered around the freezing mark. It was cloudy and a light freezing drizzle fell. The day became even more miserable for Mrs. Helen Elder of Lisle Ontario when she slipped and fell in the parking lot of a Sobeys grocery store, breaking her elbow.

[2] Mrs. Elder sued the owner of the plaza where the Sobeys was located, as well as the owner’s winter maintenance contractor. The action proceeded to trial before a jury in Newmarket.

[3] One of the live issues in the case is the appropriate winter maintenance standards applicable to commercial parking lots. Each side offered up an engineer with expertise, purportedly at least, in winter maintenance assessments. The plaintiff’s expert, Russell Brownlee, was qualified as an expert in winter maintenance on consent. Not so for Jason Young, the expert tendered by Hank Williams. A dispute arose as to whether he was properly qualified to give opinion evidence on winter maintenance standards. A brief voir dire was conducted, after which I qualified Mr. Young as an expert in mechanical engineering and winter maintenance assessments. I undertook to give brief written reasons. These are the reasons.

Expert Opinion Evidence

[4] Expert opinion evidence is an exception to the general prohibition on the admissibility of opinion evidence.

[5] A two-step process is engaged in the inquiry as to the admissibility of proffered expert opinion evidence. This process has conventionally been known as the Mohan voir dire, following a seminal ruling by the Supreme Court in R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. The process has been refined somewhat by subsequent cases including R. v. Abbey (2009), 2009 ONCA 624, 68 C.R. (6th) 201 (Ont. C.A.) and, most recently, White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23.

[6] The first step of the process involves an assessment of the threshold requirements of admissibility:

(i) Logical relevance;

(ii) Necessity to assist the trier of fact;

(iii) Absence of any exclusionary rule; and,

(iv) A properly qualified expert.

[7] The second step involves an assessment of legal relevance, sometimes colloquially described as an assessment of whether the evidence is “worth the candle”. This is a gatekeeping stage, requiring the court to conduct a cost benefit analysis.

[8] The only issue in dispute in terms of the admissibility of Mr. Young’s proffered opinion evidence is whether he meets the threshold requirement of being a properly qualified expert. For that reason, I will focus only on that issue. To be clear, I am satisfied that all other threshold requirements are met.

A Properly Qualified Expert

[9] Admissibility of expert opinion evidence requires a properly qualified expert. That makes sense. The court in Mohan described such a person as one who is shown to have acquired special or peculiar knowledge, through study or experience, about the matters upon which he or she proposes to testify.

[10] “Expertise” is described by Paciocco and Stuesser in The Law of Evidence, 6th ed., (Toronto: Irwin Law, 2011), at page 198, as “a modest status that is achieved when the expert possesses special knowledge and experience going beyond that of the trier of fact in the matter testified to.” Provided this threshold is met, any deficiencies in expertise go to the weight of the expert’s evidence, but not its admissibility: see R. v. Fisher (2003), 2003 SKCA 90, 179 C.C.C. (3d) 138 (Sask. C.A.).

The Proffered Expert

[11] Jason Young was tendered by counsel to Hank Williams to give expert opinion evidence about winter maintenance of commercial parking lots.

[12] Mr. Young has a masters degree in Biomedical Engineering from the University of Toronto, where he focused on human factors. His education has no particular connection to winter maintenance. That said, it does not matter how one’s expertise has been gained. What matters is that the proposed expert be sufficiently skilled: see R. v. Kinnie (1989), 1989 CanLII 7188 (BC CA), 52 C.C.C. (3d) 112 (B.C.C.A.).

[13] Mr. Young’s skill was developed through post-graduate training and work experience. He testified that he worked for about ten years at an engineering firm known as Giffen Koerth Inc. in Toronto. Giffen Koerth is a predecessor firm to 30 Engineering – the firm that the plaintiff’s expert, Russell Brownlee, works at.

[14] Mr. Young testified that the worked with Mr. Brownlee for seven or eight of the ten years he was at Giffen Koerth. He said they worked on the same team. He noted that Mr. Brownlee trained him in road design and he trained Mr. Brownlee in winter maintenance assessments.

[15] While he has taken a modest number of courses in winter maintenance, he indicated that his practice consists of a mixture of collision reconstruction; slips, trips and falls; and some product failure investigations as well. He has investigated 1800 cases over the last 15 years. Approximately 600 of those were slips, trips and falls. About 200 of them have been winter maintenance assessments. His estimate was that about 11% of his case work consists of winter maintenance assessments. He has taught courses in practical urban maintenance and given seminars on slips, trips and falls as well as minimum maintenance standards.

Conclusion

[16] I am satisfied that Mr. Young is a person who, by virtue of his training and, more significantly, his experience, has acquired special knowledge in the area of winter maintenance standards. He most certainly has specialized knowledge going beyond that of the jury. He may not have as much training as Mr. Brownlee and he may not belong to as many maintenance-related associations as Mr. Brownlee, but those are matters that will ultimately go to weight and not to admissibility.

[17] In the result, I qualified Mr. Young as an expert in mechanical engineering and winter maintenance assessments.

Date: November 23, 2016 ____________________________

Boswell J.