Court File and Parties

COURT FILE NO.: CV-05-287428-00CP DATE: 20210301 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: FLYING E RANCHE LTD. Plaintiff

AND:

THE ATTORNEY GENERAL OF CANADA on behalf of HER MAJESTY THE QUEEN IN RIGHT OF CANADA as represented by THE MINISTER OF AGRICULTURE Defendant

BEFORE: Paul B. Schabas J.

COUNSEL: Malcolm Ruby, Duncan Boswell, Rachel McMillan, Andrew Locatelli and Cameron Pallett for the Plaintiff William Knights, Cynthia Koller, Victor Paolone and Adam Gilani for the Defendant

HEARD: February 25, 2021

Ruling on Admissibility of the Expert Reports

[1] The common issues trial in this matter began on February 16, 2021. The case arises from the impact of an outbreak of Bovine Spongiform Encephalopathy (“BSE”), known as “mad cow disease,” on Canadian farmers. The outbreak occurred in Canada in and after 2003. The defendant is the federal government which, it is alleged, was negligent in failing to prevent BSE from entering Canada and infecting Canadian cattle.

[2] The trial is expected to continue for several months as both sides will be presenting extensive evidence, including evidence from expert witnesses.

[3] The trial date was set almost two years ago on March 15, 2019 by Perell J., who has been case managing the action. It was expected that the trial would last 40 - 60 days.

[4] However, at the pre-trial conference before Glustein J. in October 2020, counsel for the defendant indicated that their own case, comprising 29 witnesses, would take approximately 62.5 days for the evidence-in-chief alone, more than doubling the anticipated length of the trial. Consequently, after reviewing with counsel a “hybrid” process by which much of the evidence-in-chief would be produced by way of affidavit, with very limited examination-in-chief and targeted cross-examination based principally on affidavits exchanged before trial, Glustein J. ordered that the trial proceed in a hybrid manner and allocated time accordingly to ensure the evidence at the trial would be completed in approximately 77 days. [1]

[5] Glustein J.’s endorsement of October 22, 2020 set a schedule for the exchange of affidavits and additional expert reports and other steps leading to the commencement of the trial. In addition, he noted estimated times for a number of the witnesses, including the plaintiff’s experts. Much of this background is set out in my Reasons on Motion for Adjournment dated December 24, 2020: Flying E. Ranche Ltd. v. Attorney General of Canada, 2020 ONSC 8072.

[6] Based on this hybrid approach, Glustein J. ultimately allocated 19 days for the plaintiff’s case, including cross-examinations and read-ins. In doing so, Glustein J. stated that the plaintiff “will lead evidence in chief by affidavit…and will have their experts give evidence based on their reports. The witnesses will be briefly examined in chief based on their affidavits or reports, with the current timing anticipated at (i) 2 days total for Thorlakson and Sears (ii) one day total for Dr. Beckett and Dr. Leiss, (iii) one day for Dr. Groenewegen, and (iv) two hours for Eaton.” [emphasis added] Thorlakson and Sears are fact witnesses, but Beckett, Leiss, Groenewegen and Eaton are experts.

[7] Later in his October 22, 2020 endorsement Glustein J. reiterated that the plaintiff “would present lay witnesses evidence by affidavit … and expert evidence by the report, with brief examinations in chief as set out above.”

[8] Although counsel for the defendant has noted more than once to me that they did not consent to this “hybrid” approach, both parties have prepared for the trial accordingly. There has been no suggestion that the hybrid approach be revisited, nor did the defendant seek to appeal the orders of Glustein J. Indeed, even when the defendant sought an adjournment of the trial in December, it did not challenge the hybrid approach; rather, its concern was about having enough time to prepare written evidence.

[9] The hybrid approach is not uncommon. It has been used effectively in many cases. It improves trial efficiency and reduces the length of trials. The process facilitates access to justice. In another lengthy and dated matter, which began as a class action and which, like this case, involved extensive factual and expert evidence, Morgan J. directed a trial to proceed in a hybrid manner: Barker v. Barker, 2018 ONSC 3998. At paragraph 13 of his Trial Management Endorsement he stated:

In addition, although I am cognizant of the need for the Defendants to present a full answer and defence to the claims, they cannot use that shield as a sword by making matters so complicated and lengthy as to undermine the very possibility of a trial. Accordingly, this trial will be conducted as a hybrid trial, partly on affidavit evidence and partly on viva voce evidence. The option to proceed in either way was specifically left open to me by the Court of Appeal, and a hybrid procedure will hopefully combine the most advantageous aspects of each. The aim is to expedite the trial by dispensing with live testimony where it is not necessary, without eliminating either side's right to present all of its own evidence and fully test the opponent's evidence.

