Apex Sound & Light Corporation v. 1878170 Ontario Ltd., 2021 ONSC 5998

Court File and Parties

COURT FILE NO. 94108/15 SR

DATE: 20210909

SUPERIOR COURT OF JUSTICE - ONTARIO

Apex Sound and Light Corporation, Plaintiff

• and -

1878170 Ontario Ltd., o/a Ashen White Audio Visual Executives, Defendant

• and –

Metalworks Productions Inc., Third Party

BEFORE: S.T. Bale J.

COUNSEL: Kyle Armagon, for the plaintiff

Michael Simaan, for the defendant

Arnold Schwisberg, for the third party

HEARD: in writing

ENDORSEMENT

1This is a simplified procedure action to be tried next week. The evidence in chief of the defendant Ashen White is contained in an affidavit of Kenneth Boyd, sworn September 28, 2018.

2Metalworks moves for an order striking out certain paragraphs of the affidavit on two grounds. First, it moves for an order striking out paragraphs 3, 4, 5 and 34 “for seeking to introduce, without leave, information and evidence based on Mr. Boyd’s industry knowledge and experience, which was refused on discovery.” Second, it moves to strike out paragraphs 10, 17, 19, 20, 21 and 22 of the affidavit on the ground that they are “based on information and belief, instead of being confined to personal knowledge.”

3For the reasons that follow, paragraphs 3 and 22 of the affidavit will be struck out, but the motion will otherwise be dismissed.

Paragraphs relating to Boyd’s industry knowledge and experience

4With respect to paragraphs 3, 4, 5 and 34 of Mr. Boyd’s affidavit, Metalworks’ counsel relies upon rules 31.07(2), 34.15(1)(c) and 53.08(2). Rule 31.07(2) provides that if a party refuses to answer a question on discovery, the party may not introduce at the trial the information not provided, except with leave of the trial judge. Rule 34.15(1)(c) provides that where a person being examined refuses to answer a proper question, the court may strike out any affidavit made by that person. Rule 53.08(7)(2) provides that if evidence is admissible only with leave of the trial judge under rule 31.07, leave shall be granted 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.

5At the examination of Cameron Butler for discovery upon behalf of Ashen White, Metalworks’ counsel requested an undertaking to ask Mr. Boyd if he agreed that if the light fixtures were wet, it would not be a good idea to leave them in that state for any period of time. Counsel for Ashen White refused to give the undertaking on the ground that the question called for an opinion which Mr. Boyd was not qualified to give. In response to follow-up questions on this issue, Ashen White’s counsel said that the basis of his statement that Mr. Boyd was not qualified (even given his 40 years experience in the industry) was that an expert opinion would be required and that Mr. Boyd’s lay opinion would be irrelevant. In addition, Mr. Butler refused to answer whether he agreed that Mr. Boyd was not qualified.

6In his affidavit, Mr. Boyd says:

3. Ashen White has been operating since 1988. I have extensive experience with various types of audio-visual equipment, and I am also familiar with the process and protocol for rental and cross-rental of audio-visual equipment.

4. From my experience with Ashen White and in the industry, I am familiar with various types of audio-visual equipment and their appropriate use.

5. I am also familiar with the process, protocol and industry practices for rental/cross-rental of audio-visual equipment.

6. Given my time in the industry, I am familiar with the lP rating classification system whereby codes are given to refer to ingress protection ratings which indicates the degree of protection an object has from intrusion. The rating consists of a two-digit number, the first of which classifies intrusion protection against solid objects, and the second as against liquids. Attached at Tab J is a document which explains lP ratings.

7Metalworks argues that as a result of the refusal to ask Mr. Boyd whether he agreed that if the lighting fixtures were wet it would not be a good idea to leave them in that state for any period of time, the evidence of his experience in paragraphs 3, 4 and 5, and the evidence of his knowledge of IP ratings in paragraph 34 should be struck out. I disagree, for the following reasons.

8First, at his discovery, Mr. Butler was asked about Mr. Boyd’s experience and gave evidence that Boyd had been in the business of supplying audio-visual equipment for use at events and festivals for 40 years.

9Second, nowhere in Mr. Boyd’s affidavit does he give an opinion on the issue of leaving the equipment wet for any period of time, nor does he profess to be qualified to do so. In fact, while he says that he is familiar with “various types of audio-visual equipment”, he does not profess to have any familiarity or experience with the Aura lights which form the subject matter of the claim.

