Court File and Parties

COURT FILE NO.: CV-22-89899 DATE: 2024/04/23 SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN: Cheryl Simmermon, Applicant/Responding Party in Motion - and - Ramdane Djoudad and Soraya Shanez Zerdoumi, Respondents/Moving Parties in Motion

BEFORE: Justice A. Doyle

COUNSEL: Jessica Nguyen, Counsel for the Applicant/Responding Party in Motion Danesh Rana, Counsel for the Respondents/Moving Parties in Motion

HEARD: March 28, 2024

Endorsement

Overview

[1] This ruling relates to the admissibility of expert reports filed by the applicant in support of the application dealing with a right of way.

[2] At the heart of this motion is whether one of the applicant’s experts has been tainted as he reviewed offers to settle and settlement communications, and whether the other expert’s evidence is relevant and has met the requirements under r. 53.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

Background

Introduction

[3] The applicant lives at 79 Park Avenue which shares a wall with 77 Park Avenue where the respondents (a married couple) reside.

[4] There are no driveways in the front of this duplex and both parties must park their vehicles in their respective backyards.

[5] To access her backyard, the applicant must travel through the backyard of 77 Park Avenue.

[6] The main application deals with the applicant’s right of way over the respondents’ backyard. The applicant is seeking an order requiring the respondents to make structural changes to their backyard to allow the applicant to safely manoeuvre her vehicle to her parking spot in her backyard at 79 Park Avenue.

[7] The application is scheduled to be heard on September 10, 2024.

[8] In support of the application, the applicant filed two expert reports from Jerrold Corush and an opinion letter from Janny Mills, a real estate agent.

Corush reports

[9] Mr. Corush authored a report dated September 14, 2022 (“Corush report”). He was engaged by the applicant to provide expert opinion and a technical assessment concerning the right of way. He assessed the conditions and access design options and was asked to recommend a solution that would allow both parties space to park their vehicles and allow the applicant’s vehicle to come and go unobstructed all year round.

[10] The applicant has refused to produce a copy of the instruction letter to Mr. Corush.

[11] In his background, Mr. Corush sets out the plans and issues. His objective was to provide practical and unobstructed access, allow both neighbours to park their vehicles and propose a solution for current and long-term parking access.

[12] He provided assumptions regarding the right of way, vehicle access, and obstructions on the travel path.

[13] He found that the status quo does not allow for unobstructed vehicular ingress and egress to 79 Park Avenue.

[14] He then refers to a “legal proposal” called Solution 1 which removes all structures on the right of way. This proposal mirrors one contained in the applicant’s original demand letter dated September 20, 2021.

[15] He then discusses the “legal counterproposal” which was the respondents’ proposal dated October 15, 2021 and he opines that it does not meet the vehicle access requirements.

[16] He proposes CSW Design Solution 2 (which is his company, CSW Landscape Architects Ltd.) where a designated parking area for 77 Park Avenue would be demarcated on site. Also, any moveable objects must be outside the travel path of the vehicle. The travel path was determined by a software called AutoTURN which provides a minimum area requirement for a vehicle subject to winter climate conditions. The respondents’ vehicle would not be close to their home but rather in the corner of their backyard. He recommended the removal of the spruce, a maple tree, plant beds and the fence segments.

[17] The Corush report was accompanied by his CV and an acknowledgement of expert’s duty pursuant to r. 53.03.

[18] His affidavit dated July 4, 2023 confirms that the respondents’ proposal does not provide sufficient clearance as there was insufficient space for the travel path of the applicant’s vehicle and it did not allow the vehicle to travel without crossing into the respondents’ property.

[19] He was told that the respondents rejected the applicant’s proposal and his proposal in the Corush report.

[20] He was told of the respondents’ experts’ reports about the Norway Maple tree:

• ASE Expert Report by Sadegh Khosravi dated June 9, 2023; and
• IFS Expert Report by Andrew Boyd dated June 12, 2023.

[21] He was asked by the applicant to provide another solution that would not require the removal of the Norway Maple tree. He proposed a further recommendation, Solution 3, which would entail the removal of plant bed A, the spruce tree and fence segments. This would allow ingress and egress without crossing the respondents’ property and would accommodate a standard passenger car.

[22] He states that the Norway Maple tree is located on Part 6, in the right of way at the rear of the respondents’ property at 77 Park Avenue. It has girdling roots and dropped branches. The root system is fibrous and shallow and has potential to exhibit exposed surface roots which can destroy pavement.

