COURT FILE NO.: CV-17-3440-00
DATE: 2019 09 09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Moffitt v. TD Canada Trust
BEFORE: LeMay J.
COUNSEL: C. Morrison and S. Pickering, for the Plaintiff
D. Zuber and A. Pressé, for the Defendant
ENDORSEMENT
[1] This matter was supposed to proceed to a summary judgment motion this morning. However, there has been an outstanding issue regarding the cross-examination of experts. I was to review the materials filed for the summary judgment motion, and provide the parties with directions on this issue.
[2] As a result, on Friday of last week, my judicial assistant wrote to the parties. The parties were directed to attend this morning, prepared to address the following questions:
a) The experts need to be cross-examined on their qualifications, at a minimum.
b) The experts were not required to attend today, as a discussion about the scope of their cross-examination was necessary.
c) The parties were to come prepared to make submissions on the scope of cross-examinations at today’s hearing.
d) The parties were to come prepared to book further dates for the cross-examination.
[3] The parties duly attended before me today, and I heard submissions. I have made the following additional directions to the parties regarding the next steps:
a) The cross-examination of experts will take place in front of me on March 10th and 11th, 2020. Argument of the summary judgment motion will take place on March 12th, 2020.
b) The Affidavits filed by each side will amount to the examination in chief of each expert. However, fifteen (15) minutes of examination in chief will be permitted, in order to set the stage for the expert’s testimony.
c) The cross-examination of each expert is limited to one hour and thirty minutes.
d) The party tendering the expert shall have fifteen (15) minutes for re-examination.
e) The scope of cross-examination is not limited to qualifications. Instead, it may cover all issues relating to the expert’s reports.
[4] These directions were objected to by the Plaintiff. The Plaintiff’s position was that the matter was too complicated to be dealt with by way of a summary judgment motion and that I should be referring this matter to be heard by the trial judge with a jury. I rejected that argument. I provided brief reasons for doing so on the record this morning. The rest of this decision will provide more complete reasons for my directions.
[5] I start by observing that TD has been seeking to have a summary judgment motion heard in this matter for more than a year and a half. I have expressed concerns in my previous decisions about the Plaintiff’s dilatory approach to this litigation. Those concerns remain.
[6] More importantly, however, TD is entitled to have its summary judgment motion heard. As I indicated to Mr. Morrison in Court, the idea that we would simply determine that this motion was “too complicated” for summary judgment without a full hearing of the motion was not fair to TD. The motion must be heard.
[7] Having determined that the motion must be heard, it is then clear that each party is entitled (and required to) put its best foot forward. Other than cross-examining experts, I presume that the parties have done so. However, neither side has had the opportunity to cross-examine the other side’s experts. The ability to test the other side’s evidence is part of putting your best foot forward. As a result, cross-examinations must be permitted.
[8] As a question of law, the first issue that must be determined is whether the expert reports should be admissible for the purposes of considering the summary judgment motion. This is a threshold question that must be decided before anything else is determined. It is a clear question of law, and is a question that is not to be left to the trier of fact. It is part of the gatekeeper function that judges must exercise (see Bruff Murphy v. Gunawardena 2017 ONCA 502).
[9] As a result, I must determine the admissibility of the expert reports before proceeding with the summary judgment motion. The question is whether the cross-examination should be limited to the expert’s qualifications, or if it should be broader.
[10] I concluded that it should be broader for two reasons:
a) The admissibility of the expert’s evidence is not just limited to their qualifications. It is also determined by looking at the necessity and the reliability of the expert’s evidence. This will necessitate a broader cross-examination.
b) It is possible that I will exercise my powers under Hryniak v. Mauldin (2014 SCC 7) to conduct a mini-trial. Given the considerable expense associated with the expert’s attendance, it makes no sense to have them attend twice
[11] In making this decision, I was mindful of Mr. Morrison’s observations that I am merging the two halves of the procedure under Hryniak, supra. While that is a concern, it can be addressed through argument and careful consideration of the record on my part. It also does not outweigh the concerns that TD should be entitled to put its best foot forward on this motion.
[12] This brings me to the question of where and how these cross-examinations must be permitted. Two options exist. First, the parties could conduct the cross-examinations out of court, and then simply file the transcripts. Second, the parties could conduct the cross-examinations in front of me in open court.
[13] I adopted the second method because it is more efficient. In addition, given the manner in which this litigation has proceeded, there is a real and substantial risk that there would be refusals and disputes over the questions to be asked of the experts. In light of those risks, I am of the view that cross-examination in front of me is a better, more efficient way to proceed.
[14] In making that decision, I was also mindful of Mr. Morrison’s argument that I might end up making conclusions about the demeanour of the experts and credibility findings more generally. Again, this is a concern that can be addressed through argument and careful consideration on my part.
[15] As a final matter, I have some concerns about how we ended up without the cross-examinations of the experts done in advance of the hearing of the motion. I have ordered Court transcripts to review that issue, and will address it as necessary once I have reviewed those transcripts.
[16] The costs of today’s appearance are reserved to me to be determined at the conclusion of the summary judgment motion.
LeMay J.
DATE: September 9, 2019
COURT FILE NO.: CV-17-3440-00
DATE: 2019 09 09
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Moffitt v. TD Canada Trust
BEFORE: LeMay J.
COUNSEL: S. Pickering, for the Plaintiff
A. Pressé, for the Defendant
ENDORSEMENT
LeMay J.
DATE: September 9, 2019