COURT FILE NO.: CV-22-89534
DATE: 2024/02/22
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rothmar Holdings Inc. (Applicant)
AND
The City of Cornwall and the Chief Building Official of the Corporation of the City of Cornwall (Respondents)
BEFORE: Justice Sylvia Corthorn
COUNSEL: Peter J. Henein and Gillian Olsen, for the applicant
Roberto Ghignone and Ricksen Tam, for the respondents
HEARD: January 8, 2024
ENDORSEMENT
(Evidentiary Motion Preliminary to the Hearing of an Application)
Introduction
[1] In 2021 and 2022, Rothmar Holdings Inc. (“Rothmar”) applied to the respondent municipality (“the City”) for four building permits. Each of the four applications was denied. Following a pre-trial conference in December 2023, the respondent building official granted two of the four permits. When the application is heard, Rothmar will request an order that the two remaining permit denials be reversed and the two refused permits be issued.
[2] In support of the application, Rothmar relies on the expert opinion evidence of Nicole Lowey. Ms. Lowey is a Code Consultant with the Code and Life Safety Group at Morrison Hershfield. An affidavit from Ms. Lowey forms part of the application record. The exhibits to that affidavit include Ms. Lowey’s report on the respondents’ conduct in refusing to grant the building permits, her curriculum vitae, and a Form 53 acknowledgement of expert’s duty.
[3] The respondents rely on the expert opinion evidence of Gerald Moore. Mr. Moore is the President of RSM Building Consultants Inc. (“RSM”). Mr. Moore has over 25 years of experience, in both the private and public sectors, in the application of the Ontario Building Code, O. Reg. 332/12. The responding record includes an affidavit from Mr. Moore. The exhibits to that affidavit include a report authored by Mr. Moore and dated April 30, 2023 (“the Moore report”), his curriculum vitae, and a Form 53 acknowledgement of expert’s duty dated May 1, 2023.
[4] Both Ms. Lowey and Mr. Moore were cross-examined on their respective affidavits. The transcripts from those cross-examinations form part of the record before the court on the application. The transcript from the cross-examination of Mr. Moore is also before the court on this motion.
[5] In its notice of motion, Rothmar lists three forms of alternative relief related to what it describes as “the Moore Evidence” (i.e., the Moore affidavit, the Moore report, and the transcript from the cross-examination of Mr. Moore).
[6] First, Rothmar asks the court to (a) conclude that Mr. Moore is neither independent nor impartial, and (b) strike the Moore Evidence in its entirety. Second, if the court does not strike the Moore Evidence, Rothmar asks the court to exclude the Moore Evidence. Rothmar submits that the prejudicial effect of the Moore Evidence outweighs its probative value.
[7] As the third and final form of alternative relief, Rothmar asks the court for a declaration that “little to no weight should be assigned to the Moore Evidence because its prejudicial effect outweighs its probative value”. Rothmar acknowledges that it has not provided the court with any precedent for this form of relief to be granted on a preliminary evidentiary motion. In addition, Rothmar acknowledges that if the motion is dismissed, Rothmar will, on the return of the application, be entitled to request that the court give little to no weight to the Moore Evidence.
[8] As a result of the acknowledgements by Rothmar regarding the third form of alternative relief, the oral submissions on the motion focussed on the first and second forms of alternative relief – striking or, in the alternative, excluding the Moore Evidence.
[9] For the purpose of the motion, Rothmar does not take issue with Mr. Moore’s qualifications to provide expert opinion evidence regarding building permit applications, including the review of and responses to such applications.
[10] At the heart of the grounds upon which Rothmar relies are the changes, over time, in the relationships between (a) RSM and the City, and (b) RSM and Ms. Elliott (who was formerly employed as a building inspector with the City). Rothmar submits those changes are such that Mr. Moore is neither independent nor impartial.
[11] Set out below is a chronology of key events in the building permit application process and the changes in RSM’s relationships with Ms. Elliott and the City:
December 23, 2021 - Rothmar submits a building permit application for 26 First Street West.[^1]
January 21, 2022 - Mike Hodge, a building inspector with the City, provides Rothmar with a refusal letter for 26 First Street West.
April 14, 2022 - Rothmar submits a building permit application for 100 Pitt Street.
May 3, 2022 - Rothmar submits a building permit application for 155 Pitt Street.
