Shepherd v Smith 2026 ONSC 3691
CITATION: Shepherd v Smith 2026 ONSC 3691
MOTION HEARD: 20260602
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Maria Shepherd and Ashley Shepherd, Plaintiffs
AND:
Charles Smith, Defendant
BEFORE: Associate Justice Jolley
COUNSEL: Taylor Bain and Kate Kehoe, counsel for the moving party plaintiffs
Audrey-Anne Delage and Erica Baron, counsel for the responding party Smith
HEARD: 2 June 2026
REASONS FOR DECISION
A. Overview
1The plaintiff Maria Shepherd was wrongfully convicted of manslaughter in the death of her three and a half year old stepdaughter, Kasandra. She alleges that she was charged and convicted based on the flawed findings and testimony of the defendant, Dr. Charles Smith, the pathologist who conducted Kasandra’s post-mortem examination. Dr. Smith opined that Kasandra had died as a result of a blow or blows to her head.
2Maria initially pleaded not guilty to manslaughter. She alleges that she and her lawyers were ultimately persuaded to plead guilty to obtain a reduced sentence, to be served near her children and with early parole. She pleads that she and her lawyers were convinced that she would be convicted because of Dr. Smith’s compelling evidence “and impeccable reputation”.
3In November 2005, the Chief Coroner for Ontario announced a review of suspicious death cases in which Dr. Smith had conducted the autopsy between 1991 and 2002, including that of Kasandra, and a commission of inquiry was established effective 25 April 2007 (the “Goudge Inquiry”). On learning of the Coroner’s review, Maria appealed her conviction to the Ontario Court of Appeal and on 29 February 2016, her appeal was allowed and her conviction set aside and an acquittal ordered. According to the plaintiffs, the Court wrote that fresh evidence rendered the theory of death advanced by Dr. Smith discredited and held that there was no demonstrated nexus between her conduct and her stepdaughter’s death.
4Maria and her husband, Ashley, then commenced this action in February 2018, alleging that Maria’s “arrest, charge, prosecution, wrongful conviction and imprisonment were the result of the reckless, bad faith, negligent and intentional acts and omissions of the defendants [including Dr. Smith]” (paragraph 20 of the statement of claim).
5Dr. Smith delivered a motion for summary judgment seeking dismissal of the plaintiffs’ claim. In support of his motion, he swore an affidavit dated 28 March 2021.
6On 22 November 2024, plaintiffs’ former counsel cross-examined Dr. Smith on his affidavit. It is alleged that Dr. Smith made statements during that cross examination that contradicted the evidence he gave at the Goudge Inquiry.
7On 29 August 2025, the plaintiffs served a notice of change of lawyer. Two weeks later, on 12 September 2025, the plaintiffs’ new counsel served a responding motion record that contained Dr. Smith’s closing arguments to the Goudge Inquiry and transcripts of Dr. Smith’s testimony at the Goudge Inquiry. It also contained an affidavit sworn by Justice Dunn countering assertions that Dr. Smith had made about his interactions with Justice Dunn during and after a trial in which Dr. Smith provided expert evidence. The defendant objected to the introduction of the responding record.
8The plaintiffs now seek leave under rule 39.03 to file the responding record after having conducted their cross-examination of Dr. Smith, in connection with the summary judgment motion.
B. The Applicable Law
9Rule 39.02 provides as follows:
39.02 (1) A party to a motion or application who has served every affidavit on which the party intends to rely and has completed all examinations under rule 39.03 may cross-examine the deponent of any affidavit served by a party who is adverse in interest on the motion or application.
(2) A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination to be conducted under rule 39.03.
10The parties agree on the test for determining whether to grant leave under rule 39.02(2). The evidence must be relevant, must respond to issues raised on cross-examination, not necessarily raised for the first time and not cause the opposing party non-compensable prejudice that cannot be addressed by imposing costs, terms, or an adjournment. Further, there must be a reasonable or adequate explanation for why the evidence was not included at the outset (First Capital Realty Inc. v Centrecorp Management Services Limited [2009] O.J. No. 4492 (Div. Ct.) at paragraph 13).
11First Capital also affirmed that the court is to take a “flexible, contextual approach” in assessing the criteria, above, “having regard to the overriding principle outlined in rule 1.04 of the Rules of Civil Procedure that the rules are to be interpreted liberally to ensure a just, timely resolution of the dispute. An overly rigid interpretation can lead to unfairness by punishing a litigant for an oversight of counsel” (see paragraph 14). This approach is to be preferred over earlier jurisprudence that required the moving party to meet a ‘very high threshold’ or the court to grant leave only ‘sparingly’. (See Mars Canada Inc. v. Bemco Cash & Carry Inc. 2015 ONSC 8078 at paragraphs 9 and 10).
(i) Is the evidence relevant?
12The plaintiffs argue that the material in the responding record is relevant as it contains statements from Dr. Smith that are directly opposite of the statements he makes in support of his motion for summary judgment. They argue the statements go directly to his credibility. They also argue that the statements contradict Dr. Smith’s assertions in this action about what he says was the nature of the actions he took in the course of his investigation into Kasandra’s death, an issue relevant to whether those actions are protected by the Coroners Act.
