Court File and Parties

COURT FILE NO.: CV-19-00081456-0000 DATE: 2024-07-08 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: McPeake v Barber et al.

BEFORE: Justice K.E. Cullin

COUNSEL: Yan David Payne, for the Plaintiff Stephen Cavanagh, for the Defendants

HEARD: July 4, 2024

Endorsement

[1] This matter appeared before me for a case management conference, pursuant to Rule 50.13 of the Rules of Civil Procedure.

[2] This is an action by the plaintiff seeking damages for alleged professional negligence by his former lawyers (“the defendants”). The claim arises from the defendants’ advice in relation to a proceeding for professional negligence (“the Cadesky action”) against the plaintiff’s former tax accountants and lawyers (“the Cadesky defendants”). The Cadesky action was dismissed following a summary judgment motion; that decision was subsequently upheld on appeal.

[3] The defendants have brought a motion for summary judgment. I am seized of the motion and have addressed its timetabling through a series of case management orders.

[4] The plaintiff argues that this action is not suitable for a summary judgment motion. Because I am the hearing judge, on May 30, 2023 I ordered that the parties participate in a pre-motion conference before another judge to explore the plaintiff’s objection. That pre-motion conference was commenced before Justice Johnston on January 15, 2024 but was adjourned and returned to me to address an objection by the defendants to the responding evidence filed by the plaintiff.

[5] At this case management conference, the defendants have asked the court to strike the plaintiff’s affidavit in response to the motion. The plaintiff acknowledges that some minor issues should be addressed by the Court but argues that striking the affidavit is unwarranted. In support of their positions, the parties filed written briefs and made oral submissions.

[6] The objective of the evidentiary record of a party responding to a summary judgment motion is to identify disputed material facts and to demonstrate the merits of their case. While the moving party bears the initial burden of establishing that there is no genuine issue of material fact requiring a trial, if they discharge this burden, the onus shifts to the responding party to demonstrate that their claim or defence has a real chance of success. (Hercules Managements Ltd. v. Ernst & Young, [1997] 2 SCR 165)

[7] The evidentiary record must contain admissible, relevant evidence. Affidavit evidence should be coherent and provide an organized set of facts which demonstrates that there is a genuine issue to be tried. (Greymac Trust Co. v. Reid, [1988] OJ No 2812, para. 3)

[8] In response to the defendants’ motion, the plaintiff has filed a single affidavit that, with exhibits, is 2,250 pages long. It is not focused to the issues in this litigation, or at minimum organized in a manner which identifies the relevance of much of the evidence it contains to the issues in this litigation.

[9] The exhibits to the plaintiff’s affidavit include third party affidavits from other proceedings, excerpts of third party evidence in discovery and trial transcripts from other proceedings, and documents prepared by third parties. Much of this evidence is inadmissible hearsay, tendered to establish facts, with the expectation that the court will rely on it for the truth of its contents. Specifically, I would note:

a. Absent an explanation for the inclusion of affidavits from other proceedings as exhibits rather than in the first instance, such evidence is inadmissible (Carter v. Canada (Attorney General), 2011 BCSC 1371, at paras 25-28). b. Section 5(2) of the Evidence Act, R.S.O. 1990, c.E.23 speaks to the authenticity of transcript evidence, but does not overcome the issue of hearsay inadmissibility (R. v. Caesar, 2016 ONCA 599, at paras 45-50). c. Appending documents as exhibits to an affidavit with no evidentiary foundation to establish their authenticity or admissibility is, at minimum, problematic (Toronto-Dominion Bank v. P.M.J. Holdings Limited et al., 2019 ONSC 7297, at paras 15-25; The Owners, Strata Plan VR29 v Kranz and others, 2020 BCSC 2171, at paras 31-64).

[10] Counsel for the plaintiff submits that, if this evidence is ordered excluded, “the Plaintiff would be forced to reconstruct the underlying case and to call numerous adverse witnesses again”. In my view, this is not sufficient to establish the necessity of admitting this hearsay evidence. If the plaintiff takes the position that the evidence is not hearsay because he is relying on it for something other than the truth of its contents, then that needs to be clearly articulated; it has not.

[11] As noted by Myers J. in Adam et al. v. Ledesma-Cadhit et al, 2015 ONSC 3043, at para 9, the court may use case conferences under Rule 50.13 of the Rules of Civil Procedure to, “exercise some control over the amount and scope of evidence” on a summary judgment motion. In my view, it is appropriate to do so here.

[12] The relief requested by the defendants is to strike the plaintiff’s affidavit in its entirety, with leave to amend. They rely on Rule 25.11 of the Rules of Civil Procedure, which permits the court to strike all or part of a pleading or other document if it is satisfied that it: may prejudice or delay a fair trial; is scandalous, frivolous, or vexatious; or is an abuse of the court’s processes. Affidavits fall within the category of “other documents” to which the rule applies (Allianz Global v Attorney General of Canada, 2016 ONSC 29, at para 10).

[13] As a general rule, the discretion to strike an affidavit in advance of a motion should be exercised sparingly (Neighbourhoods of Windfields Limited Partnership v Death, [2007] OJ No 3042, at para. 33). When an affidavit contains material which is “clearly inappropriate” and that would put the opposing party to, “unreasonable effort or cost” or require the filing of “voluminous material” to respond, such relief may be warranted (Neighbourhoods, at para. 37; Metzler Investment GMBH v. Gildan Activewear Inc.).