May 19, 2022 - Rothmar submits a building permit application for 107 Pitt Street.
May 24, 2022 - Ms. Elliott provides Rothmar with a refusal letter for 100 Pitt Street.
June 10, 2022 - Mr. Hodge provides Rothmar with a refusal letter for 107 Pitt Street.
June 20, 2022 - Ms. Elliott provides Rothmar with a refusal letter for 155 Pitt Street.
August 2022 - RSM is retained by the respondents’ counsel to provide expert opinion evidence for the purpose of the application.
March 2023 - Ms. Elliott responds to a job posting and applies for a position with RSM.
April 11, 2023 - Ms. Elliott commences work with RSM. Mr. Moore is not involved in Ms. Elliott’s hiring; is aware she has been hired; and does not speak with Ms. Elliott about the report he is preparing for this proceeding.
April 30, 2023 - The date of the Moore report.
July 13, 2023 - Mr. Moore is cross-examined. As of this date, the City does not appear on the RSM website in a list of the municipalities with whom RSM works directly.
September 2023 - The City appears on the RSM website in a list of the municipalities with whom RSM works directly.
[12] In addition to the events described above, Rothmar relies on the broader relationships between RSM and Ms. Elliott, and RSM and the City, in the years prior to date of the Moore report. For example, between November 2022 and April 2023, Ms. Elliott regularly attended webinars, on Building Code issues, offered by RSM to municipalities across the province. As another example, Rothmar relies on training and workshops on Building Code compliance issues provided by RSM to the City.
[13] Rothmar acknowledges that it has a high bar to meet in order to succeed on this preliminary evidentiary motion. For the reasons which follow, I find that high bar has not been met. Rothmar’s motion is dismissed, without prejudice to Rothmar requesting, on the return of the application, that the Moore Evidence be given little or no weight.
Analysis
a) The Test for Admission of Expert Opinion Evidence
[14] In White Burgess Langille Inman v. Abbott and Haliburton, 2015 SCC 23, [2015] 2 S.C.R. 182, the Supreme Court of Canada sets out the test to be met for the admission of expert opinion evidence. There are two main components to the test.
[15] The first component includes four threshold requirements. For the proposed expert opinion evidence to be admissible, the proponent of the evidence must satisfy the following threshold requirements: “(1) relevance; (2) necessity in assisting the trier of fact; (3) absence of an exclusionary rule; and (4) a properly qualified expert” (see White Burgess, at para. 19).
[16] The second component requires the judge to balance “the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks”: White Burgess, at para. 24.
b) Independence and Impartiality
▪ As a Threshold Requirement
[17] Rothmar focuses on the fourth threshold requirement listed in para. 15, above. Rothmar submits that Mr. Moore is not “a properly qualified expert”, because he lacks independence and impartiality. I pause to note that, in White Burgess, the Supreme Court of Canada concludes that an expert’s lack of independence and impartiality must be considered when determining the admissibility of evidence and, if the evidence is admitted, when determining the weight to be given to the evidence: at para. 45.
[18] Mr. Moore executed a Form 53 acknowledgment of expert’s duty. In that document, Mr. Moore acknowledges his duty, in relation to the proceeding, to provide the following evidence and assistance:
• Evidence that is fair, objective and non-partisan;
• Opinion evidence that is related only to matters within his areas of expertise; and
• Additional assistance the court may reasonably require in determining matters in issue.
[19] Mr. Moore was not cross-examined on the contents of his Form 53 acknowledgement of expert’s duty.
[20] Mr. Moore also addresses his duty to the court, as an expert witness, in Section 1 of the Moore report. In that section of his report, Mr. Moore summarizes the nature of the opinions RSM was retained to provide and says that, in the preparation of the report, RSM “remained fair, objective, and unbiased and only provided our opinion within the confines of our area of expertise.”
[21] At para. 47 of White Burgess, the Supreme Court of Canada addresses the significance of an expert witness’ attestation or testimony regarding their duty to the court: “While I would not go so far as to hold that the expert’s independence and impartiality should be presumed absent challenge, my view is that absent such challenge, the expert’s attestation or testimony recognizing and accepting the duty will generally be sufficient to establish that this threshold is met.”