[23] The problem is that the respondents and future owners would not be able to park in the right of way. If the Norway Maple tree continues to grow and expand it will create issues.

[24] Mr. Corush was examined under oath on July 19, 2023.

[25] In his response to undertakings dated August 29, 2023, received by the respondents on October 26, 2023, Mr. Corush responded as follows:

• U/T #6: To find out who initially proposed “Solution One”? Answer: It was his understanding that it was the solution proposed by the applicant’s counsel in a letter dated September 20, 2021 to the respondents and used the vehicle information provided by the applicant.
• U/T #7 To provide copies of which proposals were provided to the expert. Answer: He received the respondents’ proposal of October 2021 and commented that there was not enough space for the applicant to manoeuvre without risk of damaging her own vehicle or trees, garden bed, or right of way fence.

[26] In his response to undertaking #7, he also admitted to reviewing the following:

• Letter from applicant’s counsel dated September 20, 2021 which is the initial demand letter which included the applicant’s preferred solution. This is a five-page letter setting out the issues of the applicant regarding the right of way. She proposes 5 solutions which include removal of fencing, two trees and garden bed, preventing the respondents from parking in Part 6 (the right of way) which could block the applicant from driving through and an agreement not to leave objects that would interfere with her ability to park her car. She offered to pay for the fence post installation to align with the reference plan.
• Email dated October 15, 2021 from Don Burke, respondents’ previous counsel, in which he states that the respondents disagree with the applicant. The respondents are prepared to provide concessions and agree that they would remove a tree and garden area. He also sets out his position that the applicant has been able to navigate her vehicle and that there is no substantial obstruction of the right of way. In the last paragraph Mr. Burke offers to meet “further to reach a satisfactory solution, however we do not believe that it is open to your client to restrict use and enjoyment of Part 6 by our client particularly where that use does not substantially and practically interfere with the use of the right of way, as reasonably required.”
• Letter from applicant's counsel dated April 21, 2022 marked “without prejudice”. She defines the items on the reference plan and comments that the respondents’ proposal does not provide sufficient clearance for both neighbours to park their respective vehicles. She provides two options and a final offer for resolution. Finally, the letter addresses the issue of costs if the offer is accepted within a reasonable time and provides next available dates for the hearing.
• Email from respondents’ counsel including a r. 49 offer to settle dated November 7, 2022 which sets out two options for the applicant’s consideration.
• Letter from applicant’s counsel dated December 29, 2022 marked “without prejudice” acknowledging the offer to settle of November 7, 2022, and reiterating that the objective is to provide a functional solution in all seasons. It comments on the respondents’ offer to park exclusively on top of the west garden bed and how impractical that will be as it could block access to the respondents’ deck and affect their ability to exit their vehicle. The applicant’s counsel comments on the maple tree and its issues. Her letter confirms that their expert has reviewed the offer to settle of November 7, 2022 and provides his comments. The letter ends with an offer to settle asking them to reconsider the proposal set out in the letter dated April 21, 2022. It is accompanied by a letter and a formal offer to settle dated December 29, 2022.
• Email from respondents’ counsel dated January 20, 2023 indicating a rejection of their offer to settle and that the removal of the maple tree is “a non-starter for us”. Counsel for the respondents provides clarification regarding option #2 they had proposed. They modify option #1 and are prepared to move the steps from the deck to the right to allow the car to park “further back along the shared fence”.

[27] Regarding the remaining undertaking:

• U/T #9: To find out who initially proposed “Solution Three”? Answer: The applicant had contacted him with the Norway Maple tree report in the second ASE expert report. He was asked to develop a drawing having the tree remain and no car parked at 77 Park Avenue to see if it is a viable solution. This solution was not considered in his first proposal (Solution 2) as it provided for a place to park a car at 77 Park Avenue.

[28] One of the proposed solutions was from the applicant.

[29] At cross-examination, he admitted that the second report (affidavit) was authored by the applicant’s counsel but he reviewed and agreed with it before signing the same.

Mills report

[30] Janny Mills’s report is a letter dated September 12, 2022 on Royal LePage Performance Realty letterhead. She sets out fees for the letter. She estimates that the value of the home with parking in 2021-2022 was $920,333 and without parking was $843,333.

[31] She also states that she has seen the purchase of a single parking spot in a condominium parking lot at the range of $30,000 to $50,000.

