COURT FILE NO.: CV-19-81593
DATE: 20241101
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lisa Aileen Davis, Plaintiff
AND:
Wayne Ng, Defendant
BEFORE: A. Kaufman J.
COUNSEL: Laurie Tucker and Priya Shah, Counsel for the Plaintiff
Dean Melamed and Priyanka Monpara, Counsel for the Defendant
HEARD: October 21, 2024
Amended ENDORSEMENT
The text of the original Endorsement dated October 23, 2024, was amended on November 1, 2024, and the description of the amendment is appended.
[1] The defendant brings this mid-trial motion to preclude Mr. Sigsworth, an accountant and Rule 53 expert, from testifying at trial. Mr. Sigsworth prepared two reports providing a range for the plaintiff’s loss of income. The reports are dated August 4, 2021, and July 2, 2024.
Background
[2] The plaintiff sustained injuries on October 7, 2017 when her motorcycle collided with the defendant’s vehicle. She is a professional server, earning income comprised of a base salary plus tips. She did not maintain records of her tips before or since the accident. At trial, she provided an estimate of her tip income. The plaintiff also tendered into evidence certain records from her previous and current employers, which offer some information about her tip earnings during specific periods, albeit not precisely.
Mr. Sigsworth’s reports
[3] In his reports, Mr. Sigsworth noted that in the absence of clear documentation, the plaintiff’s income loss was calculated under various scenarios. These scenarios are designed to provide a range of potential losses over her remaining working life and do not purport to provide an exact figure.
[4] The first scenario assumes that her tips equal her wages, while the second assumes she would have earned tips of $750 per week for 50 weeks, along with an additional $150 on St. Patrick’s Day. Mr. Sigsworth based his calculations on the plaintiff’s claimed tip income, and on employment files, pay stubs, income replacement benefits forms, income tax returns, and notices of assessment and reassessment.
[5] In the report dated August 4, 2021, Mr. Sigsworth estimates the plaintiff’s past and future loss of income at $149,169 under the first scenario and $313,803 under the second. The July 2, 2024 report provides an update reflecting the trial date and the latest economic statistical data. This updated report also features the plaintiff’s most recent employment income figures with her new employer, Vittoria Trattoria. Finally, it introduces an additional calculation under each scenario—one in which the plaintiff must take early retirement at age 60 due to the motor vehicle accident. Under these four scenarios, the plaintiff’s loss of income ranges from $109,612 to $514,317.
Defendant’s concerns over the reports
[6] The defendant acknowledges Mr. Sigsworth's qualifications and expertise in accountancy. Mr. Sigsworth has been a Chartered Professional Accountant (CPA) since 2014 and a Certified General Accountant (CGA) since 2003. He holds other relevant designations. However, the defendant contends that Mr. Sigsworth’s reports do not satisfy the threshold requirements for admissibility and asserts that their prejudicial effect outweighs their probative value.
[7] The defendant raises several critiques of the reports. He argues that Mr. Sigsworth relies significantly on the plaintiff’s estimates of tip income, which lack concrete substantiation. He failed to obtain objective data, such as credit card records, that could have substantiated her tip earnings. Additionally, the defendant points out that Mr. Sigsworth cites general articles about unreported tip income in the service industry that are not specifically applicable to the plaintiff's workplaces. He argues that the expert’s failure to seek objective information undermines the report's credibility.
[8] Furthermore, the defendant claims the provided scenarios are unbalanced and accept the plaintiff’s evidence without critical scrutiny. He characterizes the report as a piece of advocacy. Finally, he contends that presenting multiple scenarios risks inflating the jury’s perception of damages, and that the report’s complex calculations may confuse the jury, leading them to unduly defer to the expert's conclusions.
[9] I am not persuaded by these submissions.
Criteria for the admissibility of expert opinion
[10] To assess the admissibility of expert opinion evidence under the Mohan[^1] criteria, a trial judge should follow a two-step procedure.
[11] The initial step in the admissibility inquiry requires that the party offering the expert opinion establish four conditions: (1) relevance; (2) necessity in assisting the trier of fact; (3) absence of an exclusionary rule; and (4) a properly qualified expert.[^2]
[12] The second step of the admissibility analysis requires the trial judge to perform a "gatekeeper" function, conducting a case-specific cost-benefit analysis.[^3] The judge must evaluate whether the expert evidence benefits the trial process sufficiently to justify its admission. The "cost" aspect assesses the risks associated with the time consumption, prejudice, and confusion that may accompany expert opinion evidence. In contrast, the "benefit" side evaluates the probative value of the evidence and its significance to the issue it addresses.
