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Civil Practice - Trial Record - Composition

Evidence - Expert Reports - Practice

Civil Practice - Trial - Labelling of Exhibits

1162740 Ontario Limited v. Pingue (Ont CA, 2017)

In this case the Court of Appeal sets out principles applicable to a trial judge's compilation of a trial record, including policies for what documents should be allowed into it - particularly respecting expert reports, motion records and document briefs:
[14] The goal of a trial judge in supervising the assembly of a trial record is completeness and accuracy, so that the panel of this court sitting on the appeal can discern without difficulty exactly what was before her at any moment in the course of the trial.

[15] With respect to document management in particular, relatively little is prescribed by the Rules of Civil Procedure. Trial practices have emerged to assist judges, but they are not universally or consistently followed: see generally Michelle Fuerst and Mary Anne Sanderson, Ontario Courtroom Procedure, 4th ed. (Markham: LexisNexis, 2016), at p. 318, 325, and 328.

[16] In these reasons, I comment on two areas of lingering difficulty that affect this appeal: expert reports and motion materials.

[17] Throughout, I draw a distinction between numbered exhibits, which are governed by r. 52.04 of the Rules of Civil Procedure, and lettered exhibits, which are documents “marked for identification”: Ontario Courtroom Procedure, at p. 318, 325, and 328. The distinction is important because, subject to the trial judge’s discretion, the jury has access to the numbered exhibits, but not to the lettered exhibits: see Ontario Courtroom Procedure, at p. 759-760.

E. Expert Reports and the Trial Record

(1) The Practice

[18] Rule 53.03 of the Rules of Civil Procedure sets out the requirements for expert reports. By the time the trial starts, counsel will ordinarily have had copies of the experts’ reports from all parties for some time.

[19] Although expert reports are exchanged and form the basis for examination-in-chief and cross-examination at trial, the expert evidence before the trial court is usually the viva voce evidence of the expert, and not the report the expert provided before trial: see Ontario Courtroom Procedure, at p. 1004-1005. There is an exception, which relates to the reports of practitioners under the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, the Drugless Practitioners Act, R.S.O. 1990, c. D.18 and other similar legislation in Canada, whose reports are governed by s. 52 of the Evidence Act, R.S.O. 1990, c. E.23: see Ontario Courtroom Procedure, at p. 1004-1005; and Iannarella v. Corbett, 2015 ONCA 110 (CanLII), 124 O.R. (3d) 523, at para. 131.

[20] In civil jury trials, when an expert witness is called to testify and after the witness has been qualified for that purpose, the party calling the witness usually provides a copy of the expert’s report to the trial judge. Often chunks of expert reports are effectively read into the record by the expert or are extensively paraphrased. Having a copy as an aide memoire enables the trial judge to follow along with the evidence, maintain good notes, and to deal expeditiously with questions of admissibility that might arise, such as whether the witness is impermissibly straying beyond the subject of the report. Having a copy also assists the trial judge in the preparation of the jury charge, and the reasons for decision.

[21] It is common practice for an expert report tendered by counsel to be marked as a lettered exhibit by the trial judge. That way the report will form part of the trial record, but will not be available to the jury in its deliberations: see Ontario Courtroom Procedure, at p. 1004; and Moore v. Getahun, 2015 ONCA 55 (CanLII), 124 O.R. (3d) 321, at para. 86, leave to appeal refused, [2015] S.C.C.A. No. 119.

[22] In non-jury civil trials expert reports are sometimes made numbered exhibits on consent. The practice in the Toronto Commercial List, for example, is for such reports to be made numbered exhibits.

[23] The practice of making expert reports numbered or lettered exhibits is essential to the construction of a complete trial record for appeal purposes. There should be no reluctance on the part of counsel or trial judges to doing so.