[32] If the property were to be sold today (September 12, 2022) it would be listed from $915,000 to $925,000 but the issue of the right of way may be an issue for the prospective buyer.

[33] She certifies that she is a registered real estate sales representative under the applicable legislation and confirms that:

• She has no interest in the property nor does she plan to have an interest in the ownership of the property;
• This letter is not intended to interfere with existing agency relationships; and
• She and two other agents are not required to attend in court or give testimony by reason of this opinion of value unless prior arrangements have been made.

[34] Ms. Mills failed to provide an expert’s acknowledgment required under r. 53 and refused to make herself available for cross-examination.

Respondents’ Position

[35] The respondents move for the following relief:

• An order striking the applicant’s expert report and affidavit of Jerrold Corush and removal of them from the application record;
• An order striking the report of Janny Mills and removal of it from the application record;
• An order striking paras. 74, 76, 79, 80, and 81 of the applicant’s affidavit dated November 15, 2022; and
• An order striking paras. 83 and 86 of the applicant’s affidavit dated May 31, 2023 as the paragraphs refer to the experts’ reports.

[36] The respondents argue that Mr. Corush's report refers to r. 49 offers and he has placed himself as an advocate for the applicant. He admits in his undertakings that he had received and reviewed the exchanges of communications with settlement proposals.

[37] The respondents argue that he is not fair, objective and non-partisan and therefore this offends r. 4.1.01(1).

[38] As stated in Parliament et al. v. Conley and Park, 2019 ONSC 3995, 45 C.P.C. (8th) 392, at para. 16:

[16] The burden is on the party opposing the admission of the evidence to show that there is a realistic concern that the expert’s evidence should not be received because the expert is unable and/or unwilling to comply with that duty: White Burgess, at para. 48. Therefore, the party opposing the expert must show a realistic concern that the expert, despite having signed Form 53, is not impartial. Once a realistic concern is shown, the party seeking to have the expert admitted has the burden to establish on a balance of probabilities that the expert should nonetheless be allowed to give evidence: White Burgess, at para 48; R. v. Abbey, 2017 ONCA 640, 350 C.C.C. (3d) 102.

[39] Ms. Janny Mills has not complied with r. 53 and refuses to make herself available for cross-examination.

Applicant’s Position

[40] The applicant argues that Mr. Corush is merely opining on the various proposals that were filed with the court in the application.

[41] Regarding Mr. Corush’s evidence, the applicant submits that the respondents have failed to satisfy the onus to prove that his evidence is not fair, objective and non-partisan pursuant to r. 4.1.01(1).

[42] The respondents must satisfy the court that correspondence marked “without prejudice” was intended to be confidential and there is no authority that states that this expert evidence should be struck because the expert saw “without prejudice” correspondence.

[43] The first Corush report predates the respondents’ r. 49 offer to settle and hence could not have influenced Mr. Corush.

[44] Mr. Burke’s email predates the application and was not marked “without prejudice”.

[45] The respondents’ own design was assessed by their own expert.

[46] Mr. Corush reviewed and approved the contents of his affidavit before swearing the same.

[47] The respondents are not entitled to instruction letters to the expert as they are protected by litigation privilege unless they establish a factual foundation to support a reasonable suspicion that he was improperly influenced or instructed.

[48] Ms. Mills is a non-party participant expert and can provide an opinion without complying with r. 53.03.

[49] Her letter was not prepared for litigation and the application judge should determine its relevance and weigh it appropriately unless the respondents can establish prejudice.

[50] Ms. Mills did not make herself available for cross-examination as her own lawyer advised her not to.

Legal Framework

[51] Rule 53.03 sets out the requirements of an expert report. Amongst other things, r. 53.03(2.1) requires the report to contain the following information:

6. The expert’s reasons for his or her opinion, including, i. a description of the factual assumptions on which the opinion is based, ii. a description of any research conducted by the expert that led him or her to form the opinion, and iii. a list of every document, if any, relied on by the expert in forming the opinion.
7. An acknowledgement of expert’s duty (Form 53) signed by the expert.

[52] As noted by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 19, the legal test for admissibility of expert evidence has two components. This court summarized those components as follows in Conley and Park, at paras. 10-11:

[10] In the first stage, as articulated by the Supreme Court in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, the proponent of the evidence must persuade the trial judge that the proposed expert opinion is: i. relevant; ii. necessary; iii. not barred by any other exclusionary rule; and iv. given by a properly qualified expert. [11] In the second stage, the trial judge must engage in a gatekeeping function in which the trial judge balances the potential risks and benefits of admitting the evidence to determine whether the potential benefits justify the risks: White Burgess at para. 24.

