Court File and Parties

Court File No.: 202-2012 Date: 2020-02-06 Superior Court of Justice - Ontario

Re: Nancy-Lee Kuehl and Paul Schaefer, personally, and Nancy-Lee Kuehl, David Barry Kuehl and Paul Schaefer as Estate Trustees for the Estate of Budd Eldon Kuehl, Plaintiffs And: Heather J. Ross and The Ross Firm Professional Corporation, Defendants

Before: Justice R. Raikes

Counsel: Philip B. Cornish, Counsel for the Plaintiffs Sandra L. Barton and Holly V. A. Cunliffe, Counsel for the Defendants

Heard: November 22, 2019

Endorsement

Participant Expert Ruling

[1] The plaintiffs claim damages for, inter alia, solicitor’s negligence by the defendant, Heather Ross.

[2] David Murray is a lawyer who acted for the plaintiff, Nancy-Lee Kuehl (hereafter “Nancy”), on a mortgage transaction with United Communities Credit Union (“UCCU”). He also acted for UCCU on the transaction.

[3] The defendant, Ms. Ross, is a lawyer who acted for the plaintiff’s father, Budd Kuehl (hereafter “Budd”), now deceased, on the same transaction.

[4] Mr. Murray was called by the plaintiffs as a fact witness. He has testified in-chief as to his dealings with Nancy, UCCU, Ms. Ross, and counsel who provided independent legal advice to Nancy’s husband, Paul Schaefer (hereafter “Paul”) on the subject mortgage transaction. The plaintiff, Nancy, has waived solicitor-client privilege for Mr. Murray.

[5] In the course of that examination, plaintiffs’ counsel sought to ask questions of Mr. Murray as to the standard of care that applied to Ms. Ross in her capacity as Budd’s lawyer and whether her conduct fell short of the standard. An objection was made by defence counsel.

[6] No expert report was served pursuant to Rule 53.03. Instead, by letter dated June 14, 2019, plaintiffs’ counsel provided the following “synopsis” of what he anticipated would be the participating expert witness testimony of Mr. Murray:

With respect to the standard of care of an Ontario lawyer on the taking of instructions and preparation of wills and powers of attorney, a lawyer should take adequate notes of client instructions, examine background documents where necessary, including deeds, insurance policies, statements of assets and debts, the availability of estate trustees and/or attorneys, and alternates. Where an elderly person is making a will or power of attorney, and health issues may reasonably be contemplated, care should be taken to ensure that alternate estate trustee(s) or attorney(s) is/are named, particularly an alternate other than a spouse of similar age. Further, the Ross Firm in preparing the Last Will and Testament for Leah Kuehl failed to include a standard provision authorizing the estate trustees to be empowered to undertake the refinancing of any real property owned by the Testator at her death in administering the estate. In the subject action, the Ross Firm failed to meet the standard of care required in preparing wills and powers of attorney for Budd Kuehl and Leah Kuehl.

In the mortgage transaction between Budd Kuehl/Nancy Kuehl and United Communities Credit Union Limited, care should have been taken by Heather Ross, Quinn Ross and the Ross Firm to obtain accurate particulars of the financial circumstances and the debtor/creditor relationship between Nancy Kuehl and the Budd Kuehl. In relying on financial data for the payout of mortgage funds and the allocation of debt payments, care should be taken to ensure that accurate information is obtained from the client. Heather Ross and the Ross Firm did not meet the requisite standard of care in this instance.

The mortgage instructions of United Communities Credit Union Limited, including instructions provided from Bev Britton and Jill McCullough, did not require that title be amended on the 78451 Bluewater Highway property of Nancy Kuehl to tenants in common with Budd Kuehl. Due diligence should have been applied by Heather Ross and the Ross Firm to research and understand the implications and consequences of a tenancy in common in the circumstances between Nancy Kuehl and Budd Kuehl. Heather Ross should have undertaken appropriate steps to ensure that upon payment of the debt obligation to United Communities Credit Union Limited, title to the Bluewater property would have reverted to Nancy Kuehl. Heather Ross and the Ross Firm did not meet the requisite standard of care in this transaction.