13The respondent argues that the responding record is inadmissible and therefore should not be part of the record in any event. The evidence should be excluded as inadmissible at this stage where the motions court is able to find on the record before it that the proposed responding record is “clearly inappropriate”, the language in McPeake v Barber et al 2024 ONSC 3909 at paragraph 13, cited by the respondent.
14In support of his argument, the respondent argues that the evidence the moving parties seek to introduce is prohibited by section 9(1) of the Public Inquiries Act, RSO 1990, c P.41, below and by section 42(1) of the Coroners Act, with its mirror language:
S. 9 Protection of witnesses
9(1) A witness at an inquiry shall be deemed to have objected to answer any question asked him or her upon the ground that his or her answer may tend to criminate the witness or may tend to establish his or her liability to civil proceedings at the instance of the Crown or of any person, and no answer given by a witness at an inquiry shall be used or be receivable in evidence against him or her in any trial or other proceedings against him or her thereafter taking place, other than a prosecution for perjury in giving such evidence.
15I do not agree that the answer as to the admissibility of the responding record is as clear as the defendant argues. First, at least some of the transcript evidence of Dr. Smith that the plaintiffs propose to introduce was arguably not compelled testimony. It is the plaintiffs’ submission that Dr. Smith made submissions that he was not required to make and it is arguable that the protections of the Public Inquiries Act do not apply to at least that portion of the record.
16Second, the plaintiffs argue that they are not seeking to tender Dr. Smith’s transcripts for the truth of their contents but as prior inconsistent statements to be introduced to impeach his credibility. As noted in M.A.S. v Ludwig 2004 CanLII 30968 (ON CA), quoting with approval from the motion’s judge decision:
13In my view, s. 42(1) of the Coroners Act is quite clear. It protects all answers given by a witness at an inquest such that they cannot be used or be receivable in evidence in a subsequent trial or proceeding against the witness, except perhaps to impeach the witness’ credibility or in a perjury prosecution. [emphasis added].
17Ultimately, the court in M.A.S. held the defendant’s testimony at the inquest was inadmissible in the civil action because it was not being used for the limited purpose of impeaching the defendant’s credibility but was being tendered by the plaintiffs to prove their allegation that the defendant acted with malice and mala fides in the execution of his public office.
18The same can be said of the affidavit of The Honourable Patrick Dunn sworn 19 December 2007. The respondent argues that the affidavit is, firstly, hearsay, and secondly, inadmissible for the truth of its contents. The plaintiffs argue that they are not tendering it for that purpose. Dunn, J. swore the affidavit to counter a response that Dr. Smith gave to the College of Physicians and Surgeons suggesting that he and Dunn, J. discussed evidence about a matter before him, that Dunn, J. believed a certain accused to have been guilty and believed the opinion presented by Dr. Smith. The plaintiffs wish to tender the affidavit to address the credibility of Dr. Smith as Dunn, J. deposed that none of those conversations occurred and that he would not have discussed the merits of any of his cases with Dr. Smith.
19On this record, I cannot find the evidence would be clearly inadmissible on the summary judgment motion. As Master Muir stated in Mars Canada Inc., supra,
12… it is my view that this motion is not the time or place to advance an argument based on the general admissibility of expert evidence. I agree with the plaintiff that the court must exercise a gatekeeper function when it comes to expert evidence but it is my view that any admissibility decision should be made by the judge hearing the summary judgment motion. If an objection is made, the summary judgment judge will be able to assess the expert evidence after Dr. Bova has been cross-examined and within the full context of the summary judgment motion.
20Myers, J. also held in United States of America v Gushlak 2020 ONSC 6011(“Gushlak”) at paragraph 16 that “there is no question that the issue of admissibility of evidence on a motion is best left to the hearing judge.”
21He went on to state at paragraph 17:
17However, it seems to me that I can resolve the issue under R. 39.02 (2) by simply assuming that the evidence under discussion is admissible and then leaving the actual decision on admissibility to the motion judge. If I grant leave to deliver evidence that the motion judge later says is inadmissible, there is no injustice to the defendant. However, if I refuse leave to deliver evidence on the basis of a premature decision on admissibility, there is a risk of doing injustice to the proffering plaintiff. The motion judge will read and hear all of the evidence on the summary judgment motion. She might well be in a better position than me to determine whether the evidence is admissible. This is particularly the case for assessing the necessity and reliability of the evidence under the principled approach to hearsay exceptions.
22Myers, J. ultimately refused leave to introduce the further evidence because he was not satisfied that the plaintiff had a satisfactory reason for not putting the evidence to the defendant at his cross-examination. The case did not turn on admissibility, as suggested, but on a failure to explain why the documents were not tendered in advance of the cross-examination, “a strategic choice that backfired” (paragraph 23).
