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Appeals - Exhibit Book. Wasylyk v. Simcoe (County)
In Wasylyk v. Simcoe (County) (Ont CA, 2023) the Court of Appeal considered an appeal record issue where the expert report was adopted by the expert, not entered as an exhibit but still considered by the court as an 'aide-memoire':[3] The moving parties apply to strike two documents included in Simcoe’s appeal book and compendium (“ABCO”) and the references to those documents contained in Simcoe’s factum for its appeal.
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[7] The reports were not, however, marked as numbered or lettered exhibits. The parties agreed then, and agree now, that the reports were only provided to the trial judge as aides memoire and were not themselves evidence. As this court stated in Moore v. Getahun, 2015 ONCA 55, 124 O.R. (3d) 321, at para. 86, leave to appeal refused, [2015] S.C.C.A. No. 119: “If an expert's report has not been entered into evidence as an exhibit, it has no evidentiary value, even if provided to the trial judge as an aide memoire.” Only Mr. Leggett’s oral testimony (including what he read into the record from the reports) constituted his evidence.
[8] The moving parties’ position is that since the reports are not evidence, they should not be in the ABCO. Their inclusion, and the extensive references to them in Simcoe’s factum, constitutes an attempt by Simcoe to enlarge the record on appeal, and serves to undermine the principle that, subject to the discretion of a panel to accept fresh evidence, for which no request has been made, an appeal is a review of the trial judgment based on the trial record and the court’s reasons.
[9] The moving parties submit that this case is different than 1162740 Ontario Ltd. v. Pingue, 2017 ONCA 52, 135 O.R. (3d) 792, where this court directed that certain expert reports that appeared to have been given to the trial judge, but were not marked as numbered or lettered exhibits, should be included in the appeal book. In Pingue, the appellant could not make their argument, that the trial judge erred in not permitting them to call the expert who had authored one of the reports, without the reports being before the appeal panel: at para. 13. Here, Simcoe does not contend that it cannot make its argument without referring to Mr. Leggett’s reports. Accordingly, the moving parties argue that it is not necessary for the expert reports to be included in the ABCO.
[10] I read Pingue as standing for a broader proposition. When an expert report is provided to a trial judge as an aide memoire, it should be made a lettered exhibit. A lettered exhibit, although it is not evidence, becomes part of the trial record for appeal purposes, as it allows the appeal panel to engage with and appreciate the argument with the benefit of the same material that the trial judge had. For the purpose of preparing the record for appeal, if the trial judge should have made the expert report a lettered exhibit, it will be treated as though it was: Pingue, at paras. 18-23, 35-36, 38.
[11] Following these admonitions, the trial judge ought to have marked Mr. Leggett’s reports as lettered exhibits. But even though this allows their inclusion in the appeal materials, care must be taken as to how this is done. In Pingue, the court stated, “The material must be clearly marked”: at para. 42. The purpose of doing so is to ensure they are not inadvertently presented as though they are evidence.
[12] I accept the submission of Simcoe’s counsel that they are not attempting to portray or use the reports as evidence. They maintain that the reports provide background and context for their argument which is solely based on what actually is in evidence. Nonetheless, the description of the reports in the ABCO does not indicate that the reports were provided to the trial judge as aides memoire and that they are not evidence. There is nothing in the way they have been described or included in the ABCO that would differentiate them from documents that were evidence. Nor do the references to the reports in Simcoe’s factum explain the basis on which they were given to the trial judge and their non-evidentiary status. In my view, these kinds of explanatory statements are necessary. I express no view about whether, even with these statements, Simcoe’s reliance on the reports to buttress its misapprehension of evidence argument is proper. That is for the panel hearing the appeal to decide. The point is that the non-evidentiary status of the reports should be clearly articulated so that the argument is presented, responded to, and evaluated, through that lens.
[13] For these reasons, the motion is allowed in part. Rather than striking the reports and references without leave to amend – the moving parties’ primary request – I direct that Simcoe amend the description of the reports in the ABCO and the references to them in its factum, within 10 days of the release of these reasons, to include explanatory statements in accordance with para. 12 above.
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