CITATION: Awada v. Glaeser, 2017 ONSC 1094
COURT FILE NO.: 11-52302
DATE: 20170221
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MOHAMED AHMAD AWADA, KHALDIEH AWADA, FATIMA AWADA, and ALI AWADA
Plaintiffs
– and –
PETER GLAESER, COHEN & COHEN, COHEN & COHEN DEMOLITION LTD., COHEN & COHEN SCRAP METAL MERCHANTS LTD., 1770918 ONTARIO INC., COHEN & COHEN and AMADO WEHBE and AMERICAN IRON & METAL LP operating as COHEN AND COHEN and COHEN & COHEN
Defendants
Thomas Connolly, for the Plaintiffs
Martin J. Thompson, for the Defendants, Peter Glaeser, American Iron & Metal GP Inc. and American Iron & Metal LP operating as Cohen and Cohen
Ashley Peacock, for the Defendant, Amado Wehbe
HEARD: February 1, 2017
Additional REASONS FOR JUDGMENT
Beaudoin j.
[1] These reasons are being delivered in addition to the oral reasons given on February 1, 2017. On that date, I granted the relief sought by the moving parties and ordered the defendant, Armado Wehbe (“Wehbe”), to pay their costs in the amount of $4,000.00.
The Motion
[2] The defendants, Peter Glaeser, Cohen and Cohen etc. (the “AIM defendants”) seek an order striking the Safety Engineering Letter of Opinion prepared by Michael Joaquin (“Joaquin Report”), which has been proffered as an expert report by Wehbe, and preventing Mr. Joaquin from giving oral evidence at the trial of this matter.
[3] The Joaquin Report was served on December 23, 2016, more than two years after the pretrial conference and 16 months following the last case conference between parties. A jury trial in this matter is scheduled for three weeks commencing March 6, 2017.
Background
[4] On September 10, 2009, Wehbe was towing a disabled motor vehicle. The Wehbe vehicle was stopped at the entrance weigh scale at the scrapyard operated by the AIM defendants. While the plaintiff, Mohammed Awada, (“Awada”) was attempting to retrieve ownership documents from the disabled motor vehicle, the defendant, Glaeser (“Glaeser”) caused Wehbe to suddenly and quickly reverse his vehicle resulting in an injury to Awada. Awada commenced this action against the defendants on September 12, 2011.
[5] A pretrial conference in this matter was held on September 23, 2014; following which the trial was set for June 15, 2015. On May 19, 2015, Wehbe’s counsel requested that the trial be adjourned because of a medical issue. The other counsel consented to that adjournment.
[6] Prior to the initially scheduled trial date, the parties had obtained various expert reports, and counsel for the AIM defendants and Wehbe agreed to share the costs of two independent medical reports.
[7] As a result of the trial adjournment, the parties attended a case conference on July 15, 2015 before Master MacLeod (as he then was). His Endorsement (subsequently amended) set a number of deadlines for the action. More particularly, para. 4(2) of this Endorsement provided:
If there are expert reports that must be updated or experts that must to be replaced, counsel are to confer and agree on a timetable for exchange of reports.
[8] There appears to have been little correspondence between the parties between July 15, 2015 and November 2016. In November and early December 2016, the parties exchanged various requests to admit and responses thereto in advance of the deadlines set out in Master MacLeod’s Endorsement. It was not until December 23, 2016, that the AIM defendants received a letter from counsel for Wehbe enclosing the Joaquin Report.
[9] At paras. 11 and 12 of the affidavit filed in response to this motion to strike, counsel for Wehbe provided the following explanation for the timing of delivery of the Joaquin Report:
On May 12, 2015, I consulted with an expert, Mr. Mark Carli, of Resource Environmental Associates Limited (hereinafter “REA”), whether he could provide an expert opinion to assist the Court in determining the issue of liability. After reviewing this with my client, I obtained instructions to retain Mr. Carli. I tried to contact Mr. Carli on November 16, 2016 but he was no longer working for REA. I determined that he was working for another company but he was no longer able to provide us with an expert opinion in this case.