23The respondent also argues that allowing the plaintiffs to submit the evidence now when they failed to put it to him during his cross-examination, to impugn his credibility, would offend the rule in Browne v. Dunn and that failure is fatal.
24The moving parties argue that the evidence was not available to them at the time and they have outlined in the affidavit of Katherine Doering sworn 12 September 2025 the steps they took to obtain the information. In any event, I find that any unfairness to Dr. Smith by not putting the evidence to him during his cross-examination can be cured by imposing terms on the introduction of the responding record that will give him the chance to explain any contradiction.
25I find the question of the admissibility of the responding record should be left to the motions judge who can determine admissibility in the context of the motion. Even if the issue of admissibility should be determined on this motion, the evidence before me does not establish that the record is so clearly inadmissible that it should be excluded at this stage.
(ii) Does the evidence respond to issues raised on cross examination?
26Dr. Smith’s position is that he interacted with the police as part of his coroner investigation. The plaintiffs argue that Dr. Smith went further and assisted the police with their criminal investigation. The material in the responding record responds to the role that Dr. Smith actually carried out.
27Dr. Smith argues that he spoke to his role in his affidavit and this was not an issue that the plaintiffs learned during his cross-examination. In fact, he argues that the plaintiffs focused on this issue during his cross-examination. I am satisfied on the record before me that the issue was raised on cross-examination. However, the plaintiffs did not have the evidence in the responding record to put to Dr. Smith for the reasons set out in the Doering affidavit. It is not a case where the plaintiffs were trying to split their case by holding back evidence. The issue of Dr. Smith’s role being raised on cross-examination, I find the plaintiffs should at least be able to test the credibility of the answers he gave through their responding record.
(iii) If the responding record is admitted, will Dr. Smith face non-compensable prejudice that cannot be addressed by imposing costs, terms, or an adjournment?
28Dr. Smith argues that he will not have the opportunity to address these new documents and will be prejudiced if they are allowed to be introduced.
29The plaintiffs argue that Dr. Smith is well aware of the evidence contained in the responding record as it primarily came from him or was submitted on his behalf by his counsel.
30The stakes are high for the plaintiffs, as their claim is at risk of being dismissed, should Dr. Smith succeed. They argue that credibility is a critical issue on his motion for summary judgment.
31I find in this instance Dr. Smith will not suffer non-compensable prejudice if the responding record is admitted, particularly if he is given notice of the alleged contradictions that the plaintiffs intend to argue at the summary judgment motion.
(iv) Is there a reasonable or adequate explanation for why the evidence was not included at the outset?
32The plaintiffs argue that their newly retained counsel reviewed the record and determined that this evidence would be critical. This was found in Obsidian to be a reasonable or adequate explanation for why the evidence was not tendered before the cross-examination. As Rady, J. noted at paragraph 19, “There has been a change of counsel. It is fair to say that he likely brought a new or different perspective to the claim. Something has obviously struck him as important that previous counsel did not consider to be so.”
33The plaintiffs also argue that the evidence was not easily attainable and tendered the Doering affidavit outlining the steps they had to take to obtain the material that was before the Goudge Inquiry. It was not in the file of their prior counsel and was not available when they first looked online. Nor was it accessible through the inquiries they made.
34Given the importance of the issues and the potential gravity to the plaintiffs of excluding the evidence, I find that the motions judge should have a full factual record before her to decide the motion. She will, of course, always retain the discretion to hear arguments on admissibility and exclude evidence on that basis.
35In 2212886 Ontario Inc. v. Obsidian Group Inc. 2016 ONSC 6836 (“Obsidian”) on a similar motion for leave to deliver further evidence on the summary judgment motion after cross-examination, the court was cognizant of the significance of a motion for summary judgment and held that:
18I have concluded that the defendants should be permitted to file the additional affidavit they wish for several reasons. First, it is significant that the outstanding motion is for summary judgment. If successful, the plaintiffs may obtain rescission and monetary relief and the proceedings would be at an end (subject to an appeal). Accordingly, the same safeguards that ensure trial fairness should be observed here. The responding party must lead trump and in my view, must be permitted an opportunity to do so, even at this stage, in order that the court is able to perform its truth seeking function. (emphasis added)
C. Conclusion
36As stated by Rady, J. in Obsidian at paragraph 17 “To my mind, distilled to its essence, the question to be answered is this: what does the justice of the case require?” I find justice in this case requires that the plaintiffs have leave to file their responding record, as contained in volumes 1-3 in the motion record before me, with certain guardrails to ensure fairness to Dr. Smith.
37As offered by counsel for the plaintiffs, they are to provide the defendant with a list of the alleged contradictions that they intend to rely on at the summary judgment motion, so that Dr. Smith is not taken by surprise. That is to be provided by 31 July 2026. Dr. Smith may then wish to file an affidavit to address these inconsistencies. If so, he shall do so by 11 September 2026.
38Costs of the motion payable by the defendant to the plaintiffs on a partial indemnity basis in the amount of $9,500, payable in the cause.
Associate Justice Jolley
Date: 23 June 2026