[22] Based on the unchallenged contents of Mr. Moore’s Form 53 and the contents of Section 1 of the Moore report, I find that Mr. Moore recognises and accepts his duty to the court in the role of an expert witness.
▪ RSM’s Relationships with the City and Ms. Elliott
[23] With the finding made in the preceding paragraph, Rothmar has the burden of establishing, on a balance of probabilities, “that there is a realistic concern that [Mr. Moore’s] evidence should not be received because [Mr. Moore] is unable and/or unwilling to comply with that duty”: White Burgess, at para. 48. To satisfy that burden, Rothmar asks the court to consider three aspects of RSM’s historical and continuing relationships with Ms. Elliott and the City.
[24] First, Rothmar asks the court to consider Ms. Elliott’s and Mr. Hodge’s access to the province-wide webinars presented by RSM. Ms. Elliott and Mr. Hodge attended the webinars approximately every two weeks. This historical aspect of RSM’s relationship with the City and its employees is not, however, Rothmar’s primary concern regarding Mr. Moore’s alleged lack of independence and impartiality.
[25] Second, and more significant to Rothmar, is RSM’s relationship with Ms. Elliott. That relationship begins with Ms. Elliott’s attendance at the webinars; includes her attendance, in 2019, at a course presented by RSM; and continues with her employment with RSM as of April 11, 2023 (i.e., prior to the date of the Moore report). As an RSM employee, Ms. Elliott performs the same type of work she performed when employed by the City – she reviews building permit applications, albeit for other municipalities across the province.
[26] Rothmar submits that Mr. Moore is neither independent nor impartial because, in the Moore report, he expresses opinions about the work done by an individual who, as of the date of the report, is an RSM employee.
[27] For each of the four building permit applications, Mr. Moore provides a chart summarizing the grounds for denying the application and whether, in his opinion, the grounds were justified. For the latter portion of the summary, Mr. Moore relies on “Yes” or “No” entries.
[28] For each of the two applications reviewed by Mr. Hodge, the chart includes at least one “No” entry – meaning that, in Mr. Moore’s opinion, the City was not justified in relying on certain factors when refusing the building permit application. The charts for each of the two applications reviewed by Ms. Elliott include only “Yes” entries – meaning that, in Mr. Moore’s opinion, the City was justified in relying on each of the listed factors when refusing the building permit application.
[29] Rothmar submits that it is not possible to know whether the difference in outcomes – between the reviews of Mr. Hodge’s work and of Ms. Elliott’s work – is a coincidence or is the result of a lack of independence and/or impartiality on Mr. Moore’s part. Rothmar submits that RSM has a reputational stake in the proceeding because Mr. Moore expresses opinions on the historical conduct of an individual who is now an RSM employee. As an example of that reputational stake, Rothmar asserts that Mr. Moore may have chosen to treat Ms. Elliott’s reviews entirely favourably so as to avoid having RSM’s existing and potential municipality clients question the quality of services RSM provides.
[30] There is no evidence, including from the cross-examination of Mr. Moore, to support a finding that Ms. Elliott’s status as an employee of RSM, as of April 30, 2023, was a factor in the conclusions reached and opinions expressed by Mr. Moore. On cross-examination, it was Mr. Moore’s evidence that RSM was retained in August 2022 to prepare a report for this proceeding. It was also Mr. Moore’s evidence that at no time prior to April 30, 2023, did he speak with Ms. Elliott about the report he was preparing.
[31] Rothmar’s submission on the subject of RSM’s reputational stakes is narrow in scope and fails to account for other reputational stakes for RSM arising from its involvement in this proceeding. For example, it will be up to the court to determine what weight, if any, is to be given to Mr. Moore’s evidence. The court may choose to prefer the evidence of one expert over the other. RSM has a reputational stake in those conclusions.
[32] The third and primary relational aspect upon which Rothmar relies is the current relationship between RSM and the City. From Rothmar’s perspective, this third ground serves to compound the first and second grounds discussed in the preceding paragraphs.
[33] It is undisputed that, when Mr. Moore was cross-examined in July 2023, RSM was not providing consulting or any other services directly to the City. As of the date of the cross-examination, the City was not one of RSM’s municipality clients.