[14] In my view, it would be prejudicial to a fair hearing of this motion and an abuse of the court’s processes to permit this matter to proceed with plaintiff’s affidavit as filed. It is rife with inadmissible and irrelevant evidence. Responding to it will put the defendants to significant time and expense. The end result will be a voluminous and largely irrelevant record before the court. To defer the request to strike the affidavit to the eventual hearing of the motion, inevitably with the same result, would only serve to invite a request for an adjournment with attendant additional cost, or an appeal. The only appropriate relief is to strike the affidavit in its entirety at this stage with leave to the plaintiff to file a fresh affidavit subject to directions from the court.

[15] In making orders and directions, I recognize that this action arises from the conduct of the Cadesky action and that a fulsome response to the summary judgment motion may require reference to some of the evidence and information that would have been available to the defendants (not for the truth of its contents), in support of the plaintiff’s position regarding the issues of standard of care, causation, and damages. What the plaintiff must recognize is that this action is not a re-litigation of the Cadesky action and that his response must focus on the issues raised in the Statement of Claim and the defendants’ motion which include the following:

a. How the outcome of the Cadesky action would have differed absent the negligence of the defendants and what damages arise from that, specifically: i. The negligence of the defendants in failing to advise the plaintiff of the need for expert evidence and to marshal that expert evidence, with respect to the standard of care required of the Cadesky defendants. ii. The negligence of the defendants in failing to advise the plaintiff of the need to add Ken Finkelstein and George Jones as parties to the Cadesky action and to take steps to add them as defendants within the applicable limitation period. b. The impact, if any, of the Federal Court of Appeal’s decision in Sommerer v. Canada, 2012 FCA 207, [2014] 1 FCR 379 on the Cadesky action; c. The basis of the plaintiff’s claim against Gowling WLG; d. The damages arising from the defendants’ negligence which are alleged to be: i. Fees, disbursements, taxes, and expenses paid for the Cadesky action and the appeal of the Cadesky action; ii. Costs paid by the plaintiff with respect to the Cadesky action and the appeal; iii. Loss of the use of the funds paid to litigate the Cadesky action and appeal; iv. Costs of the rectification and Tax Court appeal, including the income tax payable by the plaintiff; v. Loss of the opportunity to claim damages or a settlement against the Cadesky defendants, Finkelstein, and Jones; and, e. The reason, if any, for the failure to serve expert evidence with respect to any issues requiring expert evidence.

[16] In making orders and directions, I have also noted the following which were discussed at this case management conference:

a. The defendants objected to the plaintiff’s use of documents which were disclosed for the first time as affidavit exhibits in response to the motion. In submissions, counsel for the defendants advised that they would not be pursuing that objection as it could be addressed during cross-examinations, but wanted it noted as a symptom of larger problems with the plaintiff’s approach to the motion. b. The defendants objected to the expert report attached as an exhibit to the plaintiff’s affidavit. In submissions, counsel for the plaintiff acknowledged that an affidavit from the expert properly tendering his evidence would be required and served. He submitted that it was included in the plaintiff’s affidavit not as opinion evidence but to provide context to the plaintiff’s evidence. c. The defendants objected to the use of evidence from other proceedings as a breach of Rule 30.1 of the Rules of Civil Procedure. For the purpose of this decision, I am not making a ruling on the applicability of Rule 30.1. I do so without prejudice to the position of either party on the eventual argument of the defendants’ summary judgment motion.

[17] For these reasons, I hereby make the following orders and directions:

a. The Affidavit of Barry McPeake, sworn September 8, 2023 in response to the defendants’ summary judgment motion is struck with leave to file a fresh affidavit. b. Third party affidavits from other proceedings are not admissible on the motion for summary judgment for the truth of their contents. This order is made without prejudice to the ability of any party seeking to rely on such evidence to satisfy the court of its admissibility as an exception to the hearsay rule. c. Transcripts of evidence of third parties from other proceedings are not admissible on the motion for summary judgment for the truth of their contents. This order is made without prejudice to the ability of any party seeking to rely on such evidence to satisfy the court of its admissibility as an exception to the hearsay rule. d. A party seeking to use documentary evidence as an exhibit to an affidavit on the motion for summary judgment must comply with the applicable rules of evidence regarding the admissibility of the document. This order is made without prejudice to the ability of any party seeking to rely on a document for the truth of its contents to satisfy the court of its admissibility as an exception to the hearsay rule. e. Nothing in this order shall be deemed to preclude a party from raising an objection to the admissibility of evidence pursuant to Rule 30.1 of the Rules of Civil Procedure upon the argument of the summary judgment motion. f. Counsel may file an amended timetable for the summary judgment motion on consent prior to July 31, 2024. If counsel cannot agree upon a timetable, the court will order one upon receiving a written request from either counsel, which request is to be directed to my attention through my judicial assistant. g. The Trial Co-Ordinator is asked to schedule a pre-motion Conference with respect to this motion, either with Justice Johnston or another available out-of-region Judge. It is to be a one-hour Conference, to be scheduled after September 15, 2024 to permit counsel to exchange motion materials in preparation for the conference. h. The costs of this conference are reserved to the hearing of the motion.

Cullin, J. Date: July 8, 2024