Top 5 Civil Appeals from the Court of Appeal (June 2012)

With the assistance of Yola Ventresca

1. Alfano v. Piersanti, 2012 ONCA 297 (O'Connor A.C.J.O., LaForme J.A. and Cunningham A.C.J. (ad hoc)), May 9, 2012 This decision is significant for its discussion of the independence of expert witnesses and whether a lack of independence goes to the issue of the weight to be afforded to that evidence, or, conversely, its admissibility. This long and complex legal battle concerned Osler, an entity incorporated by the Alfano family with the assistance of their lawyer Christian Piersanti ("Piersanti"), to operate a paving business. Ownership in Osler was shared among Piersanti and the Alfano brothers through family trusts. After the relationship between the Alfano family and Piersanti began to deteriorate, Piersanti locked the Alfanos out of the business. After the Alfanos commenced this action against Piersanti and others, Piersanti assigned Osler into bankruptcy. After a long trial, MacDonald J. held, in part, that Piersanti improperly assigned Osler into bankruptcy as part of a fraudulent scheme to deprive the Alfano Family Trusts of their interests in Osler. MacDonald J. ordered Piersanti to pay twenty million dollars in damages resulting from the bankruptcy of Osler. Piersanti and the other defendants appealed. The trial judge's refusal to hear evidence from a proposed expert was one of the grounds of appeal. At trial, the appellants proposed to call an expert to proffer evidence with respect to the issue of forensic accounting and the Alfanos' damages claim. Upon receiving the expert's reports, counsel for the respondents provided notice of their intention to object to the admissibility of the expert's evidence on the ground that the expert and his associates had assumed the role of advocate and were not acting independently. The issue of the admissibility of the evidence was addressed during a three day voir dire during which the proposed expert was cross-examined at length. Following the voir dire, MacDonald J. held that the expert's evidence was inadmissible. Specifically, she held that the expert had assumed the role of advocate and his role as an independent witness was secondary to that of "someone who is trying their best for their client to counter the other side." She found that the expert's reports were "tainted by the lack of impartiality [...]" that were apparent in e-mails produced during the voir dire. On appeal, the appellants argued that the trial judge erred in refusing to admit the expert's evidence. Specifically, the appellants argued that the expert's reports were impartial and objective and, further, that any lack of independence goes to the question of the weight to be attributed to the expert's evidence, not its admissibility. Writing for the Court of Appeal, O'Connor A.C.J.O. affirmed the principle that expert evidence is an exception to the general rule barring opinion evidence. The party tendering expert evidence has the burden to satisfy, on a balance of probabilities, the four criteria for the admissibility of expert evidence set out by the Supreme Court of Canada in R. v. Mohan, [1994] 2 S.C.R. 9: 1) relevance, 2) necessity in assisting the trier of fact, 3) the absence of any exclusionary rule, and 4) proper qualification. O'Connor A.C.J.O. noted that previous jurisprudence from the Supreme Court of Canada had confirmed that in adjudicating on the necessity of expert evidence, the court must consider whether the expert is capable of assisting the trier of fact by providing information likely to be beyond the trier's knowledge and experience. In determining whether an expert's evidence will be helpful, a court must consider the expert's independence or objectivity. A biased expert is unlikely to provide useful assistance. O'Connor A.C.J.O. explained that the courts have accepted that experts are called by one party in an adversarial proceeding and are generally paid by that party to prepare a report and to testify. The courts, however, must remain concerned "that expert witnesses render opinions that are the product of their expertise and experience and, importantly, their independent analysis and assessment." While the opinion may support the client's position, "it should not be influenced as to form or content by the exigencies of the litigation or by pressure from the client." Importantly, O'Connor A.C.J.O. noted that while in most cases, the issue of whether an expert lacks independence or objectivity is addressed as a matter of weight to be attached to the expert's evidence rather than as a matter of its admissibility, the court retains a residual discretion to exclude the evidence of a proposed expert witness when the court "is satisfied that the evidence is so tainted by bias or partiality as to render it of minimal or no assistance." In considering the issue of whether to admit expert evidence in the face of concerns about independence, a trial judge may conduct a voir dire and have regard to any relevant matters that bear on the expert's independence, including the expert's report, the nature of the expert's retainer and any materials and communications that formed part of the process by which the expert came to his or her opinion. The Court of Appeal noted that absent an error in applying the proper legal principles or a conclusion unsupported by the evidence, an appellate court will not interfere with a trial judge's decision regarding a proposed expert's independence. Applying these principles to the facts of this case, O'Connor A.C.J.O. noted that the trial judge had regard to the appropriate legal principles and that there was ample evidence to support her conclusion that the expert's proposed evidence lacked independence. 2. Downer v. The Personal Insurance Company, 2012 ONCA 302 (Lang, LaForme JJ.A. and Pattillo J. (ad hoc)), May 9, 2012 This was an appeal by the insurer, The Personal Insurance Company, from the dismissal of its motion for summary judgment to dismiss the insured's claim for accident benefits. The appeal turned on the meaning of "accident" under s. 2(1) of the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, O. Reg. 403/96 ("Schedule"). The incident which gave rise to these proceedings occurred when the insured pulled into a gas station to purchase gas. While his engine was running, he was assaulted in his vehicle by a number of men. They attempted to pull him out of vehicle. The insured managed to drive away, but believed that he might have hit or run over one of the assailants while doing so. He applied for statutory accident benefits, claiming that he suffered from depression, anxiety, post-traumatic stress disorder, back pain and headaches. The insurer paid accident benefits, but ultimately took the position that the payment was the result...