As a result, I began to search for another expert who could assist. It was not until December 1, 2016, that I was able to consult with and obtain instructions to retain Mr. Michael Joaquin to provide an expert opinion in this case. As a result, I was unable to serve the Joaquin Report until less than the time prescribed under Rule 53.
[10] There are two important points to be retained from this affidavit. The first is that Wehbe’s counsel had not attempted to obtain an expert report until the eve of the originally scheduled trial date, when service of such a report would have been out of time. Counsel then waited a further 18 months before attempting to retain an expert. This delay completely undermines Wehbe’s argument that the AIM defendants should still be able to retain an expert in time for trial.
[11] The Joaquin Report is critical of the AIM defendants’ conduct while Awada and Wehbe were on their weigh scale. The late service of the Joaquin Report left the AIM defendants with 10 weeks, including the Christmas period, to find, retain and instruct an expert and for that expert to draft a responding report.
[12] According to the AIM defendants, the only possible way for them to have an expert report would be to delay the trial once more. There has already been a lengthy delay in this matter, with the trial having already been adjourned for a period of nearly two years at Wehbe’s request. With Ottawa’s fixed trial date system, and given plaintiff’s counsel availability, if the trial is adjourned again, it could not, because of the length of the trial, be rescheduled until 2019 resulting in another two year delay.
[13] The issues on this motion are:
Should the question of leave for late service of this expert report be deferred to the trial judge in accordance with rule 53.03(3)?
Should the Joaquin Report be admitted and Mr. Joaquin be permitted to testify at trial?
Should the question of leave be deferred to the trial judge?
[14] The relevant provisions of Rule 53 are set out below.
53.03 (1) A party who intends to call an expert witness at trial shall, not less than 90 days before the pre-trial conference scheduled under subrule 50.02 (1) or (2), serve on every other party to the action a report, signed by the expert, containing the information listed in subrule (2.1).
Sanction for Failure to Address Issue in Report or Supplementary Report
53.03 (3) An expert witness may not testify with respect to an issue, 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) a report served under this rule; or
(b) a supplementary report served on every other party to the action not less than 30 days before the commencement of the trial.
Extension or Abridgment of Time
53.03(4) The time provided for service of a report or supplementary report under this rule may be extended or abridged,
(a) by the judge or case management master at the pre-trial conference or at any conference under Rule 77; or
(b) by the court, on motion.
[15] There is no issue that the Joaquin Report was served out of time and that Wehbe has not brought a motion pursuant to rule 53.03(4). This defendant relies solely on rule 53.03(3), which specifically provides that only the trial judge has the jurisdiction to hear the motion.
The Law
[16] In Harrop (Litigation guardian of) v. Harrop, 2010 ONCA 390 at paras. 2, and 3, the Court of Appeal accepted that a motion judge could rule in advance on the admissibility of proposed expert evidence, but should only do so in “the rarest of cases”:
2 In our view, the policy considerations relevant to this issue all point to the trial judge determining this question. It avoids the risk of a multiplicity of proceedings in any given case. It ensures a full context in which the decision can be made. It avoids the risk of preliminary steps being taken for purely tactical reasons. And it avoids creating different appeal rights depending on whether the decision is made by a motion judge as an interlocutory order or the trial judge.
3 Thus, even if a motion judge has such jurisdiction, it should be exercised only in the rarest of cases. Nothing has been shown to us to put this case in that category.
[17] Harrop was followed by my colleague, Ratushny, J. in Forbes v. NET Ministries of Canada, 2011 ONSC 6006, 38 C.P.C. (7th) 150, another case cited by Wehbe. Harrop and Forbes were both decided just as the procedural landscape in Ontario underwent a number of significant changes. Rule 53 now provides: (a) earlier timelines for the delivery of expert reports: and (b) new measures to ensure the reliability of such reports.
[18] In Gardner v. Hann, 2011 ONSC 3350, Justice Wilson allowed the late service of an expert report under the new rules. She considered the matter before her to be a transition case and she allowed the late service because the new report did not cause prejudice to the defence, nor did it change the nature of the case as it had been presented to that point.