[53] The Court of Appeal for Ontario in Bruff-Murphy v. Gunawardena, 2017 ONCA 502, 138 O.R. (3d) 584, leave to appeal refused, [2017] S.C.C.A. No. 343, emphasized the appropriate role of experts. Experts should not become advocates for the party by whom they are retained. To be of assistance to the trier of fact, an expert must remain objective and their function is to provide the trier of fact with expert opinion evidence that is fair, objective, and non-partisan. The expert must be willing and able to provide evidence that is impartial, independent and unbiased. Where the expert crosses the boundary of acceptable conduct and descends into the fray as a partisan advocate, the trial judge is required to fulfil her ongoing gatekeeper function and exclude in whole or in part the expert’s unacceptable testimony.

Analysis

Timing

[54] An issue of the timing of this motion was raised as the applicant believed that the issues should be dealt with by the application judge.

[55] In my view, this is one of the rare cases where it was necessary to bring a motion in advance to ensure that the application judge has only admissible evidence before them to determine the issues.

[56] Harrop v. Harrop, 2010 ONCA 390, 85 C.P.C. (6th) 1, dealt with the issue as to whether a motion judge can decide on the admissibility of proposed expert evidence. The court held that only in the rarest of cases should this be decided by the motion judge citing the following reasons:

a. the possibility of a multiplicity of proceedings; b. the need for a full context in which the decision can be made; c. the risk of the preliminary step being taken for purely tactical reasons; and d. the risk of creating different appeal rights depending on whether the decision is made by a motion judge as an interlocutory order or by the trial judge.

[57] However, see the decision of Beaudoin J. in Awada v. Glaeser, 2017 ONSC 1094, at para. 21: “Automatically deferring such issues to the trial judge can also result in a lack of fairness to the parties and prejudice to the administration of justice.”

[58] He was dealing with an upcoming jury trial and, at para. 22, stated: “When motions are postponed to the outset of trial, valuable trial time is lost. The loss of trial time undermines the public perception of our system of justice, particularly when a jury has been convened. Last minute motions can also result in the adjournment of trials.”

[59] Here, the matter is not a trial. It is an application where the court will have reviewed the documents in advance of the hearing and by doing so read the reports of Mr. Corush who refers to offers to settle. Certainly, there are different appeal rights which flow and that is a consideration. But there is prejudice to the respondents if an expert report that offends litigation privilege and involves the expert entering into the litigation strategies of the parties is put before the application judge.

[60] This case can be distinguished from Forbes v. Drouin, 2011 ONSC 6006, 38 C.P.C. (7th) 150. The defendant brought a motion for a ruling in advance of trial with respect to an admissibility issue regarding a defence medical report. Justice Ratushny, after quoting from Harrop, stated that it would be difficult for a motion judge to weigh the prejudicial and probative value of the proposed expert evidence as it did not have the full context that the trial judge would have before him/her.

[61] Justice Ratushny was dealing with a trial where the context would have to be considered as a whole and the cost-benefit analysis must be weighed in light of all the evidence.

[62] In my view this is one of the rarest of cases where the expert report should be excluded on a motion before the hearing of the application. The prejudice to the respondents by exposing their offers to settle in the reports is high.

[63] As will be described below, Mr. Corush was aware of the parties’ respective offers and settlement proposals. In my view, the exposure to settlement communication causes issues with respect to his ability to remain impartial.

[64] In Alfano v. Piersanti, 2012 ONCA 297, 291 O.A.C. 62, at para. 108, leave to appeal refused, [2012] S.C.C.A. No. 309, the court stated that an expert opinion “should not be influenced as to form or content by the exigencies of the litigation or by pressure from the client” and “[a]n expert’s report or evidence should not be a platform from which to argue the client’s case.”

[65] At para. 111, the court stated that “the court retains a residual discretion to exclude the evidence of a proposed expert witness when the court is satisfied that the evidence is so tainted by bias or partiality as to render it of minimal or no assistance.”

Settlement communications

[66] In his undertakings and at examination, Mr. Corush admitted to reviewing settlement correspondence.