Analysis
[13] I am satisfied that the criteria for the admissibility of expert evidence are met.
[14] The proposed expert's field is accounting, and his testimony addresses a key issue: determining the present value of the plaintiff’s income loss due to an accident. At this stage, relevance refers to legal relevance, meaning the testimony should tend to make a fact at issue more or less probable than without it.[^4] The plaintiff intends to request the jury to award damages that reflect the present value of the difference between her current income stream until retirement and the income she would have earned but for the accident. This makes his testimony legally relevant, as it influences the likelihood of facts at issue—namely, the financial impact of the accident on the plaintiff’s income loss.
[15] The evidence is also necessary to assist the trier of fact, as explained in Mohan[^5], because the trier of fact needs expert insight due to the technical nature of financial calculations involving discount rates, inflation, and contingencies. Issues like these require expertise that a layperson could not be expected to comprehend without assistance.
[16] The defendant acknowledges Mr. Sigsworth’s qualifications and does not claim his opinion contravenes any exclusionary rules.
[17] The defendant’s main criticism is that the expert’s opinion is based on the plaintiff’s unverified estimates of tip income. However, I do not see this methodology as indicative of bias or advocacy. Mr. Sigsworth acknowledges that there is no “clear documentation regarding the plaintiff’s historical income from tips”. He calculates the plaintiff’s income loss based on four hypothetical situations designed to provide a range of income loss.
[18] The first scenario is that she earns as much in tips as she does in base salary. Mr. Sigsworth refers to an article from the Globe and Mail which reports that tips could represent 100% to 200% of wage income and could be as high as 400%. The second scenario, which results in a significantly larger income loss, is based on the plaintiff’s “tips as claimed”.
[19] The approach of asking hypothetical questions to experts is well-established. As noted in The Law of Evidence in Canada, when experts lack personal knowledge of matters in issue that are in dispute, their opinion can be based on hypothetical questions.[^6] However, it ultimately falls to the trier of fact to assess the factual premises’ validity. If the trier rejects those premises, the expert's opinion must likewise be rejected.[^7]
[20] I am also not persuaded that the proposed evidence fails the second step of the admissibility inquiry. Under the cost-benefit analysis, the court must determine whether the expert evidence should be admitted because its probative value outweighs its prejudicial effect.
[21] In my view, Mr. Sigsworth’s testimony is not prejudicial. It will not prolong the trial significantly. The jury can and should be trusted to evaluate the factual assumptions underpinning his report. The expert derived his calculations from two clear scenarios that the jury can easily understand, and either accept or reject. I am confident that the jury will not be confused by complex mathematical calculations to the point of deferring to the expert's assumptions. I am also convinced that the jury will understand that the assumptions being presented are ones the plaintiff must establish before any weight can be attributed to Mr. Sigsworth’s conclusions.
[22] Finally, I conclude that the evidence will be beneficial. The value of the expert’s evidence lies in his specialized accounting expertise, not the validity of the assumptions used in his calculations. To the extent the jury accepts the hypothetical scenarios underlying Mr. Sigsworth’s conclusions, the jury will be able to use his expert analysis to understand and quantify the plaintiff's alleged income loss accurately.
[23] For the foregoing reasons, the defendant’s motion is dismissed.
[24] Costs are reserved.
Justice A. Kaufman
APPENDIX
Counsel for the Defendant previously stated:
Melamed and Priyanka Monpara, Counsel for the Defendant
Counsel for the Defendant now reads as follows:
Dean Melamed and Priyanka Monpara, Counsel for the Defendant
COURT FILE NO.: CV-19-81593
DATE: 20241101
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
LISA AILEEN DAVIS
Applicant
– and –
WAYNE NG
Respondent
Endorsement
Mr. Justice Alexandre Kaufman
Released: November 1, 2024
[^1]: R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9. [^2]: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, at para 19. [^3]: Ibid, at para 24. [^4]: R. v. Abbey, 2009 ONCA 624, at para 82. [^5]: R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9. [^6]: Sopinka, Lederman and Bryant, The Law of Evidence in Canada (LexisNexis/Butterworths, Toronto and Vancouver, 1999), at 12.45, p. 625. [^7]: Ibid, at 12.48, p. 626.