Top 5 Civil Appeals From The Court of Appeal (February 2015)

1. Meady v. Greyhound Canada Transportation Corp., 2015 ONCA 6 (Strathy C.J.O., Feldman and Pardu JJ.A.), January 8, 2015

2. Ibrahim v. Robinson, 2015 ONCA 21 (Weiler, Feldman and Benotto JJ.A.), January 19, 2015

3. Wesbell Networks Inc. v. Bell Canada, 2015 ONCA 33 (Strathy C.J.O., Rouleau and Hourigan JJ.A.), January 23, 2015

4. First Elgin Mills Developments Inc. v. Romandale Farms Limited, 2015 ONCA 54 (Epstein, Lauwers and Pardu JJ.A.), January 28, 2015

5. Moore v. Getahun, 2015 ONCA 55 (Laskin, Sharpe and Simmons JJ.A.), January 29, 2015

1. Meady v. Greyhound Canada Transportation Corp., 2015 ONCA 6 (Strathy C.J.O., Feldman and Pardu JJ.A.), January 8, 2015

   This action arose out of an accident on a Greyhound bus. Shaun Davis was making the long journey from Calgary to Pictou, Nova Scotia. At a rest stop near Thunder Bay, he began exhibiting signs of anxiety and paranoia, claiming that other passengers were trying to harm him. Two police officers questioned and searched him, but ultimately concluded that Davis posed no threat and allowed him to re-board. Shortly thereafter, Davis lunged at the driver and grabbed the steering wheel, causing the bus to veer off the road and flip onto its side.

   Tragically, one passenger was killed and many more injured. A number of them sued Greyhound and the driver, Albert Dolph, as well as the two OPP officers who communicated with Davis before he returned to the bus and their employer, the province of Ontario.

   The trial judge dismissed the action against all of the defendants, other than Davis, who did not defend the action and was noted in default.

   Central to the appeal was the trial judge's exclusion of the proposed evidence of two experts, one on police training and the other on the matter of bus safety. The appellants argued that the former would have established that a competent police officer, having observed that Davis was delusional, would have employed crisis management techniques to deter him from boarding the bus, and that the latter would have established that a prudent bus driver, aware of Davis' agitated condition and observing his behaviour, would have reduced his speed, averting the accident or at least mitigating the damage caused. The appellants further claimed that the trial judge failed to adequately articulate the standard of care applicable to the respondents.

   Writing for the Court of Appeal, Strathy C.J.O. observed that in considering the admissibility of the impugned evidence, the trial judge correctly identified the test in R. v. Mohan, [1994] 2 S.C.R. 9. Under that test, the evidence must be relevant, it must be necessary to assist the trier of fact, it must not be subject to an exclusionary rule and it must be tendered by a properly qualified expert. The appeal turned on the second requirement, the necessity criterion.

   As the Supreme Court explained in Mohan, necessary evidence is that which provides information which is likely to be outside the experience and knowledge of a judge or jury. The necessity criterion asks whether the trier of fact can form a judgment on the relevant issues without the assistance of persons with special knowledge.

   While Strathy C.J.O. noted that the content of the standard of care of a professional is a question of fact which will generally require expert evidence, he noted the "growing recognition of the responsibility of the trial judge to exercise a more robust gatekeeper role in the admission of expert evidence". As the Court explained in R. v. Abbey, 2009 ONCA 624, in determining whether the proposed evidence is necessary to the proper adjudication of the facts, the trial judge must consider whether the benefits of admission outweigh the costs. This exercise does not always yield a simple answer and involves an exercise of discretion.

   Strathy C.J.O. noted that the trial judge is best equipped to determine the extent to which expert evidence is required, if at all, to assist him in the disposition of the issues. The exercise of the trial judge's "gatekeeper" function is therefore owed deference.

   In this case, the trial judge had the task of determining the standards of care to be observed by police officers and a bus driver. In Strathy C.J.O.'s view, exercise of police powers of investigation, arrest and detention and police interactions with the public are "part of the daily diet" of a Superior Court judge. Technical knowledge or expertise was not required for the trial judge to determine whether the officers properly investigated Davis and whether they ought to have restrained him or persuaded him not to board the bus. Moreover, the police training materials to which the expert referred were in evidence and were used on cross-examination of the officers. The trial judge did not require expert testimony to understand the standards set out in those materials or to determine whether the officers properly applied their training. Strathy C.J.O. observed that the trial judge considered and rejected each of the appellants' complaints that the police offers failed to meet their standard of care. It was open to him to conclude that expert evidence was not required to determine these issues.

   Similarly, the trial judge reasonably decided that expert evidence was unnecessary to address the appellants' allegations of negligence against the Greyhound respondents, particularly their claims that the bus was traveling too fast at the time of the accident and that Dolph ought to have slowed down when he observed that Davis had left his seat. Strathy C.J.O. noted that these types of issues are frequently decided in motor vehicle negligence cases without the assistance of expert evidence. Further, the record included evidence of Greyhound's practices and procedures and Dolph was...