Citation: 2014 TCC 35
Date: 20140131
Docket: 2011-3519(IT)G
BETWEEN:
ACHIM BEKESINSKI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
RULING ON APPELLANT’S PRELIMINARY OBJECTION
TO EXPERT WITNESS REPORT TENDERED BY THE
RESPONDENT
Campbell J.
Introduction:
[1]
At the end of the third
day of the hearing of this appeal, Appellant Counsel raised an objection and
sought this Court’s ruling on whether the Expert Report (“the Report”), being
tendered by the Respondent, should be excluded.
[2]
The sole issue in this
appeal is whether the Appellant is liable, as the director of D.M. Edward
Cartage Ltd. (“the Company”), for unremitted amounts of taxes, Employment
Insurance premiums and Canada Pension Plan contributions owed by the Company.
[3]
The answer to this issue
is dependant upon whether the Appellant actually signed a notice of resignation
on July 20, 2006, or whether, as the Respondent contends, he signed it on a
later date and, consequently, the notice of resignation has been back-dated. To
support its position, the Respondent sought to have its witness, Annie Vallière,
qualified as an expert in ink dating.
[4]
Following a voire
dire, I rendered my reasons orally and qualified Ms. Vallière, a
Canada Border Services forensic document chemist, as an expert in this
capacity. Immediately following this qualification, Appellant Counsel raised
his preliminary objection respecting the tendering of Ms. Vallière’s Report. The
Appellant submitted that the Report should be excluded because it does not meet
the requirements of Rule 145 of the Tax Court of Canada Rules (General
Procedure) (the “Rules”) and, in addition, was without evidentiary
foundation. I requested that the parties provide written submissions respecting
the scope, purpose and application of Rule 145 and, more specifically, subrule
145(2)(b) and whether the Report meets the requirements of the Rules.
Position of the Parties:
[5]
Appellant Counsel’s
argument focussed not only on Rule 145 but also on what he termed the “no
foundation” evidentiary objection. According to the Appellant’s Written Submissions,
Rule 145 “sets out the procedural baselines in which an expert report may be
adduced: i.e. procedural guidelines.” (Appellant’s Written Submissions, para
7). The Appellant also argued that there is no evidentiary foundation
established for the expert opinion evidence (Appellant’s Written Submissions,
para 23) because the Report contains only a bare conclusion together with a brief
explanation of the process employed. More specifically, the Appellant argued
that the Report lacks evidentiary foundation because it is missing the
following items upon which Ms. Vallière’s opinion is based: the data collected,
the quantitative analysis derived from the data and the ratios based on the
quantitative analysis.
[6]
The Respondent submits
that “[o]n a clear and plain wording of subrule 145(2)(b), Ms. Vallière’s
report meets the requirements” (Respondent’s Written Submissions, para 16) and,
therefore, the Rules do not require that the “scientific data relied on
to reach her conclusion” be included in the Report (Respondent’s Written
Submissions, para 7).
[7]
According to the
Respondent’s argument, the Report satisfies subrule 145(2)(b) in the
following manner:
10. While
her report may be succinct, it holds all of the information required by subrule
145(2)(b): what she was asked to do (she was asked whether the document at
issue was signed at the time it was purported to have been signed, the
methodology employed to arrive at her opinion and Ms. Vallière’s opinion on the
issue).
(Respondent’s Written Submissions, para 10).
[8]
The Respondent noted,
at paragraph 11 of its Written Submissions, that although “[t]he scope and
purpose of Rule 145 have not been judicially considered,” the principles
underlying the rules on expert evidence can be gleaned from similar legislation
in other jurisdictions. Specifically, the Respondent noted that the Tax Court Rules,
respecting expert evidence, do not have the same explicit requirements set out
in Rule 53.03 of the Ontario Rules of Civil Procedure. The current
version, Rule 53.03, mandates that an expert statement include the assumptions
and the basis for the expert’s opinion, along with the research and the
documents relied upon in formulating the opinion (Respondent’s Written
Submissions, paras 12 and 13). However, Rule 145 is less onerous as it does
not contain the same requirements and merely “mandates that the expert provide
an (sic) ‘full statement of the proposed evidence in chief’.”
