COURT FILE NO.: CV-15-527265
DATE: 2021 11 01
SUPERIOR COURT OF JUSTICE - ONTARIO
IN THE MATTER OF the Construction Act, RSO 1990, c C.30, as amended
RE: ONESPACE UNLIMITED INC., Plaintiff / Defendant by Counterclaim
- and -
PLUS DEVELOPMENT GROUP CORP., Defendant / Plaintiff by Counterclaim
BEFORE: Associate Justice Todd Robinson
COUNSEL: C. Simco and M. Marrie, for the defendant by counterclaim, Onespace Unlimited Inc. (moving party)
D. Rollo and D. Melamed, for the defendant/plaintiff by counterclaim, Plus Development Group Corp. (responding party)
F. Miceli, for the plaintiff, Onespace Unlimited Inc.
HEARD: In writing
REASONS FOR DECISION (Admissibility of Statements in Trial Affidavit Evidence)
[1] In advance of trial, Onespace Unlimited Inc. (“Onespace”) seeks to strike portions of the reply affidavit of Ali Mohtashami sworn April 6, 2021. Mr. Mohtashami is the principal witness of Plus Development Group Corp. (“Plus”). Rather than arguing Onespace’s motion on the first day of trial, the parties agree that the motion may be heard in writing based on Onespace’s motion record (which includes a chart outlining both Onespace’s and Plus’ positions), factum, and book of authorities. Plus does not intend to rely on any additional materials. I have accordingly addressed the motion in writing.
[2] I am granting Onespace’s motion, in part. As outlined below, I am striking most of the impugned statements, but not all. To avoid any confusion about which portions of the sworn affidavit have been struck, I am also directing that amendments be made to a copy of the sworn reply affidavit for use at trial.
General legal principles
[3] All of the challenged statements made by Ali Mohtashami are objected to as improper argument. Statements in paragraphs 14, 15, 20, 23, and 24 of the affidavit are also challenged as opinion evidence not tendered through a properly qualified expert. Statements in paragraphs 8, 11, 20, 23, 24, 25, and 31 are challenged as drawing improper conclusions and suggesting inferences that are for the court to determine.
[4] In the context of a motion, opinions, arguments, suggested inferences, and legal conclusions have no proper place in an affidavit, although are properly included in a factum and oral submissions made by counsel: Roumann Consulting, Inc. v. Aviva Insurance Company of Canada, 2020 ONSC 3387 at para. 44. Those restrictions are no different for affidavit evidence for a summary trial.
[5] Certain rules of evidence are relaxed by provisions of the Rules of Civil Procedure for affidavit evidence on a motion or application. That is not the case for affidavit evidence at trial. For example, some hearsay is permitted by Rules 39.01(4) and 39.04(5) in motion and application affidavits and by Rule 20.02(1) in affidavits for a summary judgment motion, with an available adverse inference. Trials are distinct. Evidence at trial must comply with the rules of evidence. Notably, if the rules of evidence do not permit a witness to make a particular statement during viva voce trial testimony, the same rules of evidence prevent a witness from making that statement in an affidavit tendered as evidence-in-chief.
[6] In Schindler Elevator Corporation v. Walsh Construction Company of Canada, 2020 ONSC 433 (Master), I reviewed principles applicable to affidavit evidence for trial. The principles applicable to Onespace’s specific challenges are as follows:
(a) It is inappropriate for a witness to provide evidence, whether opinion or otherwise, that constitutes argument in support of a party’s position on the issues that are to be decided by the court: Schindler, supra at para. 12(j).
(b) Fact witnesses cannot generally give opinion evidence, which may only be tendered through the evidence of a properly qualified expert: Schindler, supra at para. 12(c).
(c) Not all expressions of opinion by a non-expert witness are inadmissible. Conclusions that people with ordinary experience are able to make may be admissible. Opinion on matters requiring no special knowledge, where the witness’ inference is virtually inextricable from the facts on which it is based, may also be admissible as a way of expressing the result of the witness’ observations: Schindler, supra at para. 12(c).