[67] I note that the applicant’s first demand letter of September 2021 and the respondents’ response from Mr. Burke in October 2021 were not marked “without prejudice” and predated the application.

[68] First, the phrase “without prejudice” is not determinative if the communication is confidential due to settlement privilege.

[69] The criteria for settlement privilege are set out in Renzone v. Onyx Homes Inc., 2020 ONSC 7722, at para. 15:

[15] It is settled law that referring to settlement offers or discussions, which are thus subject to “settlement privilege”, may well be considered scandalous, frivolous or vexatious, leading to that part of the pleading being struck given that such communications are inadmissible. See, in that regard, 2030945 Ontario Ltd v. Markham Village Shoppes Ltd 2013 ONSC 1020 at para. 8.

[70] Here, in my view there was a dispute and litigation was a possibility.

[71] The communications were made with either the express or the implied intention that such would not be disclosed to the court if settlement discussions failed.

[72] The purpose of the communications was to try to settle the dispute.

[73] Regarding Mr. Burke’s email, even though it is not marked “without prejudice”, it is clearly an attempt to resolve the matter. He responds to the applicant’s demand letter containing her proposal, provides his own proposal and ends the email with the sentiment that his clients would like to work out an amicable solution.

[74] It is an attempt to resolve the matter and it does not matter that it was sent before the litigation commenced.

[75] As stated at para. 2 of Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37, [2013] 2 S.C.R. 623, “[t]he purpose of settlement privilege is to promote settlement. The privilege wraps a protective veil around the efforts parties make to settle their disputes by ensuring that communications made in the course of these negotiations are inadmissible.”

[76] At para. 16, Abella J. continues expanding on this principle:

[16] Middelkamp v. Fraser Valley Real Estate Board (1992), 1992 4039 (BC CA), 71 B.C.L.R. (2d) 276 (C.A.), subsequently endorsed the view that settlement privilege covers any settlement negotiations. The plaintiff James Middelkamp launched a civil suit against Fraser Valley Real Estate Board claiming that it had engaged in practices that were contrary to the Competition Act, R.S.C. 1985, c. C-34, and caused him to suffer damages. He also complained about the Board’s conduct to the Director of Investigation and Research under different provisions of the Act, resulting in an investigation by the Director and criminal charges against the Board. The Board negotiated a settlement with the Department of Justice, leading to the criminal charges being resolved. Middelkamp sought disclosure of any communications made during the course of negotiations between the Board and the Department of Justice. McEachern C.J.B.C. refused to order disclosure of the communications on the basis of settlement privilege, explaining:

. . . the public interest in the settlement of disputes generally requires “without prejudice” documents or communications created for, or communicated in the course of, settlement negotiations to be privileged. I would classify this as a “ʻblanketʼ, prima facie, common law, or ‘class’” privilege because it arises from settlement negotiations and protects the class of communications exchanged in the course of that worthwhile endeavour.

In my judgment this privilege protects documents and communications created for such purposes both from production to other parties to the negotiations and to strangers, and extends as well to admissibility, and whether or not a settlement is reached. This is because, as I have said, a party communicating a proposal related to settlement, or responding to one, usually has no control over what the other side may do with such documents. Without such protection, the public interest in encouraging settlements will not be served. [Emphasis added in Sable.]

[77] In Irving Paper Ltd. v. Atofina Chemicals Inc. (2008), 2008 15903 (ON SC), 89 O.R. (3d) 578 (S.C.), at para. 36, the court stated that “[a]n expert's access to a party's litigation planning or strategy is unquestionably prejudicial.”

[78] In Cardillo v. NN Life Insurance Company of Canada et al, 2005 MBQB 281, 197 Man. R. (2d) 271, the plaintiff’s medical expert received the mediation briefs used by the parties during without prejudice and confidential mediation. The plaintiff argued that the expert’s evidence was not tainted or it should go to weight.

[79] That case involved a preliminary motion before the trial and the plaintiff suggested that a voir dire could be conducted to determine if the expert is tainted and that this issue cannot be determined in a vacuum. The court was concerned with this process as the court would then learn of the details of the mediation brief during the examination of the expert.

[80] The court found that there was no other remedy other than disqualifying the expert. The court was concerned that the expert would not only testify about his observations and treatment of the plaintiff but his approach may be influenced by what he read in the mediation brief.

[81] Cardillo is relevant to this case. The same concerns apply here. By considering the proposals, Mr. Corush’s evidence has been tainted and his evidence is not impartial as he is deeply involved in the litigation strategy and position of each party and has opined on these positions that were part of settlement discussions and proposals and submitted on a without prejudice basis.

