Court File and Parties

COURT FILE NO.: CV-12-461099 and CV-12-461099-00A1 DATE: 20220215 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

De Cerigo Properties Inc., Studio Pyramid Inc. and Milosh Pavlovicz Plaintiffs – and – CHRISTINE RAFFAN Defendant – and – DAVID CORAZZA, KAREN CARADONNA and ROBERT ROURKE Third Parties

Counsel: C. Mark Hogan, for the Plaintiffs Deborah Berlach and Nabil Mahmood, for the Defendant Leon J. Melconian, for the Third Party Karen Caradonna Christopher L. Hluchan, for the Third Party David Corazza

HEARD: February 9, 2022

Reasons for Decision

J.E. Ferguson J.

[1] This was a motion for a mistrial heard on February 9, 2022. The trial had started on January 10, 2022. This is an old action that dates back to 2012.

[2] On February 4, 2022, I dismissed the action as a result of my findings regarding the plaintiffs’ expert, Dr. Rosen a forensic accountant – that he had not provided an opinion as to the standard of care of a CGA. I was told that the defence did not intend to call an expert on the standard of care as a result of the opinions of Dr. Rosen. I did not allow counsels’ request for an adjournment or the right to file a supplementary report.

Expert Evidence

[3] In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, the court describes a two step process for admitting expert evidence. The first involves the four Mohan factors, and the second is a “discretionary gatekeeping step”:

[16] Since at least the mid-1990s, the court has responded to a number of concerns about the impact on the litigation process of expert evidence of dubious value. The jurisprudence has clarified and tightened the threshold requirements for admissibility, added new requirements in order to assure reliability, particularly of novel scientific evidence, and emphasized the important role that judges should play as “gatekeepers” to screen out proposed evidence whose value does not justify the risk of confusion, time and expense that may result from its admission.

[22] Abbey (ONCA) introduced helpful analytical clarity by dividing the inquiry into two steps. With minor adjustments, I would adopt that approach.

[23] At the first step, the proponent of the evidence must establish the threshold requirements of admissibility. These are the four Mohan factors (relevance, necessity, absence of an exclusionary rule and a properly qualified expert) and in addition, in the case of an opinion based on novel or contested science or science used for a novel purpose, the reliability of the underlying science for that purpose: J.-L.J., at paras. 33, 35-36 and 47; Trochym, at para. 27; Lederman, Bryant and Fuerst, at pp. 788-89 and 800-801. Relevance at this threshold stage refers to logical relevance: Abbey (ONCA), at para. 82; J.-L.J., at para. 47. Evidence that does not meet these threshold requirements should be excluded. Note that I would retain necessity as a threshold requirement: D.D., at para. 57; see D. M. Paciocco and L. Stuesser, The Law of Evidence (7th ed. 2015), at pp. 209-10; R. v. Boswell, 2011 ONCA 283, 85 C.R. (6th) 290, at para. 13; R. v. C. (M.), 2014 ONCA 611, 13 C.R. (7th) 396, at para. 72.

[24] At the second discretionary gatekeeping step, the judge balances the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks. The required balancing exercise has been described in various ways. In Mohan, Sopinka J. spoke of the “reliability versus effect factor” (p. 21), while in J.-L.J., Binnie J. spoke about “relevance, reliability and necessity” being “measured against the counterweights of consumption of time, prejudice and confusion”: para. 47. Doherty J.A. summed it up well in Abbey, stating that the “trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence”: para. 76.

[4] In Bruff-Murphy v. Gunawardena, 2017 ONCA 502, at paras. 37-42, the Court of Appeal emphasizes the role of the trial judge as gatekeeper, and that the expert’s evidence must satisfy both steps from White Burgess.

[5] This case in my view had no chance of success as the proposed expert, Dr. Rosen never sets out the expected standard of care of a CGA. I utilized my gatekeeper function and excluded his testimony.

[6] The plaintiffs brought their motion for a mistrial on the basis of a reasonable apprehension of bias. After hearing submissions on the mistrial, it is not granted.

[7] I agree with counsel for the defendant, that she had no obligation to call a defence. No weight is put on the plaintiffs’ submission that they could have established this issue through Ms. Raffan (who may never have been called).

[8] The action is dismissed. The mistrial is not granted.

[9] If the parties cannot agree on costs, I am prepared to receive brief submissions from the defendant and third parties by March 31, 2022 and from the plaintiffs by April 30, 2022. Any cost submissions may be emailed to my assistant at: lorie.waltenbury@ontario.ca.

J.E. Ferguson J.

Released: February 15, 2022