[19] At para. 14, Wilson, J. agreed with the comments of Justice Barr in Hunter v. Ellenberger 1988 CarswellOnt 340, 25 C.P.C. (2d) 14 where he noted:
In my view, it should be remembered that any time a court excludes relevant evidence the Court’s ability to reach a just verdict is compromised. Relevant evidence should not be excluded on technical grounds, such as lack of timely delivery of a report, unless the Court is satisfied that the prejudice to justice involved in receiving the evidence exceeds the prejudice to justice involved in excluding it. (Emphasis mine)
I agree that this is the proper consideration by the Court when determining whether to grant relief from the time periods set out in Rule 53 and that this applies equally to both Plaintiffs and Defendants.
[20] I am satisfied that the matter before me is one of these “rarest of cases” as described in Harrop. Wehbe has, by his own admission, twice failed to seek out an appropriate expert within the timelines prescribed by the rules. Moreover, Wehbe gave no indication to any of the parties, including its co-defendants, that he intended to seek such a report, even though it is clear that such a report was contemplated as early as May 2015.
[21] Having said that, the policy considerations enunciated in Harrop have to be reassessed having regard to the rule amendments that have expanded the court’s jurisdiction to rule on issues before a trial. While relevant evidence should not be excluded solely on technical grounds, motion judges should not avoid an analysis of the probative value of the proffered evidence and an assessment of the prejudice that will result from the late delivery of an expert’s report. Automatically deferring such issues to the trial judge can also result in a lack of fairness to the parties and prejudice to the administration of justice.
[22] Judicial resources are constrained and judicial trial time is a limited commodity. It is no longer possible for counsel to provide casual estimates of trial length and then expect the court calendar to automatically inflate if more time is required. For every trial that goes beyond its scheduled duration; another matter has to be postponed. Our trial system can no longer function effectively if counsel routinely defer trial preparation until the last moment and then expect the trial judge to relieve the party whom they represent of their counsel’s failure to comply with the rules in a timely way. When motions are postponed to the outset of trial, valuable trial time is lost. The loss of trial time undermines the public perception of our system of justice, particularly when a jury has been convened. Last minute motions can also result in the adjournment of trials.
[23] Ideally, the trial judge should be identified in advance of the trial date so that he or she could hear any such motions. Unfortunately, this remains a scheduling challenge having regard to the competing and daily demands that are already being placed on a pool of limited judicial resources.
[24] The rule amendments that took effect in January, 2010 introduced new and expanded trial management powers at a pretrial; all with a view of increasing trial efficiency. Rule 50.07(c) provides that the court can make a wide range of orders under rule 20.05 (1) or (2) which include:
Powers of Court
20.05 (1) Where summary judgment is refused or is granted only in part, the court may make an order specifying what material facts are not in dispute and defining the issues to be tried, and order that the action proceed to trial expeditiously.
Directions and Terms
(2) If an action is ordered to proceed to trial under subrule (1), the court may give such directions or impose such terms as are just, including an order,
(a) that each party deliver, within a specified time, an affidavit of documents in accordance with the court’s directions;
(b) that any motions be brought within a specified time;
(c) that a statement setting out what material facts are not in dispute be filed within a specified time;
(d) that examinations for discovery be conducted in accordance with a discovery plan established by the court, which may set a schedule for examinations and impose such limits on the right of discovery as are just, including a limit on the scope of discovery to matters not covered by the affidavits or any other evidence filed on the motion and any cross-examinations on them;
(e) that a discovery plan agreed to by the parties under Rule 29.1 (discovery plan) be amended;
(f) that the affidavits or any other evidence filed on the motion and any cross-examinations on them may be used at trial in the same manner as an examination for discovery;
(g) that any examination of a person under Rule 36 (taking evidence before trial) be subject to a time limit;
(h) that a party deliver, within a specified time, a written summary of the anticipated evidence of a witness;
(i) that any oral examination of a witness at trial be subject to a time limit;
(j) that the evidence of a witness be given in whole or in part by affidavit;
(k) that any experts engaged by or on behalf of the parties in relation to the action meet on a without prejudice basis in order to identify the issues on which the experts agree and the issues on which they do not agree, to attempt to clarify and resolve any issues that are the subject of disagreement and to prepare a joint statement setting out the areas of agreement and any areas of disagreement and the reasons for it if, in the opinion of the court, the cost or time savings or other benefits that may be achieved from the meeting are proportionate to the amounts at stake or the importance of the issues involved in the case and,
(i) there is a reasonable prospect for agreement on some or all of the issues, or
(ii) the rationale for opposing expert opinions is unknown and clarification on areas of disagreement would assist the parties or the court;
(l) that each of the parties deliver a concise summary of his or her opening statement;
(m) that the parties appear before the court by a specified date, at which appearance the court may make any order that may be made under this subrule;
(n) that the action be set down for trial on a particular date or on a particular trial list, subject to the direction of the regional senior judge;
(o) for payment into court of all or part of the claim; and
(p) for security for costs. .