10Third, the problem with the objection to paragraph 34 is that the technical meaning of IP ratings is not in issue. This evidence is supported by the document Mr. Boyd refers to and is essentially the same as the evidence on that point contained in the report of one of Metalworks’ experts, Paul Dexter.

11Fourth, the reason for the rules relating to the inadmissibility of evidence at trial where the information was refused on discovery is that it would be unfair to allow the offending party to spring the information on the opposing party at, or on the eve of, trial, if the result is that the opposing party has insufficient time to properly deal with the information. In this case, Metalworks has had the evidence since September 2018 when Mr. Boyd’s affidavit was served. Metalworks argues that the time to object to such evidence is at trial and that its delay in making the objection does not preclude it from doing so now. However, that argument misses the point. It is not the delay that precludes the objection being made at this time, but rather, the fact that Metalworks has not been taken by surprise. Metalworks’ counsel argues that because the information was provided in an affidavit rather than in a letter stating that the objection was being withdrawn, he was deprived of the opportunity to require Mr. Butler to reattend to answer further questions arising from the answers. I disagree. There was nothing preventing counsel from requesting further discovery arising from the information provided, and if a motion to compel further discovery became necessary, the court would be unlikely to refuse to make the order simply because the information had been provided in an affidavit for summary trial, rather than in a letter withdrawing the objections and providing the answers.

Paragraphs based on information and belief

12In paragraph 3 of his affidavit, Mr. Boyd says: “I have read the Affidavit of Cam Butler, sworn September 28, 2018, and verily believe it to be true.” The difficulty with this paragraph is that Ashen White does not intend to call Mr. Butler as a witness at trial. I agree with Metalworks that the paragraph should be struck out. A party cannot adopt by reference an affidavit of a person not called as a witness at trial.

13However, the motion is dismissed as it relates to paragraphs 17, 19, 20 and 21 of the affidavit. In paragraphs 17 and 19, Mr. Boyd says that he was advised by Mr. Butler of the contents of conversations which Mr. Butler said he had with Allan Black of Metalworks. In paragraphs 20 and 21, he says that he was advised by Mr. Butler of the contents of conversations which Mr. Butler had with Robert Spencer of Metalworks.

14The rules relating to the use of affidavit evidence based upon information and belief are based upon the hearsay rule and are subject to the same exceptions. In the present case, paragraphs 17, 19, 20 and 21 of Mr. Boyd’s affidavit are admissible because they are evidence of assertions made out of court by representatives of Metalworks who have sworn affidavits and who counsel intends to call as witnesses at trial.

15“Traditionally, out-of-court assertions by a party to the proceedings have been regarded as admissible at the instance of the opposite party as an exception to the hearsay rule”: Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada, 2018), at §6.412.

16In R. v. Evans, [1993] 3 S.C.R. 653, 1993 CanLII 86, at para. 24, Sopinka J. gave the following rationale for the exception:

The rationale for admitting admissions has a different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute whether the evidence is hearsay at all. The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements. As stated by Morgan, "[a] party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of oath" (Morgan, "Basic Problems of Evidence" (1963), pp. 265-66, quoted in McCormick on Evidence, supra, at p. 140). The rule is the same for both criminal and civil cases subject to the special rules governing confessions which apply in criminal cases.

17Applying the exception in this case is complicated by the fact that the impugned paragraphs contain double hearsay, i.e., it is not Mr. Butler reporting what the Metalworks’ representatives said, but rather, Mr. Boyd reporting what Mr. Butler said the Metalworks’ representatives said. As a result, the fact of the making of the statements is itself hearsay. However, as noted in Lederman, Bryant & Fuerst, at §6.414, “it is always open to [a] party to take the witness box and testify either that he or she never made that admission or to qualify it in some other way.” In this case, Messrs. Black and Spencer have had since September 2018 to file affidavit evidence denying having made the statements attributed to them. In any event, all the assertions they are said to have made are substantially confirmed by evidence contained in affidavits filed by Metalworks.

18Lastly, however, I agree with Metalworks that paragraph 22 of Mr. Boyd’s affidavit should be struck out. Mr. Boyd’s statement that Mr. Butler told him that he had not been informed of the water damage before speaking with Mr. Spencer on June 3, 2015 is hearsay on the issue of whether Mr. Butler had been told earlier, and is not based on an assertion made by Metalworks.

Disposition

19For the reasons given, paragraphs 3 and 22 of the affidavit of Kenneth Boyd sworn September 28, 2018 will be struck out, but the motion will otherwise be dismissed.

20I will deal with the costs of this motion as part of my disposition of the costs of the action, following trial.

S.T. Bale J.