[82] With respect to his affidavit, Mr. Corush received instructions to consider a solution without the removal of the Norway Maple tree. The respondents argue that this offends the principle set out in Alfano, at para. 108, where the court stated that “[a]n expert’s report or evidence should not be a platform from which to argue the client’s case.”

[83] Here, the court cannot conduct a voir dire to determine if the expert has been tainted.

Mohan analysis

[84] Looking at the four criteria of the threshold test in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9:

Is it relevant?

[85] The court finds that the relevance is relatively low given that the applicant stated at her cross-examination that she was not advocating for the proposals outlined by Mr. Corush.

Is it necessary?

[86] The court finds that there is some necessity in permitting the court to hear evidence of the various solutions to the issue of the applicant’s right of way.

Not barred by any other exclusionary rule?

[87] This expert considered settlement offers which, in my view, affects the admissibility of this evidence as it impacts this expert’s impartiality.

[88] Here, I have grave concerns with respect to the issue of bias.

[89] In his affidavit, Mr. Corush was asked to comment specifically with respect to the removal of the Norway Maple tree. By making comments and criticizing this proposal, Mr. Corush may have gone beyond lack of independence and bordered on adopting the role of an advocate for the applicant.

[90] I find that the respondents have demonstrated a realistic concern that the expert, despite having signed Form 53, is not impartial.

[91] Having been exposed to exchanges of various offers to settle between the parties, he is taking on the role of the applicant’s advocate in criticizing the positions taken by the respondents.

[92] Once a realistic concern is shown, the applicant has the burden to establish on a balance of probabilities that the expert should nonetheless be allowed to give evidence. I need to perform a cost-benefit analysis.

[93] In Irving Paper, it was alleged that the expert relied on both protected and private information in formulating his opinion in his report. The protected information related to transaction and cost data. The moving party submitted that there were no cases on point but the court must strike a balance between the need to protect confidential information and the right of a party to choose its own expert. The court found that the information was confidential but not privileged and was not part of the defendants’ litigation planning or strategy.

[94] Here, Mr. Corush relied on confidential information protected by litigation privilege and was aware of the respondents’ litigation planning or strategy.

Given by a properly qualified expert?

[95] The court has not heard any objection to Mr. Corush’s qualifications and based on his CV, the court finds that Mr. Corush has the expertise to opine on the issue of the right of way.

Cost-benefit analysis

[96] Even if I were to find that the expert reports meet the basic threshold, I would exercise my gatekeeping function and balance the potential risks and benefits of admitting the evidence to determine whether the potential benefits justify the risks.

[97] In Bruff, the Court of Appeal allowed an appeal where the trial judge failed to properly discharge his gatekeeper duty at the qualification stage as the witness crossed the boundary of acceptable conduct and descended into the fray as a partisan advocate. The Court of Appeal found that his evidence should not have been admitted as his methodology was unfair, he was biased and he was engaged to destroy the plaintiff’s credibility.

[98] Here, I find this evidence has limited probative value as the application judge will be able to consider various proposals for the right of way access. However, this is overborne by its prejudicial effect, that his expert opinion is not impartial as Mr. Corush has entered the fray of litigation strategy. In addition, the application judge would have a preview of the offers exchanged between the parties which are meant to be confidential and protected by litigation privilege. Litigation privilege is important as it ensures the efficacy of the process.

[99] Finally, the applicant has failed to provide the instruction letter. In Moore v. Getahun, 2015 ONCA 55, 124 O.R. (3d) 321, at para. 75, leave to appeal refused, [2015] S.C.C.A. No. 119, the Court of Appeal confirmed that the party relying on an expert witness is required to disclose the other information mandated by r. 53.03(2.1). Item 3. specifies “[t]he instructions provided to the expert in relation to the proceeding.” The applicant has failed to comply with this rule and this provides another reason for the court to strike both reports from Mr. Corush.

Mills report

[100] First, there is a concern regarding the relevance of this evidence as the applicant has not quantified damages in her pleadings nor in her cross-examination. I am not prepared to find that this evidence is not relevant. The issue of damages remains a live issue although based on the record, the applicant has not specifically confirmed the amount she is seeking.

[101] Second, and more importantly, Ms. Mills has not complied with r. 53.03(2.1) 7. as she has not completed the form acknowledging her duty as an expert.