[7] During submissions, the plaintiffs withdrew the request to have Mr. Murray opine about the matters in the first paragraph above; they seek to adduce his expert opinion only as to the matters in the final two paragraphs just quoted.

Voir Dire

[8] This is a judge alone trial. The parties agreed to proceed by way of a blended voir dire. It was anticipated that Mr. Cornish would ask such further questions as were necessary to be able to argue the admissibility of the proposed participant expert evidence. Cross-examination by defence counsel would then take place as part of the voir dire; viz. limited to the admissibility determination. Argument would follow with a ruling by me. If permitted, Mr. Cornish would then adduce the opinion evidence and any other factual evidence necessary to finish the examination in-chief, and cross-examination at large would follow.

[9] Instead, Mr. Cornish elicited all of the witness’ factual evidence before tendering Mr. Murray to be qualified as an expert. If the opinion evidence is permitted, he will ask further questions. If not, his examination in-chief is complete. Ms. Barton was given the opportunity to cross-examine on the voir dire but not at large. Submissions were made by both sides. I reserved my ruling. This is my decision.

Background

[10] Nancy acquired title to the property at 78451 Bluewater Highway (“the Bluewater property”) in November 2000. She took title in her name alone. Mr. Murray acted for her on that purchase.

[11] When she purchased the Bluewater property, she gave a mortgage to the Clinton Community Credit Union which later became part of UCCU. As at September 21, 2010, the mortgage balance owing to UCCU was $82,543.89.

[12] Nancy, Paul and their daughter ordinarily resided at the Bluewater property but in the Fall of 2010, Nancy and her daughter were residing with Budd because significant renovations were being done to the Bluewater property. The only bathroom in the home had been gutted. A new roof was put on. A new furnace was to be installed. Additional work was being done.

[13] Budd was, by all accounts, a devoted father and husband. His wife, Nancy’s mother, Leah, was in a long-term care facility suffering from dementia in the form of Alzheimers.

[14] Budd had been a local contractor. He had built homes in the Clinton area. Budd was involved in hiring and directing some of the renovations to the Bluewater property. He paid some of the expenses directly.

[15] In September 2010, Nancy approached UCCU for additional financing for the renovations. Budd was a long-time customer of UCCU with an excellent credit history. He previously co-signed a loan for his son’s home in Clinton. He held a 1 % interest in that property.

[16] On September 21, 2010, Nancy signed a consumer mortgage application to borrow an additional $60,000 from UCCU. Budd was a co-borrower. Because Budd was a co-borrower and had a long and excellent relationship with UCCU, a lower interest rate was given.

[17] According to the internal loan submission made by Ms. Britton of UCCU and Nancy’s testimony, at least $20,000 of the $60,000 was going to repay debt owing by Nancy to her father.

[18] On October 18, 2010, Mr. Murray received a telephone call from Heather Ross. Ms. Ross advised she would be acting for Budd on the mortgage transaction with UCCU. She advised that: 1) Budd would be going on title as a 50% owner; 2) he had a line of credit for $109,000 which was at $96,000; 3) most of that money borrowed was used to help Nancy; and 4) Paul was using Budd’s credit card.

[19] On October 19, 2010, Mr. Murray received a telephone call from Nancy asking that he act for her on the mortgage with UCCU. She indicated that Heather Ross was going to fax the paperwork to him.

[20] On the same date, he received mortgage instructions from UCCU by fax to act as its lawyer on the mortgage transaction. The instructions specified that Nancy and Budd would be chargees. UCCU required that Budd have independent legal advice. The mortgage instructions say nothing about how title was to be held nor the percentage interest to be owned by Budd.

[21] Because the Bluewater property was the matrimonial home and Nancy was going to transfer an interest in same to her father, Paul obtained independent legal advice. He retained Frank Cameron of Clinton for that purpose.

[22] As advised, Heather Ross acted for Budd on the mortgage and related transfer of title transactions. The Ross Firm had acted for Budd for several years. Ms. Ross had acted for Budd on the most recent iteration of his Last Will and Testament executed October 15, 2010.