[25] As can be seen, Rules 50.07 (c) and 20.05(1) and (2) give a pretrial judge expanded powers that can affect the conduct of the trial. These pretrial orders are binding on the parties, unless the trial judge “orders otherwise to prevent an injustice.”
[26] In a case such as the matter before me, where the trial has already been adjourned at the request of the responding defendant and there is the possibility of a further postponement of the trial for another two years, the issue of prejudice and the relevance of the proposed report have to be examined closely. I conclude that there is a serious prejudice to the plaintiff. This accident occurred in 2009. The availability and memories of witnesses will be compromised if the trial is delayed for another two years.
Should the expert report be admitted and Mr. Joaquin be allowed to testify at trial?
[27] In looking at the Joaquin Report, it is helpful to note that the expert was retained to provide an opinion as to whether the AIM defendants met the standard of care. In identifying the documents reviewed, the author lists summaries of the examinations for discovery of the parties. The author did not look at the transcripts from these examinations. His understanding of what transpired is taken from what counsel told him.
[28] The author commences the substantive portion of his report by stating:
From the information provided in the documents listed in section 3.0 above, it became apparent to the undersigned that the accident and the actions of the co-defendant could be considered from the perspective of the duties of an “employer” operating an industrial establishment under the Ontario Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (OHSA).
[29] This is a legal conclusion and beyond the scope of the author’s expertise. The Joaquin Report then goes on to discuss the duties of an employer under the OHSA and regulations. The author then cites s. 56 of the Industrial Establishments Regulations, R.R.O. 1990, Reg. 851, which provides:
When the operator of a vehicle, mobile equipment, crane or similar material handling equipment does not have a full view of the intended path of travel of the vehicle mobile equipment, crane or similar material handling equipment or its load, the vehicle, mobile equipment, crane or similar material handling equipment, shall only be operated as directed by a signal or was a competent person who was stationed,
(a) in full view the operator;
(b) with a full view of the intended path of travel of the vehicle, mobile equipment, crane or similar material and liquor equipment and its load; and
(c) clear of the intended path of travel of the vehicle mobile equipment, crane or similar material handling equipment and its load.
[30] The author sates that Glaeser was required to be a “competent person”:
In the circumstances described in the plaintiff’s claim, the tow truck driver, Mr. Wehbe, could not have had a full view of its load (the van under tow, and Mr. Awada) and hence the tow truck’s movement should have been directed by a signaller, in the manner described in s. 56. In as much as Mr. Glaeser gives instruction to Mr. Wehbe for movement of the tow truck, Mr. Glaeser acted as a signaller. As a signaller, Mr. Glaser was required to be a “competent person” as defined by the Occupational Health & Safety Act. It was the responsibility of the employer (AIM) to ensure that Peter Glaeser was in fact a competent person.
[31] Mr. Joaquin adds:
Taking reasonable care in this situation would have required Mr. Glaeser to exit his booth and made (sic) a complete inspection of the perimeter of the load (i.e. the van under tow), to ascertain that it was safe to be moved. As part of doing so, he should reasonably have determined where Awada was and ensured that Mr. Awada, was apprised of the need to move the tow truck and van, and that Mr. Awada went to a safe location prior to such a movement happening…
[32] The Joaquin Report does not meet the requirement of admissibility set out by the Supreme Court of Canada in R. v. Mohan 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9. The court held that the admission of expert report depended on the application of four criteria: a) relevance; and b) necessity in assisting the trier of fact; c) the absence of an exclusionary rule; and d) a properly qualified expert. I turn to the first two criteria now.