(Respondent’s Written Submissions, para 15).
Analysis:
[9]
Rule 145 states that,
unless this Court otherwise orders, an expert will not be permitted to testify
at a hearing unless “a full statement of the proposed evidence in chief of the
expert” has been set out in the expert’s report. This limits the expert’s evidence
in chief to the content of the report. The main question is, therefore, whether
Rule 145 requires that the data, quantitative analysis and ratios, referenced
by the Appellant as formulating the foundation of Ms. Vallière’s expert
opinion, be specifically included in the Report.
[10]
Rule 145 of the Rules
states:
145. (1) In
this section, “affidavit” includes,
(a) a solemn declaration made under section 41 of the
Canada Evidence Act,
(b) a statement in writing signed by the proposed
witness and accompanied by a certificate of counsel that counsel is satisfied
that it represents evidence that the proposed witness is prepared to give in
the matter, or
(c) a statement in writing in any other form
authorized by direction of the Court in a particular case and for special
reasons.
(2) Unless otherwise directed by the Court, no evidence in
chief of an expert witness shall be received at the hearing in respect of an
issue unless,
(a) the issue has been defined by the pleadings or by
written agreement of the parties stating the issues,
(b) a full statement of the proposed evidence in
chief of the witness has been set out in an affidavit, the original of which
has been filed and a copy of which has been served on all other parties, not
less than thirty days before the commencement of the hearing; and
(c) the witness is available at the hearing for
cross-examination.
(3) Unless otherwise directed by the Court, no evidence of
an expert witness shall be led in rebuttal of any evidence tendered in writing
under paragraph (2)(b) unless the rebuttal evidence has been reduced to
writing in accordance with this section and the original filed and a copy
served on all the other parties not less that fifteen days before the
commencement of the hearing.
(4) Subject to compliance with subsection (2), evidence in
chief of an expert witness may be given at the hearing by,
(a) reading the whole or part of the affidavit into
evidence by the witness, unless the Court, with the consent of the parties,
permits it to be taken as read, and
(b) if the party calling the witness so elects, the
verbal testimony of the witness,
(i) explaining
or demonstrating what is in the affidavit or the part that has been given in
evidence, and
(ii) in
respect of other matters by special leave of the Court, upon such terms as may
be just.
(5) A witness shall not be cross-examined before the hearing
on an affidavit filed under subsection (2) without leave of the Court, and if
such leave is granted, the witness shall not be cross-examined at the hearing
without leave of the Court but the witness may, with leave of the Court, be
produced for re-examination and shall be produced for examination by the Court,
if the Court so requires.
(6) An affidavit filed under subsection (2) shall not become
part of the evidence at the hearing unless given in evidence under subsection
(4).
[11]
There are proposed
amendments pending to Rule 145, which will govern expert witnesses and the
admissibility of their evidence in this Court. The proposed new Rule, in
contrast to the present Rule, enumerates specific requirements in respect to
expert report content. The proposed new Rule accomplishes this by adding, as a
Schedule, a “Code of Conduct for Expert Witnesses”, which will enumerate the specific
content required to be included in an expert report. That content shall include
the reasons for each opinion, the facts and assumptions upon which the opinion
is based, literature or other materials which support the expert opinion and a
summary of the methodology, including tests and investigations relied upon.
[12]
The proposed amendments
to Rule 145 mirror the current Federal Courts Rules 52.1 to 52.6 and 279
to 280. The Federal Court’s previous Rules, on admissibility and tendering of
expert evidence, were similar to the present Tax Court Rule 145. Under those
prior Rules, the Federal Court of Appeal in Leithiser v Pengo Hydro-Pull of
Canada Ltd., [1974] 2 FC 954 (FCA), at para 15, explained that the purpose
of expert evidence rules was to reduce the length and expense of trials
involving experts and to encourage settlement in the pre-trial process. The
Court further noted that this purpose is undermined when counsel withhold
information in the expert affidavit and attempt to introduce it at trial. The
Court held that, while such practice may comply with the letter of the law, it
will not be consistent with the purpose of the Rule. Since the Federal Court’s
prior Rules governing experts were similar to the present Tax Court Rules,
these remarks apply to the purpose behind the present Rule 145.