[23] On October 19, 2010, Ms. Ross wrote to Mr. Murray enclosing the original mortgage instructions from UCCU, the parcel register and a copy of the existing mortgage, and a copy of the appraisal of the Bluewater property. She also provided Nancy’s phone numbers. Ms. Ross indicated that in order to complete the transaction, the following would be required:

1. Title to the Bluewater property was to be placed in the names of Nancy and Budd, as tenants in common, each as to a 50% interest;
2. The mortgage funds would be advanced by UCCU to his firm in trust and from these funds the existing mortgage, his fees and disbursements and two debts owing by Nancy must be paid. The two debts were an outstanding oil company account of $382 and property tax arrears of $3,000; and
3. A direction and agreement from Nancy that the net proceeds would be paid to the Ross firm in trust from which Budd would receive $40,000 to pay down his line of credit. The remainder would be held in her firm trust account to be used for the renovations to Nancy’s residence and paid out on Budd’s direction and based on invoices from third-party contractors. Upon completion of the renovations, any balance in the account would be paid equally to Budd and Nancy. Ms. Ross indicated that Budd’s line of credit represented money loaned to Nancy with the expectation that it be repaid.

[24] Mr. Murray testified that he spoke with Nancy by telephone on October 20, 2010. He agreed to email to her the first three pages of Ms. Ross’ October 19, 2010 letter. She agreed that the oil bill and tax arrears be paid. She was upset by the money being held in trust by the Ross firm and indicated that “dad does NOT want this”. She advised Mr. Murray that her father owned only a 1% interest in her brother’s house in Clinton.

[25] Nancy left a voicemail message for him on October 21, 2010. She asked him to give her a call. She indicated in the voicemail that she was okay with the house being 50-50 with her father but disagreed with the trust fund arrangement indicated by Ms. Ross.

[26] Mr. Murray spoke to her by phone on October 21, 2010. She agreed to a 50/50 split on the mortgage but did not want any money to be held by Ms. Ross. The money was simply to be put into her father’s account. She agreed that the oil and property tax arrears would be paid. She indicated that her father’s 50% would come back to her when he passed away. She would trust him to change his Will and did not need an option to purchase, an alternative she had discussed with Mr. Murray.

[27] Mr. Murray then left a voicemail message for Ms. Ross on October 21, 2010. According to his notes and testimony at trial, he advised Ms. Ross that he had instructions to put title to the Bluewater property in Nancy and Budd’s names equally. He also advised, inter alia, that after the $40,000 was paid to Budd, the balance owing to him by Nancy and Paul was zero. Further, Budd was going to be changing his Will.

[28] Ms. Ross contacted Mr. Murray by telephone on October 21, 2010 after receiving his voicemail message. He testified that she advised that there was no clause in the Will regarding the Bluewater property. She also indicated that Budd had paid $3,000 to the roofer in cash and Paul was using Budd’s credit card and had put $10,000 on it. She wanted the money paid to the Ross firm in trust in order to protect Budd. According to his notes, Mr. Murray wrote:

• need to do a set off on the transfer what is owed
• I need a letter from Heather confirming what is owed by Nancy to her father so we can finalize the deal
• I will sit down with Nancy after I receive her letter

[29] As requested by him, Ms. Ross wrote to Mr. Murray via fax on October 22, 2010. She wrote:

Further to telephone conversation today I write to confirm that the indebtedness of Nancy-Lee Kuehl and her spouse Paul Schaefer to our client Budd Kuehl is, according to our client and Bev Britton of the United Communities Credit Union, as follows:

Line of Credit drawn $55,000 and broken down as follows:

• pay down Budd’s Royal Bank credit card – charges by Paul Schaefer – $30,000
• paid to Credit Union loan for Nancy and Paul – $10,000
• paid to roofer for Nancy Kuehl - $5000
• paid for Nancy’s car – $10,000

Total drawn on L of C for Nancy Kuehl and Paul Schaefer: $55,000

Paul Schaefer use of Budd Kuehl’s credit card $10,000 (plus additional charges put on by Paul Schaefer since Sept. 2010.)

