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Civil Litigation - Evidence at Trial [R53]

. Soave v. Stahle Construction Inc.

In Soave v. Stahle Construction Inc. (Ont CA, 2023) the Court of Appeal considered an issue involving R30.08(1) ['Failure to Disclose or Produce Document'] and R53.08(1) ['Evidence Admissible only with Leave']:
[13] Rule 30.08(1)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that, where a party fails to disclose a document in its affidavit of documents and the document is favourable to that party, the document can only be introduced at trial with leave of the court. Rule 53.08(1) sets out the test for granting leave in such circumstances, and it requires that the court be satisfied that (a) there is a reasonable explanation for the delay and (b) the admission of the document (i) will not cause prejudice that cannot be compensated by costs or an adjournment and that (ii) it will not cause undue delay of the trial.

[14] This court owes significant deference to the trial judge’s exercise of her discretion in deciding whether to admit the Great West Life policy: 1162740 Ontario Limited v. Pingue, 2017 ONCA 583, at para. 13.

[15] While the trial judge did not explicitly refer to the test under r. 53.08(1) of the Rules of Civil Procedure, it is evident that she considered the relevant factors and that her ruling was supported by the record before her. Specifically, she considered the issue of prejudice when she referred to trial fairness and Stahle’s failure to disclose that it intended to rely on the Great West Life policy up to the time of Mr. Soave’s cross-examination.
. Rosehaven Homes Limited v. Aluko

In Rosehaven Homes Limited v. Aluko (Ont CA, 2022) the Court of Appeal drew a distinction between the requirements of admitting an expert report in a summary judgment motion, and admitting one at trial (under R53.03):
[8] First, the appellants argue that the motion judge erred in admitting and relying on Rosehaven’s rule 53.03 litigation expert report (“Rosehaven’s expert report”) concerning the value of the Property. Rosehaven’s expert report assessed the Property’s value at $1,510,000.00 as of April 13, 2017 and at $1,050,000.00 as of June 4, 2019 (the date of the agreement of purchase and sale under which the Property was resold). In his reasons, the motion judge observed that the appellants did not provide a litigation expert report. Rather, Mr. Aluko attached as an exhibit to his affidavit filed on the summary judgment motion a draft report obtained by one of the appellants’ prospective lenders (the “Draft Report”), which was clearly marked “Draft Copy – Not To Be Relied Upon”.

[9] Beginning with the admissibility issue, the appellants argue that rule 53.03 governs the exchange of expert reports prepared for trial. Relying on Karami v. Kovari, 2019 ONSC 637, at para. 29, they say the motion judge erred in admitting Rosehaven’s expert report on a summary judgment motion. In addition, the appellants point out that the author of Rosehaven’s expert report failed to sign a Form 53 Acknowledgment of Expert’s Duty and failed to enumerate the instructions received from Rosehaven concerning preparation of the report. The appellants say these are mandatory requirements prescribed by rule 53.03(2.1) to support the admissibility of a litigation expert’s report.

[10] We are not persuaded that the motion judge erred in admitting Rosehaven’s expert report as evidence on the summary judgment motion. Rosehaven’s expert report was appended as an exhibit to an affidavit sworn by one of its co-authors. The deponent stated: “I confirm that I adopt and agree with the contents of the Reports[2] as drafted.”

[11] The fact that rule 53.03 sets out rules for the exchange of expert reports for the purposes of a trial does not undermine the ability of a party to introduce expert evidence on a motion, provided that the rules relating to the admissibility of evidence, in general, and expert evidence, in particular, are respected. This case is distinguishable from Karami, because, in that case, the expert’s report was not verified by an affidavit from the expert. Moreover, the motion judge in Karami was not satisfied that the expert had been properly qualified: Karami, at paras. 27 and 29.
. McDonald v. Toronto-Dominion Bank

In McDonald v. Toronto-Dominion Bank (Ont CA, 2022) the Court of Appeal considers application of R53.07 ['Calling Adverse Party as Witness']:
Issue #3: Did the trial judge err in interpreting and applying r. 53.07 of the Rules of Civil Procedure, resulting in trial unfairness?