[13]
The underlying purpose
of Rule 145 is one of procedural fairness designated to avoid ‘trial by
ambush’. This point was canvassed in Mathew et al v The Queen, 2001 DTC
742, where Justice Dussault stated, at para 35:
…
Secondly, notice was given pursuant to section 145 of the Tax Court of Canada Rules (General Procedure) that the evidence Mr. Taylor was going to give was that
contained in his report. Based on his evaluation of the type of evidence
contained in the report, counsel for the Appellants proceeded to trial on the
assumption that the report could not be admitted in evidence and that a
rebuttal opinion was not necessary in the circumstances. After nine days of
trial we are at a point where counsel for the Respondent is asking the Court to
at least accept Mr. Taylor's testimony on limited matters within his area
of expertise. In my opinion, procedural fairness embodied in section 145 of
the Rules requires that the report filed and served represent the evidence that
the expert is prepared to give in the matter. The 30 days' notice ensures that
the other party can prepare his case accordingly. (Emphasis added)
[14]
The Court in Mathew
excluded the expert report because, among other reasons, it failed to include
the assumptions upon which the expert had formulated the opinion. The Court
concluded that the potential prejudice that might arise as a result of such
failure outweighed the necessity of admitting the report into evidence.
[15]
In Witt v The Queen,
2008 DTC 4322, Justice Bowie rejected the expert opinion evidence as it did not
meet the requirement of necessity set out by the Supreme Court of Canada in The
Queen v Mohan, [1994] 2 S.C.R. 9, at pages 21 to 25. Justice Bowie went on to
conclude, at paragraph 9, that, even if he were to admit the expert opinion, he
would not have found it useful because:
…
His Rule 145 affidavit is 6½ pages long. The first 6 pages are no more than a
recitation of facts that are found in the Agreed Facts. The last seven lines
express his opinion on the very question that I have to decide, consisting
simply of a bald conclusion, devoid of any significant analysis or reasoning.
The opinion evidence, which was marked as Exhibit A-2 at the trial, is ruled
inadmissible. …
[16]
With the exception of
the two Tax Court cases cited, there is little caselaw that is useful in
disposing of the preliminary objection. However, a comparison of this Court’s
Rule 145 to the comparable provisions under the Ontario and British Columbia
Civil Procedure Rules is useful. The existing Ontario Rules are the product of
considerable changes stemming from recommendations contained in the Civil
Justice Reform Project: Summary of Findings and Recommendations, Hon. Coulter
A. Osborne, Q.C. (November 2007) at pages 80 to 84, which suggested greater
regulation of the content of expert reports. Consequently, the current Rule
53.03(2.1) of the Ontario Rules of Civil Procedure (“the New Ontario
Rules”) requires that an expert report include specifics such as the reasons
for the expert opinion, description of assumptions underlying the opinion,
research conducted and documents relied upon. The provision governing expert
evidence prior to the amendments (the “Old Ontario Rules”) which preceded the
current Rule 53.03(2.1) required an expert to set out his/her name, address and
qualifications, the opinion and the “substance of his or her proposed
testimony.” The wording contained in the Old Ontario Rules is comparable to
this Court’s current Rule 145, which references “a full statement of the
proposed evidence in chief.”