The Report is Not Relevant
[33] The Joaquin Report focuses exclusively on the duties owed by the AIM defendants as a result of the Occupational Health and Safety Act. Neither the plaintiff nor Wehbe have alleged in their pleadings that the AIM defendants breached its obligations under that legislation. Wehbe should not, under the guise of an expert report, be permitted to make allegations he was not prepared to make in his Statement of Defence and Cross-Claim.
[34] The Joaquin Report raises no other statutory or common law duties which the AIM defendants may have owed to Awada. The OHSA did not apply to Awada while he was on AIM’s weigh scale. He was a third-party. The OHSA applies only to workplace relationships between employers and workers. Any duties owed by the AIM defendants to Awada are governed by the Occupiers Liability Act, R.S.O. 1990, c. O.2 and the common law, not by the OHSA. Both Awada and Wehbe have pleaded the Occupiers Liability Act and the Negligence Act; they have not made any allegations with respect to the OHSA.
[35] In Mohan the Supreme Court of Canada said this:
…Evidence that is otherwise logically relevant may be excluded on this basis, if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value or if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability. …
[36] The Joaquin Report applies an irrelevant statutory framework. It therefore has no probative value and risks having a highly prejudicial effect in the jury’s ability to properly assess the evidence before it. The Joaquin Report would only confuse matters by turning the jury’s attention to a set of inapplicable laws.
The Joaquin Report is Unnecessary
[37] The criteria for the necessity of an expert report are set out at para. 26 in Mohan:
.. What is required is that the opinion be necessary in the sense that it provide information “which is likely to be outside the experience and knowledge of a judge or jury… in order for expert evidence to be admissible, the subject matter of the inquiry must be such that ordinary people are unlikely to form a correct judgment about it, if unassisted by persons with special knowledge.
[38] In concluding that the AIM defendants breached its standard of care, Mr. Joaquin attempts to supplant the trier of fact’s role. The Joaquin Report assesses an ordinary, not technical, standard of care that is well within the ability of the trier of fact to comprehend. Judges routinely instruct jurors on the provisions of the Occupier’s Liability Act without the need of an expert report.
[39] In this case, there is no specialized standard of care and the Joaquin Report addresses a standard of care that is well within the ability of the jury to assess. There is no profession-specific standard involved. Instead, the jury will be asked to ask the same question posed in any ordinary negligence action: “What would a reasonable person have done?” In this case, the author’s conclusion, that “American Iron & Metal LP and Mr. Glaeser failed to take reasonable protection of Mr. Awada.” is a matter of ordinary common sense and requires no specialized knowledge.
[40] As I read it, Awada’s claim against the Aim Defendants is pleaded solely on the basis of their vicarious (strict) liability for Glaeser’s conduct. The AIM defendants have produced materials relating to their Emergency Response Procedures; Occupational Health and Safety Policy; Safety Enforcement Policy; and Workplace Responsibilities. If there is an allegation by Wehbe that the AIM defendants were negligent in failing to provide Glaeser with appropriate safety training so as to ensure that he was a “competent person” in the performance of his duties, these documents can be referred to. To the extent that it might be relevant, Wehbe can request that the trial judge direct the jurors to the relevant provisions of the OHSA and related regulations without any need to consider the Joaquin Report for that purpose.
[41] For these reasons, the Joaquin Report is struck and Mr. Joaquin is prevented from testifying at trial.
Mr. Justice Robert N. Beaudoin
Released: February 21, 2017
CITATION: Awada v. Glaeser, 2017 ONSC 1094
COURT FILE NO.: 11-52302
DATE: 20170221
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MOHAMED AHMAD AWADA, KHALDIEH AWADA, FATIMA AWADA, and ALI AWADA
Plaintiffs
– and –
PETER GLAESER, COHEN & COHEN, COHEN & COHEN DEMOLITION LTD., COHEN & COHEN SCRAP METAL MERCHANTS LTD., 1770918 ONTARIO INC., COHEN & COHEN and AMADO WEHBE and AMERICAN IRON & METAL LP operating as COHEN AND COHEN and COHEN & COHEN
Defendants
additional REASONS FOR JUDGMENT
Beaudoin J.
Released: February 21, 2017