In Arvanitopoulos v. Wawanesa Mutual Insurance Co. (Div Court, 2024) the Divisional Court dismissed a JR against an IA s.128 umpire "appraisal hearing and outcome", here on procedural grounds. Here the court comments on 'expert' affidavits:
Improper Affidavits with Opinion Evidence
[66] The insurer has delivered affidavits of two lawyers and a public appraiser all very experienced in the s. 128 appraisal process. None of these witnesses was involved in the appraisal in this case. They offer no first-hand evidence about the proceeding from their own knowledge or observations. Rather they all provide opinions about the purpose and process of appraisal proceedings generally. They also offer opinions on the conduct of this appraisal based on what they have been told about it.
[67] None of these three affidavits is admissible. I have not relied on anything said in them. They are not delivered as expert witness evidence supported by appropriate certification of independence by the witnesses. I do not need to assess the need for expert evidence in this case in the absence of any effort by the respondent to put the witnesses forward as expert witnesses: see: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9.
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