[17]
In Transmetro
Properties Ltd. v Lockyer Bros. Ltd., [1985] OJ No. 1671, the Ontario Supreme
Court - High Court of Justice, at paragraph 19, held that the “substance” of
the proposed testimony included supporting documents, calculations and other
engineering background materials relied upon by the expert in formulating the
opinion. Consequently, the Court held that the word “substance”, under the Old
Ontario Rules, required that more than a mere conclusion be included in a
report. At paragraph 19 of these reasons, the Court considered the requirements
under Rule 31.06(3) and stated:
I
also observed that r. 31.06(3) uses the words:
“… disclosure of the findings, opinions and
conclusions …”
It
is my view that those words can only bear the interpretation that before one
concludes, one must find; before one opinionates, one must find and
therefore it is essential that the defendant is aware of the findings which I
interpret should be the documents, the calculations and the engineering data
upon which the opinion and the conclusions were drawn. (Emphasis added)
[18]
The Court in Marchand
(Litigation Guardian of) v Public General Hospital Society of Chatham,
[2000] OJ No. 4428 (ONCA), upheld the Trial Judge’s finding and refused to
allow an expert to testify on an issue that had not been included in the expert
report. After reviewing the jurisprudence, the Court, at paragraph 38, made the
following comments respecting the purpose of the Rule:
… these cases indicate that the "substance"
requirement of rule 53.03(1) must be determined in light of the purpose of the
rule, which is to facilitate orderly trial preparation by providing opposing
parties with adequate notice of opinion evidence to be adduced at trial.
Accordingly, an expert report cannot merely state a conclusion. The report must
set out the expert's opinion, and the basis for that opinion. Further, while
testifying, an expert may explain and amplify what is in his or her report but
only on matters that are "latent in" or "touched on" by the
report. An expert may not testify about matters that open up a new field not
mentioned in the report. The trial judge must be afforded a certain amount of
discretion in applying rule 53.03 with a view to ensuring that a party is not
unfairly taken by surprise by expert evidence on a point that would not have
been anticipated from a reading of an expert's report.
[19]
Rule 11-6 of the British Columbia Supreme Court Rules (the “New BC Rules”) requires that an
expert report set out the reasons underlying the opinion, a description of the
factual assumptions, research conducted and documents relied upon. This
provision contains essentially the same requirements as the present Rule 53.03
of the New Ontario Rules. The British Columbia Supreme Court Rules were
amended on July 1, 2010. Under the former Rules (the “Old BC Rules”), expert
evidence was governed by Rule 40A, which stated that “a written statement
setting out the opinion of an expert is admissible” provided that the statement
sets out or is accompanied by a supplementary statement that includes the name
and qualifications of the expert and the “facts and assumptions on which the
opinion is based.”
[20]
British Columbia courts
have held that the Rules respecting expert evidence are “not simply a matter of
form” and if an expert report does not provide the required information, it may
be contrary to the object of the Rules, namely, a just, speedy and inexpensive
determination of the proceedings on its merits (Haughian v Jiwa, 2011
BCSC 1632 at para 33). Although the Court’s comments address the New BC Rules, I
believe that they are equally applicable to the objection before me and the
purpose underlying Rule 145. Although the Court in Haughian was
encouraged to exercise its discretion and admit the report despite its non‑compliance
with Rule 11-6, it refused to do so on the basis that the opposing party is
entitled to a report that complies with the Rules in order to properly prepare
cross-examination of the expert and to decide whether to obtain a rebuttal
report.