[125] The Joint Liquidators take issue with a procedural ruling made at the close of the Joint Liquidators’ case (“the second ruling”). The trial judge permitted TD Bank to recall a number of witnesses to testify, despite the fact that they had already been cross-examined by the Joint Liquidators under r. 53.07 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which addresses calling adverse parties as witnesses. The Joint Liquidators say that the trial judge’s second ruling contradicted her earlier ruling under r. 53.07 (the “first ruling”) and that her second ruling was based on an incorrect interpretation of r. 53.07. The result, they say, was to permit an unfair trial process.

[126] TD Bank submits that the second ruling was correct and caused no prejudice to the Joint Liquidators.

[127] As I will explain, I do not accept that the trial judge’s second ruling was incorrect or that it resulted in trial unfairness.

(a) Background

[128] To understand the Joint Liquidators’ objection to the second ruling, it is necessary to understand the scope of the first ruling.

The First Ruling

[129] Before any witnesses were called at trial, the Joint Liquidators sought an undertaking from TD Bank to call ten of its current and former employees. TD Bank would not provide the undertaking, and so the Joint Liquidators sought to summon and cross-examine those witnesses pursuant to r. 53.07.

[130] Where a witness is summoned under r. 53.07, they may be (1) cross-examined by the party who called them or by any other party who is adverse in interest (r. 53.07(5)), and (2) re-examined by any other party who is not entitled to cross-examine under r. 53.07(5) (r. 53.07(6)).

[131] TD Bank was opposed to the Joint Liquidators cross-examining any former employees. It argued that r. 53.07 only applies to current employees and so if the Joint Liquidators wished to examine former employees as witnesses at trial, they were required to summon and examine those witnesses in chief.

[132] The trial judge rejected TD Bank’s position. She found that the rule applied to former employees. She concluded that it was in the interests of justice to permit the Joint Liquidators to cross-examine the witnesses pursuant to r. 53.07 and to allow TD Bank to re-examine them.

[133] The trial judge also rejected TD Bank’s secondary argument that if the witnesses were subject to cross-examination pursuant to r. 53.07, the bank should be permitted to conduct additional examination of them, not limited to re-examination. In rejecting that argument, the trial judge made the following comment, which the Joint Liquidators rely upon to argue that the second procedural ruling was inconsistent with the first:
If TD Bank had wanted to control the presentation of evidence from those witnesses, it could have undertaken to call them as TD Bank witnesses, but it chose not to do so. TD Bank may, therefore, conduct re-examination of the witnesses only.
The Second Ruling

[134] Once the Joint Liquidators closed their case, TD Bank sought to recall three of the witnesses who had already testified pursuant to the first procedural ruling. I refer to these witnesses as the “recall witnesses.”

[135] The Joint Liquidators opposed TD Bank’s request to have the recall witnesses testify. They maintained that the trial judge’s first procedural ruling precluded this approach and that permitting the recall witnesses to testify again would “eviscerate the effect of Rule 53.07” and “result in irreparable prejudice” to the Joint Liquidators. In addition, the Joint Liquidators said that once TD Bank decided not to undertake to call any of its employees, it “relinquished the ability to examine them in-chief and control the presentation of their evidence to the Court.”

[136] In response, TD Bank argued that r. 53.07 did not preclude them from recalling the witnesses. And, the failure to permit them to testify further would leave a distorted factual picture for the trial judge, since two of the recall witnesses were examined for less than 30 minutes each and only on minor points, and the third recall witness had not been taken to key documents.

[137] The trial judge concluded that there is “nothing” in r. 53.07 that “states that an adverse party who does not give an undertaking to call a witness forfeits the right to call that witness” after that witness’ initial testimony. The trial judge went on:
According to the operation of the rule, the consequences of not giving the undertaking are that the opposing party may summons the witness and may cross-examine the witness, a right that the opposing party would not otherwise have for its own witness. The rule does not state that the adverse party must give the undertaking or lose the right to subsequently call the witness… If the rule had the consequence of also prohibiting the adverse party from calling the witness, it would have stated so explicitly.
[138] Ultimately, the trial judge decided that she would not resolve “all theoretical abuses of the rule” and tailored her ruling to provide a just outcome in this case. That outcome was to allow the recall of the witnesses while at the same time directing TD Bank not to duplicate evidence that the recall witnesses had previously given. This arrangement, she concluded, would mitigate any prejudice arising from the recall and allow the court to have a complete evidentiary record.

