Court File and Parties

COURT FILE NO.: CV-03-00000568-0000 DATE: 20190501 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

LESLIE GAIL LLOYD and JASON LLOYD Plaintiffs – and – DAVID P. BUSH, 818601 ONTARIO INC. c.o.b. as MacDONALD’S PROPANE, THE CORPORATION OF THE COUNTY OF LENNOX AND ADDINGTON, and THE CORPORATION OF THE TOWN OF GREATER NAPANEE Defendants

Counsel: R. Steven Baldwin, for the Plaintiffs David G. Boghosian, for the Defendants, Town of Greater Napanee and County of Lennox & Addington

HEARD: 1 May 2019 at Belleville

MEW j. (orally)

REASONS FOR DECISION (Evidentiary Motions)

Reasons for Decision (Evidentiary Motions)

1Two motions have been brought near the commencement of this trial – one by the plaintiff, the other by the defendant municipalities. Both deal with evidentiary issues.

2This is the third trial between the parties arising out of a motor vehicle accident which occurred on the 3rd of January 2003. A vehicle driven by Leslie Lloyd collided with a propane truck driven by David Bush. Leslie Lloyd was seriously injured.

3The first trial took place in 2009, with judgment rendered on the 27th of January 2010. The plaintiffs' action was dismissed. On the 28th of May 2012, the Court of Appeal set aside that decision and ordered a new trial: 2012 ONCA 349.

4The second trial was in 2014. Judgment was rendered on the 6th of February 2015. The plaintiffs' damages were assessed at $4,149,158.50, with liability being apportioned between the defendant Napanee (60%), the defendant Bush, for whose negligence the defendant MacDonald's Propane was vicariously liable (30%) and Leslie Lloyd by way of contributory negligence (10%). An appeal taken from that decision upheld the trial judge's assessment of damages, but remitted the matter to this court for a further trial on the issue of liability: 2017 ONCA 252.

5I was assigned as the judge to hear the third trial sufficiently well in advance that there have been a number of trial management meetings with counsel in the months leading up to trial. As a result, significant efficiencies have been agreed which will reduce the amount of court time that is required for this trial.

6In particular, counsel have agreed that the transcripts of the evidence of all of the non-expert witnesses at the second trial will stand as the evidence of those witnesses at this trial. This makes abundant sense, given the passage of time - over sixteen years - since the unfortunate events which gave rise to this action. Similarly, the transcripts of the weather experts called by each side at the second trial will stand as their evidence at the third trial. The only "live" witnesses will be experts dealing with accident reconstruction and winter road maintenance issues.

7The two issues which now arise by way of motion are as follows:

1. Should the defendant (Napanee) be allowed to call Joe Correira as an expert witness to assist the court in determining liability for the accident and in particular to comment on an engineering report prepared by Darryl Schnarr, an expert witness being called by the plaintiffs; and,
2. Should an excerpt of "The Driver's Handbook" be admitted as evidence at this trial.

Expert Witness Issue

Expert Witness Issue

8Trial management conferences took place on the 19th of December 2018, the 25th of February 2019, the 20th March 2019 and the 16th of April 2019. On the issue of accident reconstruction and winter road maintenance experts, my endorsement following the 19th of December 2018 trial management conference recorded that:

The Defendants’ winter maintenance expert (Tim Leggett) may also be their accident reconstruction expert. In any event, defence reports are to be delivered by 15th of February 2019. If, due to expert witness reasons, that deadline becomes unachievable; counsel for the defendants shall notify me and counsel for the plaintiffs immediately.

9Darryl Schnarr is the only expert witness to be called by the plaintiffs. His report is dated the 28th of December 2017 and was served on the defendants on the 2nd of May 2018.

10Tim Leggett authored an expert report on the 5th of August 2014. He gave opinion evidence on winter road maintenance at the second trial. He has authored a further report, dated the 15th of February 2019, in which he was asked to comment on reports prepared by Russell Brownlee and Darryl Schnarr.

11At the trial management conference on the 25th of February 2019, Mr Boghosian, for Napanee, advised that he intended to deliver a further liability expert report from Joe Correira, an engineer. Mr. Baldwin, for the plaintiffs, registered an objection based on the court's ruling that defence reports were to be delivered by the 15th of February 2019 and reserved the right to maintain his objection at the commencement of trial.

12Mr. Correira's report is dated the 8th of March 2019. It was served on the 12th of March. The report notes that Mr. Correira was not retained until the 14th of February 2019.

13The plaintiffs argue that they have been deprived of the opportunity to retain and obtain a report from a second liability expert witness. By the time Mr. Correira's report was received, it is said that there was insufficient time to do that before the scheduled commencement of trial. The plaintiffs characterise this as a fairness issue. Furthermore, they argue that the policy of section 12 of the Evidence Act, R.S.O. 1990, c. E.23, which limits each side to calling three expert witnesses, was intended to prevent the calling of multiple experts with the same speciality.

14No explanation has been provided for the late delivery of Mr. Correira's report.

15The defendant's factum focuses its arguments on whether a party should be permitted to call more than one expert in the same field or about a given subject matter. It notes that the court does not have an inherent jurisdiction to deprive a party from calling relevant evidence on a live issue at trial unless the prejudicial effect of doing so outweighs the probative value of receiving the evidence.

16Furthermore, the defendant asserts that the plaintiffs have not been prejudiced by the late delivery of Mr. Correira's report. They point to the fact that Mr. Schnarr was able to deliver a written response dated the 4th of April 2019 to Mr. Leggett's 15th of February report. While Mr. Schnarr's 4th of April report does not address the Correira report, the defendant argues that there is no reason why it could not have.

