Court File and Parties
Court File No. FS-47450-13 Date: 2018-03-08
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: Elleni Belehou - Applicant AND: Yidersal Gebeyehu - Respondent
COUNSEL: Brian Kelly - Counsel, for the Applicant Theodore C. Dueck - Counsel, for the Respondent
BEFORE: James W. Sloan HEARD: March 8, 2018
Endorsement
[1] The respondent brings this motion seeking a court order that his valuation expert should not be disqualified on the basis of a perceived conflict of interest by the applicant.
[2] The applicant submits that I simply do not have the jurisdiction to bind the trial judge’s discretion with respect to experts.
[3] The respondent retained Timothy Rickert and Robert Hehl of the accounting firm of BDO Canada LLP to provide expert evidence on financial matters between him and the applicant which would include the value of his medical professional corporation and the quantum of his annual income for child and spousal support purposes. Both individuals have obtained their Chartered Business Valuators designation.
[4] The applicant’s previous solicitor raised the issue that the above named experts may not be able to testify because the applicant believes they are in a conflict of interest.
[5] The applicant’s concern arises from the fact that another accountant within BDO prepares the annual financial statements for the respondent’s medical professional corporation. In addition, a different accountant within BDO prepares the annual financial statements for the group of 20 physicians who practice in association under the name of New Vision Family Health Network.
[6] Upon being apprised of the applicant’s position, counsel for the respondent wrote to Mr. Rickert, who responded with a six page letter dated January 22, 2018.
[7] His letter in part reads:
We note that BDO does not provide bookkeeping services to Dr. Gebeyehu or YGMPC. Summary information is provided to BDO which forms the basis of the financial statement comp. and income tax preparation.
… The individuals involved in the services related to the family law engagement are separate and distinct from the individuals involved in providing accounting and income tax services to Dr. Gebeyehu, corporations owned by Dr. Gebeyehu and New Vision.
In practice, the (Financial Advisory Services Practice) FAS group is distinct from the other service areas within BDO. More specifically, the FAS group is physically separated from the other practice groups in the Waterloo office of BDO.
[8] In addition, the respondent’s proposed experts have complied with Rule 53.03(2.1)(7), and signed Form 53, part of which form states:
- I acknowledge that it is my duty to provide evidence in relation to this proceeding as follows:
a) to provide opinion evidence that is fair, objective and nonpartisan;
b) to provide opinion evidence that is related only to matters that are within my area of expertise; and
c) to provide such additional assistance as a court may reasonably require, to determine the matter in issue.
- I acknowledge that the duty referred to above prevails over any obligation which I may owe to any party by whom or on whose behalf I am engaged.
[9] Rule 1.04(1) states:
These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
[10] The respondent relies in part on the case of Rosatti v. Reggimenti, 2016 ONSC 7013. The Rosatti case endured a torturous ride through the judicial system. The first trial judge refused to permit the respondent’s financial expert to testify. The first trial judge later declared a mistrial.
[11] A second judge was then appointed to hear the trial and the respondent brought a motion before that judge prior to trial, to deal with the issue of whether or not the respondent’s expert could testify.
[12] The applicant’s allegations were that the expert had a vested financial interest in the outcome of the process because she would likely never be paid unless the respondent was successful. In addition, the applicant submitted that based on a review of the experts numerous affidavits and reports, it was clearly evident that she had become an advocate for the respondent and therefore was not an objective expert.
[13] Although the motion’s judge made a finding based on the motion material that the expert could testify, the motion’s judge was also the judge who had been appointed to preside at the trial.
[14] This is very similar to criminal procedure where all applications in a criminal matter are brought before the Judge who will be presiding at the trial.
[15] It has always been my understanding that the trial judge is the person charged with the gatekeeper role when it comes to admitting evidence.
[16] Although the Court is aware that Mr. Rickert has been qualified as an expert in several court cases, the applicant, at this stage, is calling into question his impartiality and not his professional qualifications.
[17] I have not been assisted by any case law other than the Rosatti case, which unfortunately for the respondent is distinguishable.
[18] I am not convinced that I have the jurisdiction to bind the trial judge in any manner with respect to what evidence he or she will or will not permit to be introduced at the trial. If I did find in favour of the respondent, it may leave the trial judge in an untenable position, if during cross-examination the trial judge came to the conclusion that the expert’s evidence should be excluded on the grounds that he has a conflict of interest.
[19] Although both counsel may be guided by comments made by Justice Turnbull in the Rosatti case, the respondent may still wish to either retain a second expert, or alternatively, contact the trial coordinator to see if the trial judge can be appointed prior to the trial to deal with this matter.
[20] If the respondent, because of the applicant’s allegations, is forced to hire a second expert at a not insignificant cost, and if both experts testify, the trial judge will be in a position to right any wrongs in his/her ruling on costs.
[21] For the above reasons I dismiss the respondent’s motion.
[22] If the parties are unable to agree on costs, Mr. Kelly shall forward his brief submissions on costs to me by March 15, 2018. Mr. Dueck shall forward his brief response to me by March 20, 2018. Mr. Kelly shall then forward his reply, if any, to me by March 23, 2018. Cost submissions may be sent to my attention by email, care of Kitchener.Superior.Court@ontario.ca
Justice James W. Sloan
Date: March 8, 2018