(d) Where conclusions and inferences are put forward as argument, they are improper. Speculative interpretation by a lay witness is also typically improper. However, so long as it does not clearly constitute improper argument, speculative interpretation on a relevant matter need not be formalistically struck unless allowing it may be harmful or prejudicial. Concerns may otherwise be readily addressed by the weight to be given to such evidence: Schindler, supra at para. 12(i).
[7] Plus has, in many instances, responded to Onespace’s challenges with proposed amendments to Mr. Mohtashami’s reply affidavit. In Schindler, at para. 14, I held that it is improper for the court to order amendment of trial affidavit evidence, since the court cannot change a witness’ evidence. My view remains unchanged.
[8] Accordingly, I have not considered any of the proposed amendments to the impugned statements. Inadmissible statements may be struck from a sentence or paragraph, without striking the entirety of that sentence or paragraph, if it does not change the substance of the remaining evidence. However, where an inadmissible statement is not fairly struck without changing the nature or substance of the remaining sentence or paragraph, then the entire sentence or paragraph must be struck.
Impugned statements
[9] The challenged statements in Mr. Mohtashami’s affidavits are identified in a schedule to Onespace’s notice of motion, with the relevant paragraph reproduced in full (with impugned statements highlighted) in the chart of objections.
[10] I agree with Onespace that the impugned statements in paragraphs 9, 12, 25, 28, 30, 31, and 32 constitute improper argument in support of Plus’ position and must be struck. Plus’ proposed amendments (where amendments have been proposed) seek to extract and preserve the factual portions of the statements, which in my view only serves to underscore that the statements as sworn constitute improper argument. Mr. Mohtashami’s statements are all in the nature of submissions on the evidence.
[11] I have dealt with the remaining impugned statements individually.
[12] In paragraph 5, there is no question that the portion of the impugned sentence inviting the court to draw a negative inference is improper legal argument. In my view, commentary on the lack of evidence from Mauro Franzoni (an architect involved in the project) is also improper argument. However, the first clause of the impugned sentence stating, “Mauro Franzoni was the lead architect” is factual information that is not affected by striking the remainder of the sentence. I am thereby striking the impugned sentence, except for that statement.
[13] Both of the last two sentences in paragraph 8 are challenged. I agree that the first challenged sentence, which comments on what it “appears” Onespace is attempting to do with the evidence Rod Rowbotham (Onespace’s lead witness) is improper argument. The second challenged sentence is a mix of argument and contract interpretation, which I agree is an improper statement of a legal conclusion. Although Plus proposes that the statements be amended to preserve factual evidence about the contract, in my view, that evidence cannot be extracted without changing the substance of Ali Mohtashami’s statements. Both sentences are accordingly struck.
[14] In paragraph 11, Onespace challenges the last sentence as constituting both improper argument and stating a legal conclusion on contract interpretation. I agree with Onespace that, as drafted, Ali Mohtashami’s statement is argument on the relevance of evidence and puts forward a legal conclusion on what was required by the contract. That is a disputed issue squarely before the court at trial, namely the extent of Onespace’s contractual obligations. The statements are accordingly struck.
[15] Paragraph 14 provides Ali Mohtashami’s comments on an email from Rod Rowbotham to Mauro Franzoni introduced in the prior paragraph. Both sentences of paragraph 14 are challenged. I am striking only the second sentence.
[16] In the first sentence, Ali Mohtashami states, “It appears that Franzoni, who was the lead architect, was stating that a project architect and tech is required for coordination, at least in this internal email.” I do not view the statement as improper argument or opinion. The referenced email includes a statement by Mr. Franzoni that, “A project arch and tech is required for regular project work and co-ord per estimate sheet.” Mr. Mohtashami appears to be relaying precisely what the email says, but since he did not author the email, rightly cannot state more than what “it appears” Mr. Franzoni was saying. Mr. Mohtashami was not challenged on his competence as a witness to give evidence about an email that he does not appear to have received.