17Given that the experts are not scheduled to testify until the week of the 13th of May, the defendant takes the position that it would not object to the plaintiffs delivering a further rebuttal report from Mr. Schnarr even as late as next week.

18Finally, the defendant points to rule 53.08(1) of the Rules of Civil Procedure, which requires the court to give leave to admit evidence, notwithstanding noncompliance with certain provisions of the rules, on such terms as are just and with an adjournment if necessary, unless to do so will cause prejudice to the opposite party or will cause undue delay in the conduct of the trial.

19I do not disagree with the defendant's arguments concerning the general principle that a party may call two similarly qualified experts. But in my view, those arguments miss an important point.

20This is not a situation where there has been noncompliance with one of the provisions listed in Rule 53.08(2) of the Rules of Civil Procedure. Rather, this is a situation in which a party has failed to comply with an express order, recorded in the form of an endorsement which was released to the parties following a trial management conference. While the court was provided with information at one of the trial management conferences about personal circumstances which had precluded counsel from attending to certain matters in as timely a fashion as he should have, no explanation has been offered as to why Mr. Correira was not instructed until one day before the deadline for delivery of defence expert reports. Even today, not a whiff of contrition was expressed on the part of counsel for noncompliance with the court's scheduling order.

21Orders made by the court must have some teeth. In many situations, noncompliance can be dealt with by making appropriate awards of costs or by granting adjournments. However, the circumstances of this case are highly unusual. The Court of Appeal has already twice sent this case back for a further trial. Whichever way my ruling goes on this issue, it could well end up being the basis for third appeal. And yet the problem could have been so easily avoided had Mr. Correira's report been delivered in a timely fashion and in accordance with the court's direction.

22The interests of justice will not be served if this matter is delayed further. Indeed, the plaintiffs do not ask for an adjournment. So the decision I have to make is whether to exclude the evidence or to allow Mr. Correira to testify, the objections of the plaintiffs notwithstanding.

23I have concluded, not without some misgivings, that the lesser of two evils is to permit Mr. Correira to testify. As was discussed during the course of argument, juries are instructed all the time that they should not weigh evidence based on the number of experts each side calls. It is the substance and quality of the expert evidence, not the number of people who give it, that should determine the acceptance or otherwise of the opinion evidence given.

24There is no indication in the record that Mr. Schnarr cannot address Mr. Correira's critique of his report. Nearly two months will have elapsed since the delivery of Mr. Correira's report by the time that Mr. Schnarr testifies at trial. He has had sufficient time to be able to consider the Correira Report and his response to it. But the defendant can anticipate that when he comes to testify, I will give appropriate leeway to Mr. Schnarr in terms of his ability to comment on Mr. Correira's report.

The Driver's Handbook

The Driver's Handbook

25There have been a number of cases in which The Ontario Driver's Handbook has been admitted as evidence of the standard of care expected of drivers. The specific purpose of the defendant in seeking the admission of this evidence is to place in the record what both the 1994 – 95 and 2002 versions of the handbook say about driving in snow, namely:

Snow may be hard packed and as slippery as ice. It can also be rutted, full of hard tracks and gullies. Or it can be smooth and soft. Look ahead and anticipate what you must do to handle any or all such conditions. Slow down on rutted snowy roads. Avoid abrupt steering, braking or acceleration that could cause a skid.

26The defendant argues that its objective in tendering this evidence is not to impugn the credibility of Leslie Lloyd. When Leslie Lloyd was cross-examined at the second trial, she was asked whether she knew before the accident that she should never make any sudden braking movements or braking actions on snow-covered roads. She said, "I would assume so". She gave a similar answer when asked about her knowledge that she should not make any sudden steering movements on snow-covered roads.

27The Ontario Driver's Handbook is published by the Queen's Printer for Ontario. As such, the defendant argues that it is admissible pursuant to section 32 of the Evidence Act without further formal proof.

28The defendant points to a number of cases, as I have indicated, in which the court has admitted either the Ontario Driver's Handbook, or similar publications dealing with road maintenance or bus operation, as evidence of the standard of care: Montani v. Matthews, 1992 CarswellOnt 1830 (Ont. Ct. Gen. Div.) at para. 187, Ozimkowski v. Raymond, 2018 ONSC 5779 at para. 20, Gardiner v. MacDonald Estate, 2016 ONSC 602, at para. 155. In at least some of those cases, evidence of that nature was first introduced through the medium of a liability witness.

29I have not been referred to any case which the Handbook, or its equivalent, was simply unilaterally filed by a party.

30It seems to me that the debate about how and to what extent the handbook can be used at this trial is more a matter of form than substance. There is nothing to stop pertinent sections of the driver's handbook being put to the expert witnesses who will be testifying at this trial. To the extent that there are any Brown v. Dunne (1893), , 6 R. 67 (H.L.) concerns on behalf of Leslie Lloyd which arise as a result of such questioning, the plaintiffs would be at liberty to apply for her to be called to give evidence in reply.

31But it does not seem to me to be necessary or appropriate, in the somewhat unique circumstances of this case, with the evidence of all of the lay witnesses already forming part of the record at trial as a result of having been marked as exhibits of the opening at trial, for the extracts of the Handbook tendered by the defendant to go in as filed evidence at this time.

Graeme Mew J.

Handed down (orally): 1 May 2019