[102] The applicant argues that she is a “non-party” expert or participant expert and does not need to comply with r. 53.03 and that her opinion is based on her ordinary exercise as a real estate agent and not as a litigation expert.

[103] The Court of Appeal in Westerhof v. Gee Estate, 2015 ONCA 206, 124 O.R. (3d) 721, leave to appeal refused, [2015] S.C.C.A. No. 198, discussed non-party experts. That case involved medical practitioners who are engaged and give treatment opinions. At times they were called “‘fact witnesses’ because their evidence is derived from their observations of or involvement in the underlying facts”: Westerhof, at para. 61.

[104] At paras. 62-64, the court stated:

[62] Similarly, I conclude that rule 53.03 does not apply to the opinion evidence of a non-party expert where the non-party expert has formed a relevant opinion based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation. [63] If participant experts or non-party experts also proffer opinion evidence extending beyond the limits I have described, they must comply with rule 53.03 with respect to the portion of their opinions extending beyond those limits. [64] As with all evidence, and especially all opinion evidence, the court retains its gatekeeper function in relation to opinion evidence from participant experts and non-party experts. In exercising that function, a court could, if the evidence did not meet the test for admissibility, exclude all or part of the opinion evidence of a participant expert or non-party expert or rule that all or part of such evidence is not admissible for the truth of its contents. The court could also require that the participant expert or non-party expert comply with rule 53.03 if the participant or non-party expert's opinion went beyond the scope of an opinion formed in the course of treatment or observation for purposes other than the litigation.

[105] I find that Ms. Mills is not a participant expert. She has not been actively involved with the applicant and made observations. She is not similar to a treating physician who has through involvement and observation formulated opinions regarding the patient.

[106] In addition, it is not considered “non-party expert evidence” as in Westerhof. That evidence results from contemporaneous consultation and not as here which was created for litigation. It was created on September 12, 2022 and the application was dated August 12, 2022.

[107] This is an opinion and requires compliance with r. 53.03.

[108] In essence, the applicant is seeking an expert opinion from Ms. Mills to quantify the loss of value if the property is sold without a parking space.

[109] In DBDC Spadina Ltd. v. Walton, 2014 ONSC 4644, 121 O.R. (3d) 449, at para. 59, aff’d 2015 ONCA 624 and 2015 ONCA 628, the court confirmed the necessity of complying with r. 53.03.

[110] Ms. Mills purports to express an opinion and opinion evidence in civil cases must comply not only with the general rules of evidence, but also with r. 53.03(2.1). That rule mandates that any report of an expert witness contain seven categories of information. She has failed to do so.

[111] Furthermore, she has failed to make herself available for cross-examination.

[112] Therefore, her report is struck from the record.

Striking paragraphs of the affidavits

[113] Pursuant to r. 25.11, the court has the power to strike documents which offend these rules:

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document, (a) may prejudice or delay the fair trial of the action; (b) is scandalous, frivolous or vexatious; or (c) is an abuse of the process of the court.

[114] It is now settled law that a “document” includes an affidavit within the meaning of r. 25.11: Allianz Global v. Attorney General of Canada, 2016 ONSC 29, 88 C.P.C. (7th) 201; Holder et al. v. Wray et al, 2018 ONSC 6133.

[115] I rule that the following paras. of the affidavit of the applicant dated November 15, 2022 will be struck:

• 74 which refers to the Mills report;
• 76 which refers to the Corush report;
• 79 which refers to Mr. Corush’s proposed solutions;
• 80 which refers to Mr. Corush’s first proposed solution; and
• 81 which refers to Mr. Corush’s second proposed solution.

[116] Regarding the applicant’s supplementary affidavit dated May 31, 2023:

• Paras. 83 and 86 should be struck as they refer to the Corush report.

Conclusion

[117] Accordingly, the motion is granted as follows:

• An order striking the applicant’s expert report and affidavit of Jerrold Corush and removal from the application record;
• An order striking the report of Janny Mills and removal from the application record; and
• An order striking paras. 74, 76, 79, 80 and 81 of the applicant’s affidavit dated November 15, 2022 and paras. 83 and 86 of the applicant’s affidavit dated May 31, 2023 as they refer to the experts’ reports.

[118] Costs are awarded to the respondents in the agreed amount of $17,000 (all inclusive).

Justice A. Doyle Released: April 23, 2024