(b) Discussion

[139] The Joint Liquidators submit that the trial judge’s second ruling “eviscerated both her first procedural ruling… on which the Joint Liquidators’ trial strategy was based, and rule 53.07.” In particular, they point to the following errors:
▪ She gave r. 53.07 a “novel and legally incorrect interpretation”, one that led to prejudice to the Joint Liquidators, which could not be mitigated by cross-examination or otherwise.

▪ She unfairly reversed her first ruling, where she had said that TD Bank could have “undertaken to call [the witnesses] … but it chose not to do so” and therefore, TD Bank was confined to “re-examination of the witnesses only”.
[140] In the Joint Liquidators’ submission, the testimony resulting from the second ruling was inadmissible, as were parts of the opinion evidence proffered by Ms. Joyce. Accordingly, the trial judge erred in relying on such testimony in dismissing the Joint Liquidators’ claims.

[141] I reject this ground of appeal for several reasons.

[142] First, there is nothing in the wording of r. 53.07 that precludes a party from recalling a witness after refusing to undertake to call that witness in the first place. And, notably, r. 53.01(3) provides that “[t]he trial judge may at any time direct that a witness be recalled for further examination.” That is what happened in this case.

[143] Second, pursuant to r. 1.04(1), r. 53.07 is to be construed liberally in order to secure “the just, most expeditious and least expensive determination” of every proceeding based on its merits. To adopt the Joint Liquidators’ interpretation would, as illustrated by this case, be at odds with r. 1.04(1), as it would undermine the truth-seeking function of the trial. As the trial judge noted, the recall witnesses were “key witnesses”: their evidence was “critical” to the factual findings she had to make. It was “important to receive their oral evidence… to make a just determination.”

[144] Third, contrary to the Joint Liquidators’ submission, the second ruling does not render r. 53.07 “effectively meaningless”. Their submission ignores the purpose of the rule: it permits a plaintiff to call as a witness a person opposed in interest but whose evidence is critical to the plaintiff’s case without being limited to direct examination, which is unlikely to be an effective way to prove a party’s case in the circumstances: Peter Sankoff, Law of Witnesses and Evidence in Canada, at para 11:31; see also Granitile Inc. v. Canada (1998), 41 C.L.R. (2d) 115 (Ont. Gen. Div.), at para. 23. Here, the rule fulfilled its clear purpose: it allowed the Joint Liquidators to elicit evidence through cross-examination from adverse witnesses in building their case.

[145] Fourth, the trial judge’s interpretation prevents strategic behaviour that could deprive the finder of fact of relevant evidence. For instance, if the Joint Liquidators were correct in their interpretation of r. 53.07, then there would be nothing to stop a plaintiff from strategically summoning a witness, asking a single question, and then having that witness placed on, as the trial judge put it, “ice”. Given the rules of re-examination, tied as they are to what is elicited during examination in chief, this interpretation would not only prevent the witness from giving their evidence, but it would deprive the finder of fact of that evidence.

[146] Fifth, contrary to the Joint Liquidators’ submission, the trial judge’s two procedural rulings are reconcilable. While the trial judge initially refused to allow TD Bank to “conduct additional examination of [the adverse] witnesses not limited to re-examination”, that was a ruling that was applicable to the Joint Liquidators’ case in chief. That ruling did not preclude TD Bank from seeking permission to recall those same witnesses when it turned out that the evidence elicited from them during the case in chief did not touch on areas necessary to the defence and to provide the trier of fact with critical facts.

[147] In the end, the trial judge navigated a carefully balanced path. She tailored her ruling to limit the examination of the recall witnesses to areas not previously covered in their testimony. She also provided the Joint Liquidators with the right to exercise full cross-examination and to call reply evidence should they choose to do so. They exercised the first right and chose not to exercise the second. There was nothing unfair or prejudicial about this procedure.


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