[34] Rothmar asks the court to consider the potential for RSM to rely on the Moore report in developing a direct client relationship with the City. Rothmar submits that, by delivering a report favourable to the City’s position in the proceeding, RSM curried favour with the City. Mr. Moore was cross-examined on this subject. His evidence is that a report favourable to the City’s position in the proceeding would not give RSM any greater advantage with the City than RSM enjoys with any other municipality. That evidence is uncontradicted.
[35] The direct relationship which developed over time between RSM and the City does not render Mr. Moore’s evidence inadmissible. In White Burgess, the Supreme Court of Canada addresses the significance of a relationship between a party and the expert witness upon whose evidence the party relies. At para. 49, the Court says,
For example, it is the nature and extent of the interest or connection with the litigation or a party thereto which matters, not the mere fact of the interest or connection; the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible. In most cases, a mere employment relationship with the party calling the evidence will be insufficient to do so. On the other hand, a direct financial interest in the outcome of the litigation will be more of a concern.
[36] There is no evidence before the court to support a finding that RSM has a financial interest in the outcome of the proceeding. The relationship which developed over time between RSM and the City is one of service provider and client. That relationship is analogous to “a mere employment relationship” between RSM and the City. The nature and extent of that direct relationship is not sufficient to support a finding that Mr. Moore lacks independence and impartiality.
▪ Summary – Independence and Impartiality
[37] At para. 49 of White Burgess, the Supreme Court summarizes the threshold requirement of independence and impartiality:
This threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert’s evidence would be ruled inadmissible for failing to meet it … I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence.
[38] The circumstances in this matter do not fall within the category of “very clear cases”. The evidence does not establish that there is a realistic concern that Mr. Moore’s evidence should not be admitted because Mr. Moore is unable or unwilling to fulfill his duty as an expert witness in the proceeding.
[39] With the threshold requirement of independence and impartiality met, the court need not move on to the second component of the two-part White Burgess analysis.
The Application
[40] On the motion, Rothmar asks the court to consider not only the current relationship between RSM and the City, but the respondents’ conduct, in the fall of 2023. At that time, and through its counsel, Rothmar raised concerns about the existence of a direct relationship between RSM and the City. Rothmar submits that the respondents failed to respond in a meaningful way to the concerns raised. Rothmar also asks the court to consider the respondents’ obligations to amend or update Mr. Moore’s answers to questions posed on cross-examination regarding the relationship between RSM and the City.
[41] The respondents acknowledge that, as part of the court’s determination of the substantive issues on the application, the court will be required to determine whether it considers only the state of affairs as of the dates of the various building permit applications and initial refusals, or it also considers evidence of events that transpired subsequent to the dates on which the City refused to grant the building permits.
[42] As stated in para. 13, above, Rothmar’s motion is dismissed without prejudice to Rothmar requesting on the application that the Moore Evidence be given little or no weight.
[43] On the return of the application, the parties will be entitled to make submissions addressing the relationship between RSM and the City (and between RSM and Ms. Elliott) – to the extent that the relationship is relevant to the court’s determination of substantive and evidentiary issues.
Costs
[44] Costs of the motion will be determined as part of costs of the application.
[45] The parties are encouraged to attend on the return of the application with an agreement as to quantum of costs on the motion and for the application – on both the partial and substantial indemnity scales. If such an agreement is reached, then the court would only be required to determine the issues of entitlement to costs and the scale upon which costs are payable (if payable at all).
[46] If the parties are unable to reach an agreement on costs of the motion and/or the application, then, on the return of the application, the parties shall (a) file over the bench their respective costs outline, in hard copy only, and (b) provide the opposing party or parties a copy of that document. Upon completion of the hearing of the application, the parties shall electronically file their respective costs outlines. The parties shall, at the same time, upload their respective costs outlines to Caselines.
Justice S. Corthorn
Date: February 22, 2024
COURT FILE NO.: CV-22-89534
DATE: 2024/02/22
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Rothmar Holdings Inc. (Applicant)
AND
The City of Cornwall and the Chief Building Official of the Corporation of the City of Cornwall (Respondents)
BEFORE: Justice Sylvia Corthorn
COUNSEL: Peter J. Henein and Gillian Olsen, for the applicant
Roberto Ghignone and Ricksen Tam, for the respondents
HEARD: January 8, 2024
ENDORSEMENT
CORTHORN J.
Released: February 22, 2024
[^1]: All the subject properties are in City of Cornwall.