[21]
The decision in Mazur
v Lucas, [2010] BCJ No 2087 (BCCA), involved a question of the
admissibility of hearsay evidence contained in an expert report. Although not
directly on point, the Court’s comments on the purpose of expert evidence
rules, under both Rule 40A of the Old BC Rules and Rule 11-6 of the New BC
Rules, are pertinent. At paragraph 42, the Court compares these two Rules but
states that the general purpose behind both Rules remains the same:
New Rule 11-6 expands on what an expert was required to
state under old Rule 40A, but does not alter the general principle that it is
essential for the trier of fact to know the basis of an expert opinion so that
the opinion can be evaluated. The Rule has a dual purpose. The second purpose
is to allow the opposing party to know the basis of the expert's opinion so
that they or their counsel can properly prepare for, and conduct,
cross-examination of the expert, and if appropriate, secure a responsive expert
opinion. Thus, the result of these reasons would be the same if this case had
arisen under the new Rules. There is nothing in these Rules touching directly
on the question of the admissibility of hearsay evidence in expert reports
[22]
In Goerzen v Sjolie,
[1997] BCJ No. 44 (BCCA), also decided under Rule 40A of the Old BC Rules,
the Court dealt with two grounds of appeal from the Trial Judge’s decision
which excluded material portions of the expert report that were unsupported by
facts and assumptions. It was argued that the expert report, together with the
expert’s working files, which were produced at trial, satisfied Rule 40A. The
Appellant took the further position that the usual practice was that working
papers do not accompany reports but are made available for inspection and
copying following delivery of the report and prior to trial. The Court rejected
this reasoning at paragraphs 15 and 16:
I am unable to agree that the precision of clause (b) of
subrule (5) should be modified by a subjective definition and wholly dependent
on the author's views of what the other party should know. …
It is incontestable that working papers are often
voluminous, repetitive and sometimes unintelligible to other than a trained
eye. But this does not relieve a party whose expert witness delivers a report
purporting to conform in purpose and content to subrule (5) from ensuring that
all the facts and assumptions on which the opinion is based are included. …
[23]
During the voire
dire, Ms. Vallière admitted on cross-examination that the opinion presented
in her Report was based upon data she collected, quantitative analysis
conducted on the data collected and then drawing consequent ratios. She agreed
with Appellant Counsel that her report did not contain any of the methodology
and testing that supported her stated opinion. She pointed out that these
facts, mathematical testing and underlying assumptions were contained in her
work notes but that it had not been her decision to withhold this information
and analysis from the Report. At page 181 of the transcript, she stated the
following in response to Appellant Counsel’s questions:
A. It is not my decision to release it. Counsel knew about
it. If she didn’t release it, it’s not my decision.
Except for these references during the voire dire,
the support for her stated opinion is not otherwise before this Court, either
in the evidence as a schedule attached to the Report or as separately submitted
by Respondent Counsel prior to, during or subsequent to the hearing.
[24]
Rule 145(2)(b)
establishes the boundaries respecting evidence in chief of an expert and it
limits that evidence to “a full statement of the proposed evidence in chief of
the witness” as set out in an affidavit and filed and served on all parties at
least 30 days before the date scheduled for the hearing. This is a mandatory
requirement unless otherwise directed by the Court. Appellant Counsel argued
that the Report does not comply with Rule 145 because it simply recites an
opinion without the data, quantitative analysis and ratios which, by
Ms. Vallière’s own admission, are absent from the Report. Respondent
Counsel argued that, on a “clear and plain wording” of Rule 145, the Report,
although succinct, contains all the necessary information, including the task
Ms. Vallière was required to complete, a description of the general
methodology and her opinion.
[25]
With the exception of
the Mathew and Witt decisions, I have been unable to locate any
other jurisprudence where the scope and purpose of Rule 145 has been considered
by this Court. The caselaw from the Ontario and British Columbia jurisdictions,
on their respective expert report provisions, assists with the principles
underlying the Tax Court Rules on expert evidence. Both Ontario and British Columbia have amended provisions which list specific information to
be included in an expert report. The Tax Court is in the process of amending
its Rule in a similar fashion. However, the wording under the Old Ontario Rules
and the Old BC Rules is similar to the present Rule 145 of this Court.
[26]
So what does the phrase,
contained in our current Rule 145, “a full statement of the proposed evidence
in chief,” mean as it applies to expert reports? According to the Oxford
English Dictionary, 2nd ed., the word “statement”, which is used as a noun
in Rule 145, means:
3.
a. A written or oral communication setting forth facts, arguments, demands, or
the like.
Black’s Law Dictionary, 9th ed., defines “statement” as:
2.
A formal and exact presentation of facts.
