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Evidence - Expert Opinion - Expert versus Technical. Smith v. Real Estate Council of Ontario
In Smith v. Real Estate Council of Ontario (Div Court, 2024) the Divisional Court dismissed a JR challenging a RECO (Real Estate Council of Ontario) Appeal Panel disciplinary decision. These review cases are few in the courts.
Here the court illustrates the difference between 'expert' and 'technical' (fact) witnesses, while dismissing an appeal argument that a witness may testify as a fact witness after their similar expert witness testimony was denied by the tribunal:D. Exclusion of the fact witness
[31] When the Discipline Panel refused to allow Ms. Smith to call Mr. Metherall as an expert, her counsel sought to call him as a fact witness to testify about what he would have done to determine the taxes and local improvement charges in the circumstances in which Ms. Smith found herself. The Discipline Panel ruled that the proposed fact evidence from Mr. Metherall was inadmissible because it was irrelevant. The Discipline Panel also found that Ms. Smith’s counsel was trying to circumvent the ruling on the expert evidence by recasting Mr. Metherall’s opinion evidence as fact.
[32] The Appeal Panel upheld the Discipline Panel’s decision to exclude Mr. Metherall as a fact witness as reasonable. The Appeal Panel agreed that even as a fact witness, Mr. Metherall would be giving opinion evidence about what he would have done in a similar circumstance. The Appeal Panel found that it was within the Discipline Panel’s discretion to exclude Mr. Metherall’s evidence.
[33] On this judicial review application, Ms. Smith argued the Discipline Panel improperly excluded Mr. Metherall’s evidence because he did not participate in the transaction in question. Ms. Smith also argued it was unfair of the Discipline Panel to exclude Mr. Metherall’s evidence when the prosecutor was permitted to call a Compliance Officer to testify about industry standards.
[34] In my view, the Discipline Panel’s decision to prohibit Mr. Metherall as a fact witness was reasonable. What Mr. Metherall (or any other realtor) would have done in Ms. Smith’s circumstances is not relevant to the narrow issue of whether the listing was misleading and it was reasonable for the Discipline Panel to find that his evidence was irrelevant. I have already found that it was not unfair to allow the Council to adduce evidence from the Compliance Officer about how Ms. Smith could have clearly communicated in the listing that the tax information was inaccurate. . Canada (Attorney General) v. Mosaic Forest Management Corporation
In Canada (Attorney General) v. Mosaic Forest Management Corporation (Fed CA, 2022) the Federal Court of Appeal held that technical evidence may not need to be qualified as from expert, since it is not opinion evidence (and thus doesn't require the expert exception for opinion evidence):[19] Turning to the paragraphs struck out from the affidavit of Mr. Lee, these paragraphs are not opinion evidence at all but rather merely attach and provide a summary of data drawn from a report from Statistics Canada that is attached to Mr. Lee’s affidavit as an exhibit. No opinion whatsoever is proffered in the impugned paragraphs. As in The Owners, Strata Plan NES 97 v. Timberline Developments Ltd., 2011 BCCA 421 at paras. 45–46, 24 B.C.L.R. (5th) 234, and in R. v. Ajise, 2018 ONCA 494 at para. 23, 428 D.L.R. (4th) 586, aff’d on other grounds, 2018 SCC 51, [2018] 3 S.C.R. 301, upon which Mosaic relies, compilations or explanations of data drawn from exhibits—like those contained in the impugned paragraphs of Mr. Lee’s affidavit—do not constitute opinion evidence.
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