[10] This trial is proceeding with an electronic record using the Caselines platform. The parties have been uploading their evidence to that platform, including the affidavits and expert reports. Although there may be some issues as to admissibility of some of the affidavits and expert evidence, which will be dealt with when that evidence is reached, [2] counsel have agreed that I may review the evidence filed on Caselines in advance, including the expert reports.

[11] The reports, and supplementary reports, of the plaintiff’s experts - Drs. Beckett, Leiss and Groenewegen [3] - have been provided to me as exhibits attached to brief affidavits sworn by each of them. The affidavits are all similar, containing biographical information relating to their qualifications, what they were asked to do, and their confirmation of their duty to provide opinions that are fair, objective and non-partisan, among other things. The affidavits do not address or summarize their opinion evidence, which is contained in their reports. I note that the defendant has also uploaded its expert reports, but without affidavits.

[12] The defendant now objects to the hybrid process for the plaintiff’s experts, arguing that the plaintiff’s expert reports are not admissible other than as an “aid” for me, and that the experts should give their evidence in chief viva voce. The defendant cites the Court of Appeal’s decision in 1162740 Ontario Limited v. Pingue, 2017 ONCA 52, at para. 19, which states:

Although expert reports are exchanged and form the basis for examination-in-chief and cross-examination at trial, the expert evidence before the trial court is usually the viva voce evidence of the expert, and not the report the expert provided before trial: see Ontario Courtroom Procedure, at p. 1004- 1005. There is an exception, which relates to the reports of practitioners under the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, the Drugless Practitioners Act, R.S.O. 1990, c. D.18 and other similar legislation in Canada, whose reports are governed by s. 52 of the Evidence Act, R.S.O. 1990, c. E.23: see Ontario Courtroom Procedure, at p. 1004-1005; and Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523, at para. 131.

[13] Pingue arose in the unusual circumstance of the Court of Appeal determining what should be before it on an appeal in which expert evidence had been excluded at trial. The appellant wished to include the report of the excluded expert in the appeal book so that the Court could see what was excluded. Lauwers J.A. agreed, observing that without it, “it will be difficult, if not impossible, for the appellants to argue their main ground of appeal.” This led the Court to make its comments on expert reports generally, quoted above.

[14] I do not regard the holding in Pingue as preventing the admission of the expert reports as evidence. The court states only that the expert evidence is “usually” viva voce. However, the discussion focused on jury trials and the practice of not allowing juries to see expert reports. The court recognized, at para. 22, that “[i]n non-jury civil trials expert reports are sometimes made numbered exhibits on consent” and that the “practice in the Toronto Commercial List, for example, is for such reports to be made numbered exhibits.”

[15] Production and exchange of expert reports is addressed in Rule 53.03 of the Rules of Civil Procedure. In Moore v. Getahun, 2015 ONCA 55, Sharpe J.A. discussed the Rule beginning at para. 36, stating:

Rule 53.03 establishes the framework that parties must follow when they intend to call an expert witness at trial. The rule requires a party to provide a signed report from the expert witness not less than 90 days before the pre-trial 2015 ONCA 55 conference or, in the case of a responding report, not less than 60 days before the pre-trial conference (rules 53.03(1), (2)). Rule 53.03(3) provides that 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 is set out in writing in compliance with the other provisions of the rule.

[16] The main purpose of Rule 53 is to provide disclosure to the other side of the substance of the expert’s evidence. Reports tend to be detailed and provide far more than an ordinary summary or “will-say”, but even then an expert may elaborate on his or her report when testifying. The reports are usually referred to and followed in the expert’s examination-in-chief and used in cross-examination. Judges at trials, whether jury trials or judge alone trials, are provided with copies of the reports and, as the Court of Appeal observed in Pingue, may be made exhibits.

[17] Moore v. Getahun is well-known for its discussion of the role and involvement of counsel in preparing expert reports. It confirmed, at para. 63 that counsel is:

to ensure that the report (i) complies with the Rules of Civil Procedure and the rules of evidence, (ii) addresses and is restricted to the relevant issues and (iii) is written in a manner and style that is accessible and comprehensible. Counsel need to ensure that the expert witness understands matters such as the difference between the legal burden of proof and scientific certainty, the need to clarify the facts and assumptions underlying the expert’s opinion, the need to confine the report to matters within the expert witness’s area of expertise and the need to avoid usurping the court’s function as the ultimate arbiter of the issues.