Estimated interest paid by Mr. Kuehl on all credit – L of C and Royal Bank credit card – $5000

Mr. Kuehl provided the down payment and paid the closing costs when Nancy purchased the property – $5000

Mr. Kuehl has also paid debt for Nancy Kuehl historically the precise amount of which is not available but well exceeds $10,000 minimum.

Estimate of debt owed by Nancy-Lee Kuehl and Paul Schaefer to Budd Kuehl:

Total DEBT: $75,000+

As he is now going to be jointly and severally liable for the new mortgage of $143,000+- the Credit Union requires that his name go on title as to a minimum of 50% as tenant in common. The preferred rate of interest on the new mortgage is due solely to Mr. Kuehl’s excellent credit rating. This is another benefit accruing to Ms. Kuehl.

…Given that the new mortgage is $143,000 and the appraisal is $220,000 the realizable proceeds from a sale (if one took place within the next year) would likely be in the range of $200,000 after commission and sales costs.

The net after the mortgage is $57,000+-

Of the minimum $75,000 owed by Nancy and Paul to Mr. Kuehl it will be paid down by $40,000 from the new mortgage, leaving 35,000 still owing at a minimum. The difference between what will be owed to Mr.Kuehl and the available estimated equity is about $22,000 ($57,000 $-35,000) and we have not calculated anything for interest - the interest he will have to pay on the credit card and the interest he has to pay in the future on the line of credit for amounts paid for Nancy but not repaid out of the mortgage proceeds.

Under all the circumstances the agreement should provide that in the above scenario Mr. Kuehl should receive all of the proceeds of the sale should it occur in the manner anticipated in the foregoing paragraphs.

We will need an acknowledgement and direction signed by your client and her spouse and to be signed by our client as well, encompassing all of the foregoing terms.

I look forward to hearing from you and ask whether you are in a position to advise when we can close the transaction. The roof is almost finished and Mr. Kuehl is responsible for paying the balance of the roofing bill.

He would like to pay the balance of $1600 by the end of next week. In addition a new furnace is being ordered from Sparlings. The quote is for $6000 and Mr. Kuehl will need to provide a $3000 deposit for them to start work.

Thank you for your ongoing assistance.

I look forward to hearing from you once you have had an opportunity to meet with your client.

[30] Mr. Murray met with Nancy at his office on Friday, October 22, 2010. He provided to her a copy of Ms. Ross’s letter of the same date. Suffice to say that Nancy was very displeased and upset. She did not agree with the alleged debts or the amounts stated in Ms. Ross’ letter and indicated to Mr. Murray that they needed to educate Ms. Ross. Mr. Murray testified that he was not in the business of educating another lawyer.

[31] He testified that Nancy indicated that she was going to discuss the matter with her father that weekend. She did not provide instructions at that point. Mr. Murray needed direction from her as to the mortgage transaction, how title to the property was going to be taken, the alleged debts owing to Budd, and the use of the new monies being advanced by UCCU.

[32] Mr. Murray testified that he received a telephone call from Nancy on Monday, October 25, 2010. She told him to go ahead with the way things were. She indicated that she had spoken with her father and based on those discussions, she was prepared to go ahead with the mortgage transaction; her father would go on title as a tenant in common holding a 50% interest.

[33] The transaction closed on November 1, 2010. On that date, Nancy attended Mr. Murray’s office and met with him. She signed a direction with respect to preparation of the deed showing Nancy and Budd as tenants-in-common each as to a 50% interest. The direction expressly states:

Joint tenants own the land equally together and when one owner dies, the land passes automatically to the other joint tenant. Tenants-in-common can own the land in disproportionate shares, and when one owner dies, his/her share passes to his/her estate, not to the other tenant-in-common.

[34] Mr. Murray testified that he discussed and explained to her the difference between joint tenancy and tenants in common.

[35] Nancy also signed an acknowledgement regarding the transfer which states:

I acknowledge instructing you to prepare and register the above transfer (being a 50% undivided interest to my father for natural love and affection), notwithstanding that the United Communities Credit Union Limited had the property appraised at $223,000 and the principal amount of the charge is $142,543.89 and I may be indebted to my father which I did not require you to confirm (as I am trusting my father to do the right thing).