[17] The last sentence of the paragraph, though, is Mr. Mohtashami’s opinion and speculation on what Mr. Franzoni and Mr. Rowbotham knew about Onespace’s contractual obligations. It is improper evidence.
[18] Per Onespace’s chart of objections, the last five sentences in paragraph 15 are challenged (although Schedule “A” to the notice of motion indicates only the last four sentences). Plus consents to striking two of the sentences. The remainder are Ali Mohtashami’s commentary on what Onespace was hired to do, what Onespace ought to have done, and what is “prudent of any professional architect.” In addition to the two sentences that Plus consents to being struck, I am only striking the last two sentences of the paragraph.
[19] The first impugned sentence is an expression of Ali Mohtashami’s view of what was required by the contract. However, in context, Mr. Mohtashami’s understanding of the contract is his explanation for disagreeing with Rod Rowbotham’s statements, as set out in the prior sentence. The sentence need not be struck.
[20] The remaining two challenged sentences are Mr. Mohtashami’s commentary on what Onespace ought to have done and what is prudent for a professional architect. In my view, they are unqualified opinions on professional standards. Such opinions are not properly tendered by Mr. Mohtashami. They are opinions that would properly be tendered through the evidence of a qualified expert. Those two sentences are accordingly struck.
[21] For paragraph 16, Onespace submits that the entirety of the paragraph constitutes argument. Plus submits that it is not argument, but rather is interpretation of Onespace’s evidence. I disagree. In the context of this paragraph, there is no real distinction between argument and evidentiary interpretation. Mr. Mohtashami does not tender any factual evidence. He is advancing an argument on what Onespace is attempting to do with its evidence and summarizing Rod Rowbotham’s evidence. It is improper argument and should be struck.
[22] The impugned statements in paragraph 17 flow from those in paragraph 16, which I have struck. While I agree with Plus that the statements are Ali Mohtashami’s reply to Rod Rowbotham’s responding affidavit, that reply takes the form of improper argument. The last sentence of paragraph 17, which is not challenged, appears to provide the factual evidence underpinning the argument in the prior sentences. I accordingly strike the first three sentences in the paragraph.
[23] In paragraph 18, I agree with Plus that the impugned statement is not argument. Emotion or incredulity does not necessarily equate to argument. The statement does, as argued, appear to relate to Ali Mohtashami’s intentions when Plus entered into the contract.
[24] In the last part of paragraph 20, Ali Mohtashami expresses his view that changes on the underlying project were required because Onespace’s failed to coordinate on the project. Onespace challenges the statements as improper argument, opinion, and legal conclusions. Mr. Mohtashami is indeed making conclusory statements about his views and interpretation of what transpired on the project. However, they are inextricably tied to his overall observations and impressions of the project. In that context, I see no harm or prejudice to Onespace from the statements. Onespace’s concerns are readily addressed by submissions on the weight to be given to them. They need not be struck.
[25] For paragraph 21, Plus agrees to strike Ali Mohtashami’s lead-in comment, “It is interesting”. The remainder of the impugned statement is commentary about Onespace selectively choosing not to include evidence that a referenced additional service form was not signed or authorized. Plus argues it is factual. I disagree. It is argument about Onespace’s intention behind an alleged omission in evidence. While there appears to be some factual evidence that the service form was not signed or authorized, that portion of the statement cannot be fairly severed from the improper argument without changing the nature and substance of Mr. Mohtashami’s evidence. I accordingly strike the entirety of the statement.
[26] For paragraph 23, Onespace challenges statements as constituting improper argument, improper opinion, and improper expression of a legal conclusion on contract interpretation. Plus submits the statements are in the nature of reply. Although some of the language is argumentative (such as “has no foundation”), the statements are an expression of frustration and incredulity made in response to statements by Rod Rowbotham in his affidavit about Ali Mohtashami’s involvement on the project. They are not, at their core, improper argument, opinion, or expressions of legal conclusions. The weight to be given to these statements may be argued at trial.