[18] At para. 86 of Moore v. Getahun, Sharpe J.A. addressed the issue that had arisen in that case, in which the trial judge referred to and used the report in her decision as if it was testimony, but it had not been made an exhibit:

If an expert’s report has not been entered into evidence as an exhibit, it has no evidentiary value, even if provided to the trial judge as an aide memoire. Inconsistencies between the viva voce evidence of an expert witness and his or her written report are the proper subject of cross-examination. However, if the expert witness was not cross-examined as to an inconsistency between his or her viva voce evidence and the contents of their report, it is not open to a trial judge to place any weight in assessing the expert’s credibility on this perceived inconsistency. This is not a mere technicality but rather a matter of trial fairness. The expert witness is entitled to be openly confronted with what may appear to be contradictions so that he or she has the opportunity to explain or clarify the apparent inconsistencies. [emphasis added]

[19] I have emphasized the opening word of the quote above – the word “if” - as it is an implicit recognition by Sharpe J.A. that expert reports can be made exhibits, as indeed they often are. Had the report been made an exhibit in that case the issue would not have arisen, although the Court of Appeal did not find that the trial judge’s error warranted a new trial.

[20] The defendant relies on paragraph 86 of Moore v. Getahun, suggesting that if I admit the reports as, effectively, evidence-in-chief it may limit my ability to assess the credibility of the experts as I will not have the benefit of a full presentation by each of them. Counsel for the defendant described this as “problematic.” He also submitted that inconsistencies between the expert’s testimony and the report may be less likely to emerge, presumably because the experts will not provide their opinion verbally in-chief. Related to that, the defendant says that, at the very least, the expert affidavits ought to contain a summary of their opinion.

[21] I disagree with the defendant’s submission which, in effect, seeks to revisit the orders of Glustein J. that the trial will proceed in a hybrid manner as outlined and scheduled by him. Indeed, there is merit in the plaintiff’s submission that the defendant’s objection constitutes an improper collateral attack on Glustein J.’s orders: R. v. Wilson, [1983] 2 S.C.R. 594, at para. 8. Carleton Condominium Corp. No. 396 v. Burdet, 2016 ONCA 394, 2016 CarswellOnt 8330 at para. 8.

[22] Perhaps more importantly, however, I do not accept that the court is hindered in its fact-finding process, or that the defendant is prejudiced by the approach ordered by Glustein J. that experts may present their evidence “by the report, with brief examinations in chief.” Whether they swear affidavits or not, the experts for both sides will be called to testify under oath or affirmation to confirm their report as their opinion evidence and will address some of the contents of their reports in their examination-in-chief. They will then be subject to cross-examination by the opposing party. Cross-examination is the place to confront and challenge a witness’s evidence, and expose inconsistencies should they arise.

[23] The plaintiff’s three experts are expected to testify over approximately 8 days remaining in the schedule for the plaintiff’s case, beginning on March 3, 2021. The defendant’s counsel will have ample time to cross-examine each expert, challenge their assumptions and conclusions and, as Morgan J. put it in Barker v. Barker, “fully test the opponent's evidence.”

[24] Further, if there are concerns about the expertise of a witness and/or the admissibility of the contents of a report, they can be raised, as they would be in any trial, when that evidence is tendered. Nor do I see any problem with the affidavits not containing a summary of the reports. The reports have been produced and provide complete notice of the experts’ evidence. In a non-hybrid trial, the opposing side would not be entitled to more than the report as notice of the evidence.

[25] This is not a jury trial, and the concerns with providing expert reports to juries do not apply in this case. Rather, this is a hybrid trial before a judge alone in which the parties have been on notice for several months that the reports would be relied on as direct evidence. The same rules apply to both sides. Furthermore, to change the process and require each expert to provide all of their evidence viva voce would lengthen the trial significantly for little, if any, benefit.

[26] As the trial judge, I have the discretion to admit the expert reports as evidence and, subject to any objections as to the admissibility of the content of the opinion evidence or the qualifications of the witness, I will do so in this trial so that it may proceed as ordered by Glustein J.

Paul B. Schabas J. Date: March 1, 2021

Footnotes:

[1] In his endorsement of October 22, 2020 Glustein J. allocated 70 days for the trial, not including closing arguments. Following a case conference on November 18, Glustein J. extended the length of the trial to 77 days.

[2] On February 25, for example, I made a ruling on an objection to some of the contents of the affidavit of a fact witness who was about to testify, on the ground that it contained inadmissible hearsay.

[3] By agreement, the expert evidence of Mr. Eaton is not being presented at this stage of the trial, and the plaintiffs are only presenting two fact witnesses – both of whom have sworn detailed affidavits which will be entered as part of their evidence-in-chief.