[36] Budd died unexpectedly on November 18, 2010. No changes were made to his Will executed October 15, 2010 before he died.

[37] In cross-examination on the voir dire, Mr. Murray testified that:

1. He explained the pros and cons to Nancy of going ahead with the mortgage transaction whereby Budd would be a 50% tenant-in-common;
2. He laid out two options: 1) verify what is owed to Budd and what was a gift from him before the transaction was completed or 2) go ahead and trust Budd to do the right thing;
3. He understood from Nancy that she could not finish the renovations or repay Budd any debts owed to him without the loan monies;
4. Nancy indicated that they were using Budd’s line of credit but was unsure how much and doubted it had to be repaid;
5. He could not recall what she said was debt and what was gift. That could not be confirmed without documentation;
6. He never asked Ms. Ross for corroborating documentation for the debts set out in her October 22, 2010 letter because he was not instructed to do so. He was instructed to go ahead with the mortgage transaction;
7. He gave Nancy an alternate approach: an option to purchase. He told her that relying on her father to do the right thing, i.e. change his Will, carried risk. He might not change it. He might change it back later;
8. She should or could have put other steps in place to protect herself but “she chose a different path”;
9. He never looked at Budd’s Will or POA;
10. He has no knowledge what information Ms. Ross had to inform her advice to Budd;
11. To know if Ms. Ross gave Budd appropriate advice, he would have to know what advice she gave Budd and what instructions she received from Budd. He had neither piece of information;
12. Nancy did not ask him to inquire whether Ms. Ross could corroborate the debts she had indicated Budd said he was owed. Nancy chose not do so. She followed the “practical approach” rather than the technical approach;
13. He did not ask Ms. Ross to have the property revert to Nancy on Budd’s death or when the mortgage was paid off;
14. He agreed that he owed a duty of loyalty to Nancy on the mortgage transaction. That duty continues; and
15. He had no idea that he was going to asked to give expert evidence until approximately two weeks before he testified and only saw the June 14, 2019 letter from Mr. Cornish the day before.

[38] I have included the substance of Mr. Murray’s evidence to provide context for the participant expert issue.

Plaintiffs’ Position

[39] The plaintiffs submitted that:

1. The Mohan/White Burgess criteria are met. a) The evidence to be adduced is relevant to the issues; b) The evidence may not be necessary since a judge has legal training and experience and not every solicitor’s negligence case requires an expert on standard of care. However, the evidence would assist me as the trier of fact; c) Mr. Murray has 20+ years experience doing mortgage and real estate transactions. He is eminently qualified to opine on standard of care; d) There is no other evidentiary rule barring admissibility; e) Mr. Murray is impartial and independent. He is not a paid r. 53 expert. His evidence already given shows that he is impartial;
2. Mr. Murray was directly involved in the subject transactions;
3. His advice to Nancy was shaped by the letters and conversations with Ms. Ross. He had to have formed opinions based on the information she provided and that informed how he engaged with Nancy; and
4. He was clearly not satisfied at the time with the answers received from Ms. Ross as to debts allegedly owed to Budd. Therefore, he must have formed an opinion as to whether Ms. Ross had acted as a reasonable and prudent solicitor in the letters she wrote.

[40] Mr. Cornish agreed that he did not ask Mr. Murray whether he had formed any opinions. He felt constrained to do so; viz. that line of inquiry had to await the outcome of my ruling.

Defendants’ Position

[41] The defendants submitted that:

1. The failure to ask Mr. Murray whether he formed an opinion at the time is fatal. There is no evidence that he did;
2. There was nothing in his role as counsel for Nancy or UCCU that required him to form an opinion as to the appropriateness of Ms. Ross’ conduct;
3. His retainer did not require that he form an opinion that Ms. Ross needed to corroborate the debts that Budd said were owed or whether she had sufficient corroboration of those debts at the time. He did not need to turn his mind to same to do his job;
4. He agreed that in order to know if Ms. Ross gave Budd appropriate advice, he would need to know what advice she gave him and what instructions she received. He had neither piece of information;
5. He reviewed the October 22, 2010 letter with Nancy. She never instructed him to seek corroboration of the debts and he did not do so. She chose to go ahead with the transaction;
6. He never spoke to Ms. Ross about reversion of title on Budd’s death or if the mortgage was paid off;
7. The Mohan/White Burgess criteria are not satisfied. Although qualified by his many years doing real estate transactions, he is not impartial or independent. He owed a duty of loyalty to Nancy then and considers that he still owes such a duty today in respect of the mortgage transaction. Moreover, he has an interest in the outcome of the litigation because the court could find that he ought to have advised Nancy differently; and
8. The prejudicial effect of allowing this evidence far outweighs any probative value.