Rule 145 further employs the adjective “full” to
describe the noun “statement”. Collins English Dictionary, http://www.collinsdictionary.com,
defines “full”, when used as an adjective, as:
5. (premonimal)
with no part lacking; complete – a full dozen
Merriam-Webster Dictionary, http://www.merriam-webster.com, defines “full” as:
d: not lacking in any essential: PERFECT <in full control of
your senses>
[27]
By definition, “full
statement” implies that exact facts and arguments, complete in extent and every
particular, respecting the expert’s proposed evidence in chief shall be set out
in the affidavit. This means that Ms. Vallière’s Report, which, by her own
admission in the voire dire, does not contain the underlying data
collected, quantitative analysis employed and the ratios calculated to support
her stated opinion, is deficient as it does not contain a full statement of her
proposed evidence in chief as mandated by Rule 145. As noted in the
jurisprudence from other jurisdictions, such a deficiency compromises the
Appellant’s ability to prepare for cross-examination and to properly instruct
its own expert witnesses. This leaves the Appellant at a distinct disadvantage
and, as caselaw from other jurisdictions has noted, is not consistent with the
spirit and purpose of similarly worded expert evidence rules. These rules exist
to facilitate trial preparation and to decrease time and expense in matters
involving experts. This is the common theme of the expert evidence rules across
jurisdictions. Adequate notice of the evidence prevents ‘trial by ambush’ and
the potential prejudice that may result to the opposing party.
[28]
According to the voire
dire evidence, Ms. Vallière’s Report provided the general methodology she
adopted together with her opinion. Although the present Rule 145 does not
specifically require that a report disclose data, analysis and ratios, which
Ms. Vallière admitted underlies her opinion, by the plain and obvious meaning
of “full statement” and in light of the object and purpose of Rule 145,
procedural fairness demands that an expert report include such underlying facts
and assumptions. This Court, in the case of Mathew, held that an expert
has an obligation to communicate those facts and assumptions which are relied
upon in formulating an opinion contained in a report. British Columbia courts
have held that fairness requires notice to an opposing party of not only the
expert opinion but, again, its underlying facts and assumptions to facilitate a
just, speedy and inexpensive determination of every proceeding on its merits.
Similarly, the Ontario Court of Appeal in Marchand, at paragraph 38, held
that the purpose of expert evidence rules is to “facilitate orderly trial
preparation by providing opposing parties with adequate notice of opinion
evidence to be adduced at trial.”
[29]
In respect to specific
content of expert reports, caselaw has consistently held that data, analysis
and calculations relied upon to formulate an opinion must also be included.
Providing this information by disclosing an expert’s working files at trial has
been held not to satisfy the requirements of the British Columbia Rules (Goerzen).
The Ontario Supreme Court - High Court of Justice in Transmetro also
concluded that the phrase “substance of the proposed testimony,” referenced in
the Old Ontario Rules respecting expert evidence, included supporting
documents, calculations and other engineering background materials relied upon
by an expert in formulating his opinion. Similarly, the Federal Court of Appeal
in Karam v National Capital Commission, [1978] 1 FC 403 (FCA), held
that, where an expert affidavit does not adequately explain an expert’s
reasoning, such expert should not be allowed to supplement the affidavit with
verbal testimony until a supplementary affidavit has been filed and the
opposing party has time to consider it.
[30]
An expert opinion must
be supported by underlying facts, calculations, research, documents, hypotheses
or whatever it is the expert is relying upon to formulate his or her opinion. Such
information must be stated and included in the report, otherwise the opinion is
simply that: an unsupported opinion. Ms. Vallière’s Report fails to comply with
the form that Rule 145 dictates a report shall take. Further, as noted in Haughian,
at paragraph 33:
… it
is not simply a matter of form. It is not for plaintiff's counsel, or for that
matter the court, to piece together various documents and attempt to determine
what the report actually consists of. …
[31]
Respondent Counsel’s
argument that the Report satisfies the practices and procedures of the Canada
Border Services Agency with respect to the preparation of ink dating reports,
of course, has no relevance in my determination of whether it satisfies the
requirements of Rule 145. In preparing this Report for the hearing, Respondent
Counsel made a decision to limit Ms. Vallière’s statement and to omit any
reference to the working files which Ms. Vallière testified supported her
opinion in the Report. This was a judgment call that Counsel made in preparing
the conduct of her case that would come before this Court. Whatever her
reasons, in my view she decided that nominal compliance with Rule 145 would
suffice. That was a risk that Counsel chose to take. Counsel also made a choice
not to offer these working files to Appellant Counsel or to this Court at any
point, even after they became an issue.
