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Simon Shields, LLB

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Evidence - Expert Evidence - Summary Judgment

Sanzone v. Schechter (Ont CA, 2016)

In this case the Court of Appeal discusses the use of expert evidence in summary judgment motions. Here a successful defendant's summary judgment below was reversed in part due to their failure to file an expert affidavit on the motion (the motion was originally granted against the plaintiff for her failure to do the same):
[15] The appellant submits the motion judge erred in ruling that Dr. Shafer’s letter was inadmissible on the summary judgment motion. I do not agree. The principles governing the admissibility of evidence on a summary judgment motion are the same as those that apply at trial, save for the limited exception of permitting an affidavit made on information and belief found in rule 20.02(1) of the Rules of Civil Procedure.

[16] As a general rule, when a party seeks to adduce expert evidence on a summary judgment motion, the evidence of the expert must comply with rule 53.03, unless the opinion evidence is based on the witness’ observation of or participation in the events in issue, as explained in Westerhof v. Gee Estate, 2015 ONCA 206 (CanLII), 310 O.A.C. 335, at paras. 60-62. A party can file either an affidavit from the expert containing his or her opinion or an affidavit from the expert with the report attached: Danos v. BMW Group Financial Services Canada, a division of BMW Canada Inc., 2014 ONSC 2060 (CanLII), [2014] O.J. No. 1802, at para. 29, aff’d 2014 ONCA 887 (CanLII).

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