Law and Analysis

[42] Rule 53.03 requires a party who intends to call an expert witness at trial to deliver an expert report signed by the expert containing the information listed in subrule (2.1). Rule 53.03(2.1) requires that the expert report include, inter alia, the expert’s name, area of expertise, qualifications, and his/her opinion on each issue to which the opinion relates. The expert must provide reasons for the opinion(s) expressed including any factual assumptions, the research done to arrive at the opinion and a list of every document relied on in forming the opinion. The expert is required to sign an acknowledgement of expert’s duty (Form 53).

[43] The leading decision on participant experts is Westerhof v. Gee Estate, 2015 ONCA 206. The issue in Westerhof was whether r. 53.03 applied only to experts described in r. 4.1.01 and Form 53 – experts engaged by or on behalf of a party to provide opinion evidence in the proceeding - or does the rule apply to all witnesses with special expertise who give opinion evidence: Westerhof, at para. 6.

[44] Justice Simmons distinguished those experts hired to provide an expert opinion that are captured by r. 4.1.01 and Form 53 (“litigation experts”) from “participant experts” and “non-party experts”. The latter are experts retained by a non-party like a statutory accident benefit provider “who form opinions based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation”: para. 6.

[45] At paras. 60-64, Justice Simmons wrote:

60. Instead, I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where:
    • the opinion to be given is based on the witness’s observation of or participation in the events at issue; and
    • the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.
61. Such witnesses have sometimes been referred to as “fact witnesses” because their evidence is derived from their observations of or involvement in the underlying facts. Yet, describing such witnesses as “fact witness” risks confusion because the term “fact witness” does not make clear whether the witness’s evidence must relate solely to their observations of the underlying facts or whether they may give opinion evidence admissible for its truth. I have therefore referred to such witnesses as “participant experts”.
62. Similarly, I conclude that rule 53.03 does not apply to the opinion evidence of a non-party expert where the non-party expert has formed a relevant opinion based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation.
63. If participant experts or non-party experts also proffer opinion evidence extending beyond the limits I have described, they must comply with rule 53.03 with respect to the portion of their opinions extending beyond those limits.
64. As with all evidence, and especially all opinion evidence, the court retains its gatekeeper function in relation to opinion evidence from participant experts and non-party experts. In exercising that function, a court could, if the evidence did not meet the test for admissibility, exclude all or part of the opinion evidence of a participant expert or non-party expert or rule that all or part of such evidence is not admissible for the truth of its contents. The court could also require that the participant expert or non-party expert comply with rule 53.03 if the participant or non-party expert’s opinion went beyond the scope of an opinion formed in the course of treatment or observation for purposes other than the litigation.

[46] Both counsel cited and relied on my decision in XPG v. Royal Bank of Canada, 2016 ONSC 3508. At paras. 24- 26, I wrote:

24. For opinion evidence from a participant expert to be admissible, I must be satisfied that:
    1. the evidence meets the criteria applicable to all expert evidence;
    2. the opinion which the particular participant expert seeks to give is based upon his or her observation of or participation in the events at issue; and
    3. the witness formed that opinion as “part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events ”. [Emphasis added.]
25. The law is well-settled as to the criteria applicable to all expert opinion evidence. To be admissible, the following criteria must be met:
    1. the evidence is relevant to some issue in the case;
    2. the evidence is necessary to assist the trier of fact;
    3. the evidence does not contravene an exclusionary rule; and
    4. the witness is a properly qualified expert: R. v. Mohan, [1994] 2 S.C.R. 9.
26. The party seeking to tender the expert evidence has the evidential and legal burden to satisfy these criteria on a balance of probabilities: R. v. J. (J.-L.), [2002] 2 S.C.R. 600 at paras. 36 and 50.