[32]
While I may have the
discretion to order the Respondent to release the expert’s working files to the
Appellant and to adjourn the hearing to further dates down the road to allow
the Appellant additional time to review those files, to prepare a
cross-examination and to decide on potential rebuttal evidence, in my opinion
procedural fairness, which Rule 145 aims to accomplish not only in its wording
but in its underlying object and purpose, dictates that, in the circumstances
of this appeal, Ms. Vallière’s Report be excluded. In addition, I have no duty
to correct Counsel’s decision to approach a case in a particular way,
particularly as it relates to compliance with the Rules. Counsel must
make decisions like this all the time but, unfortunately in these circumstances,
I do not see my role as being an active participant in correcting the approach
adopted by Respondent Counsel. To allow further adjournments in this matter
would go against the very purpose underlying these expert evidence Rules,
thereby promoting additional time, delays and expenses. This course of action
would only undermine the very spirit and object of the Rules. In addition, I
believe that Respondent Counsel’s suggestion, that the required information
contained in the working papers and, in her words, “any deficiencies perceived
by the Appellant” (Respondent’s Written Submissions, para 2) could be
remedied through cross-examination of the expert or by requesting this Court to
assign little or no weight to the Report, would not comply with a proper
interpretation of Rule 145, nor would it be consistent with the spirit and
purpose of the Rules.
[33]
My decision to exclude
Ms. Vallière’s Report, in accordance with these reasons, disposes of the
preliminary objection. However, I wish to briefly address Appellant Counsel’s
“no evidentiary foundation” argument. As I understand his position, he argued
that, since the Report lacks the data, quantitative analysis and ratios upon
which Ms. Vallière formulated her opinion and since this information is not
otherwise in evidence before this Court, there is “no evidentiary foundation
being laid for expert opinion evidence.” (Appellant’s Written Submissions,
para 23). The Appellant relied on the Supreme Court of Canada decisions in
The Queen
v Lavallee, [1990] 1
SCR 852 and The Queen v Abbey, [1982] 2 S.C.R. 24, (see
Mazur) for the proposition that “an expert opinion cannot be used to
adduce evidence that is not otherwise adducible.” (Appellant’s Written
Submissions, para 24). These cases relate to the evidentiary value of
expert opinions that are based on hearsay evidence. The Supreme Court of Canada
has held that expert opinion that relies on hearsay evidence is admissible, not
for the truth of its content or facts but for the limited purpose of evaluating
the expert opinion. The weight to be accorded to an expert opinion is a
function of the extent to which its underlying facts are found to exist. Where
the opinion relies only on inadmissible hearsay evidence, it will be accorded
little weight. Therefore, the “no foundation” evidentiary rule involves the
weight, rather than the admissibility, of expert evidence that relies on
hearsay.
[34]
Appellant Counsel’s
argument is that, where there is no evidentiary foundation, in that the opinion
is based only on inadmissible evidence, then the expert’s evidence may be
excluded or accorded little weight. However, the Appellant did not identify any
hearsay evidence or other such inadmissible evidence that Ms. Vallière relied
upon in formulating her opinion. The Appellant has not argued that those items
that are missing from her Report are hearsay evidence but, instead, takes issue
with the Report because of the omission of those very items. These were
comprised of the lab tests and calculations which are not hearsay but, rather,
the expert’s firsthand knowledge, observations and so forth. In fact, quite the
opposite position has been argued by the Appellant – that these missing items
are imperative to the Report and should have been included. Consequently, the
Appellant takes issue, not with the fact that Ms. Vallière has relied on
inadmissible evidence in formulating her opinion but, rather, that the
scientific data, tests, calculations and process employed by her in formulating
her opinion has been omitted from the Report. It is unclear to me how Appellant
Counsel’s argument respecting “no foundation” as it relates to the Supreme
Court of Canada decisions, has any application to the objection that was before
me.
[35]
For these reasons,
since the Report does not comply with Rule 145, it will be excluded.
Signed at Ottawa, Canada, this 31st day of January 2014.
“Diane Campbell”
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