[24] I pause to note that the judicial act of accepting any document as a numbered exhibit under r. 52.04, or of converting a lettered exhibit into a numbered exhibit, has only a limited effect. Consider the example of a document that was marked for identification as a lettered exhibit. By later converting a lettered exhibit into a numbered exhibit, the trial judge is doing no more than asserting she is satisfied that the document is relevant to a fact in issue in the proceeding and has a sufficient measure of authenticity, usually provided by a witness, to warrant its inclusion in the trial record as an exhibit.

[25] I use the expression, “a measure of authenticity,” to indicate that there are degrees of authenticity. It is important for the trial judge and counsel to clarify the extent to which the authenticity of a particular document is accepted. Taking a cue from r. 51.01 of the Rules of Civil Procedure, and using its definition of “authenticity”, the trial judge and counsel must still consider the following questions:

(a) Was a document that is said to be an original printed, written, signed or executed as it purports to have been?

(b) Was a document that is said to be a copy a true copy of the original? and

(c) Where the document is a copy of a letter, telegram or telecommunication, was the original sent as it purports to have been sent and received by the person to whom it is addressed?

[26] The fact that a document is accepted as sufficiently authentic in some aspect of these particulars to warrant being made an exhibit under r. 52.04 does not mean that its ultimate authenticity or reliability has been decided. Any dispute about authenticity or reliability must be resolved on independent evidence and decided by the trier of fact. Nor does merely making a document a numbered exhibit mean that its hearsay content is admitted. I am quick to add that nothing prevents the parties from making such an admission or the trial judge from determining that the hearsay content is admissible where that is disputed.

[27] These concepts apply with necessary modifications to expert reports that are made numbered exhibits.

..........

[35] With respect, it should not be necessary for an appeal court to pick through the pages of a transcript in order to ferret out precisely what the trial judge had before her in documentary form at any particular moment in time. This is why marking expert reports as numbered or as lettered exhibits for identification is the preferred practice.

[36] In my view, every document or thing put to a witness or to the trial judge as a piece of evidence should be made a numbered or lettered exhibit. I would also add this: although trial judges have discretion in whether to mark as exhibits, out-of -court statements that are used solely to impeach the credibility of a witness, for the same reasons the best practice is to mark such statements as lettered exhibits for identification, if not as numbered exhibits: Ontario Courtroom Procedure, at p. 945-946; and R. v. Betker, 1997 CanLII 1902 (ON CA), [1997] O.J. No. 1578, 115 CCC (3d) 421 at 430 (C.A.).

(3) Trial Motion Materials

[37] I focus here on formal motions that are brought at trial with motion records, affidavits, and exhibits. In this case, I understand that the formal motion material was put to the trial judge on the motion seeking leave to have Ms. Urquhart provide expert evidence. I also understand that counsel had with him a copy of Ms. Urquhart’s report, which had been provided to opposing counsel, but he did not tender it to the trial judge as part of the motion material.

[38] In my view, the motion material ought to have formed part of the trial record. Further, it was incumbent on the trial judge to request a copy of the proffered expert’s report to be marked as a lettered exhibit for identification, so that this court would have access to it in the event the trial judge’s ruling was challenged on appeal.

[39] Finally, I make an observation, in passing, on document briefs, since similar themes arise with respect to them. It is common practice for the parties in civil actions to agree upon and tender a tabbed and organized document brief at the beginning of trial. This practice is convenient and allows for a reasonably orderly development of the evidence. Ontario Courtroom Procedure notes, at p. 333: “For most documents there are no real evidentiary issues. They should be filed on consent.”

[40] However, it is necessary for counsel to clarify to the court and to each other the extent to which the authenticity of each document in the proffered document brief is accepted, as noted at para. 25 of this decision. If, as is too often the case, counsel has not done so, it is the trial judge’s responsibility to get the requisite clarity when the documents are made exhibits, especially concerning a document’s hearsay content. This court is in no position to resolve such issues on appeal: see Kiskadee Ventures Limited v. 2164017 Ontario Ltd., 2016 ONCA 955 (CanLII), at para. 19.

[41] By following these general practices, confusion about the record at trial and on appeal can be avoided.


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