[47] In addition, if the expert lacks independence and impartiality, the evidence may be excluded when proffered. Where the evidence does not go that far but there are concerns about the expert’s independence and impartiality, those concerns should be taken into account in the overall weight to be accorded that evidence: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 at paras. 2 and 45.

[48] With respect to the Mohan/White Burgess criteria, I find as follows:

1. Evidence as to the standard of care applicable to the defendant is relevant to the issues in the action. Breach of the standard of care is an essential component of the cause of action;
2. Such evidence would assist me as the trier of fact although I do not rule out the possibility at this point that I may be able to determine the issues without it;
3. The evidence does not contravene an exclusionary rule;
4. Mr. Murray has extensive experience as a solicitor in real estate transactions and related business dealings. I am satisfied that he is qualified to give expert opinion evidence on the standard of care in these circumstances; and
5. I have carefully observed Mr. Murray and paid particular attention to the answers he has provided to determine whether his responses have shown partiality to the plaintiffs. To the contrary, Mr. Murray has been candid and at times disagreed with the implicit suggestion in questions that Ms. Ross acted inappropriately. Although he indicated a duty of loyalty to Nancy on the transaction, I do not consider that acknowledgement to equate to answering questions in a way favourable to her regardless of the truth. The concerns raised by defence counsel do not rise to the level that necessitate the exclusion of the proposed evidence from this witness.

[49] I agree with defence counsel that the evidence adduced to this point does not show that Mr. Murray actually formed any opinions as to the appropriateness of Ms. Ross’ conduct on the mortgage transaction or subsequently, nor would I conclude that he must have done so in order to do his work. If that were the only concern, I would permit plaintiffs’ counsel to ask whether he formed an opinion at the time as to whether Ms. Ross or her firm had acted appropriately. However, the admissibility of the proposed evidence has deeper problems.

[50] In my view, the plaintiffs’ request to adduce evidence from Mr. Murray as to the standard of care and whether Ms. Ross or her firm breached that standard of care must fail because,

1. The applicable standard of care is an objective standard or measure;
2. His opinion as to what the standard of care is not one that is based upon his observation of or participation in the events at issue. It is not and could not be an opinion derived as part of the ordinary exercise of his skill, knowledge, training and experience while observing or participating in the events in question;
3. Any opinion Mr. Murray might have as to what the standard of care was arises from his 20 plus years experience doing this type of work, not from participating in or observing the events at the time;
4. Standard of care is the “bread and butter” of litigation experts. The experts opine as to what the standard is across the profession, not merely for Ms. Ross;
5. Without the standard of care, his opinion as to the adequacy of her conduct is unhelpful and lacks probative value.

[51] As indicated at paras. 63 and 64 in Westerhof, where the participant expert goes beyond the limits of what is permissible for a participant expert, an expert report that complies with r. 53.03 is required. There is no such report in this case.

[52] Further, I note that Mr. Murray clearly indicated in cross-examination that he could not evaluate the appropriateness of the advice Heather Ross provided to Budd without knowing what advice she gave him and what instructions she received. He had neither piece of information. Likewise, how could he possibly opine that Ms. Ross or her firm failed to research and understand the implications of a tenancy-in-common when he was not privy to what she did or did not do?

[53] In his synopsis, plaintiffs’ counsel indicated that Mr. Murray would testify that Heather Ross should have taken appropriate steps to ensure that upon payment of the debt obligation to UCCU, title to the Bluewater property would have reverted to Nancy. Once again, that opinion requires evidence of standard of care which Mr. Murray cannot provide. There is no evidence that Mr. Murray was privy to the instructions received from Budd by Ms. Ross.

[54] Accordingly, I decline to permit Mr. Murray to provide opinion evidence as to the standard of care applicable to Ms. Ross and whether she or her firm breached same. I note that the first sentence of the last paragraph of the June 14, 2019 letter refers to the mortgage instructions from UCCU. That is factual evidence already adduced from him.

Justice R. Raikes Date: February 6, 2020