[27] In paragraph 24, I agree with Onespace that the first two impugned sentences are improper argument. They deal with Onespace’s failure to issue a third party claim against Jain & Associates Limited (which performed mechanical and electrical engineering on the project) or call direct evidence from Jain & Associates Limited. The third impugned sentence puts forward the opinion of Plus’ expert on delay as a fact. It is an improper statement of legal conclusion. All three sentences are accordingly struck.
[28] In paragraph 27, Onespace challenges a portion of the paragraph questioning the evidence of Chris Payne (another of Onespace’s witnesses) on the basis that “he was not involved in the negotiation of the contract and he was only a junior architect working on the file.” Onespace submits the impugned portion of the paragraph is improper argument for two purposes: to advance Plus’ position and to dispute sufficiency of Onespace’s evidence. Plus has agreed to strike the first part of the impugned sentence, and proposes to change “he” to “Payne”, leaving the portions about Mr. Payne’s lack of involvement in contract negotiations and “junior architect” status.
[29] Striking the lead-in portion does not change the factual substance of the remainder. I see nothing objectionable about Ali Mohtashami confirming that Mr. Payne was not involved in contract negotiations and his understanding of Mr. Payne’s role on the project. Those portions accordingly need not be struck, but I cannot order that “Payne” be substituted. The context of “he” is nevertheless clear.
[30] For paragraph 35, Plus consents to striking the impugned last sentence.
[31] In paragraph 36, I agree with Plus that the impugned sentence about what various emails “demonstrate” should not be struck as argument. Ali Mohtashami is providing his opinion on what is shown in emails he introduces and attaches to his affidavit. However, it is an expression of his observation on the relevance of those emails, and is tied to why the emails are being introduced. Introducing the emails is not challenged. In my view, Mr. Mohtashami’s views on what is demonstrated by the emails are more properly challenged in the weight his views should be given. It is open to Onespace to argue a different interpretation.
[32] I do question whether Mr. Mohtashami is a competent witness to give evidence on all of the emails, which appear to be taken from Onespace’s productions in this litigation. It seems that only some of them were sent by or to Mr. Mohtashami. However, his statements are not challenged on that basis, nor is his competency to introduce the emails into evidence.
Order
[33] I accordingly order as follows:
(a) The following portions of the affidavit of Ali Mohtashami sworn April 6, 2021 are hereby struck:
(i) the balance of the third sentence of paragraph 5 following, “Mauro Franzoni was the lead architect”;
(ii) the last two sentences of paragraph 8;
(iii) the second sentence of paragraph 9;
(iv) the last sentence of paragraph 11;
(v) the last sentence of paragraph 12;
(vi) the last sentence of paragraph 14;
(vii) the last four sentences of paragraph 15;
(viii) paragraph 16 in its entirety;
(ix) the first three sentences of paragraph 17;
(x) the phrase “it is interesting that” in the second sentence of paragraph 21 and the last sentence of paragraph 21;
(xi) the last three sentences of paragraph 24;
(xii) paragraph 25 in its entirety;
(xiii) the beginning of the second sentence in paragraph 27 reading “I am not sure where he is getting this information as”;
(xiv) paragraph 28 in its entirety;
(xv) the last sentence of paragraph 30;
(xvi) the second sentence and the last three sentences of paragraph 31;
(xvii) paragraph 32 in its entirety; and
(xviii) the last sentence of paragraph 35.
(b) Plus shall prepare an amended version of Ali Mohtashami’s sworn reply affidavit that retains, but strikes through, the statements that I have struck. Striking shall be reviewed and verified by Onespace, after which Plus shall update its affidavit brief, if any, with the amended version prior to any such affidavit brief being marked as an exhibit. For greater certainty, Ali Mohtashami shall not re-swear his reply affidavit.
(c) Costs of this motion are reserved to be determined with costs of the action.
[34] If necessary, when Ali Mohtashami is called for his viva vice testimony, Plus may seek leave for additional examination-in-chief to address any admissible factual evidence in sentences or paragraphs that have been struck.
ASSOCIATE JUSTICE TODD ROBINSON
DATE: November 1, 2021