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Posted on October 22nd 2016 in Legal Articles

Expert evidence rules should be relaxed in summary judgment motions

Courts should take a more liberal approach to the rules regarding submission of expert evidence on summary judgment motions so that parties aren’t discouraged from using the process, says Toronto civil and commercial litigator Patrick Summers.

Rule 39.02 of the Rules of Civil Procedure requires a party to seek leave from the court in order to file any new affidavits after the completion of cross-examinations in connection with a particular motion or application. However, Summers, a partner with Birenbaum Steinberg Landau Savin & Colraine, says expert evidence on a summary judgment motion deserves special consideration under the rule.

“A motion for summary judgment is usually a final determination of liability, at least on some part of an action. If we’re going to be using it in a more frequent manner, I think the rules with respect to the introduction of expert evidence ought to be relaxed somewhat,” Summers tells AdvocateDaily.com. “Courts should be cognizant that where liability is on the line, the default rules shouldn’t be applied as strictly.

“I’ve done a number of trials that involved expert evidence. I would rarely consider asking someone to give an opinion unless I could provide them with all the information gleaned from examinations for discovery. Why should a motion for summary judgment be any different?”

Summers recently convinced a master to allow the filing of an expert opinion on behalf of his client, the defendants in the long-running case of Mars Canada Inc. v. Bemco Cash & Carry Inc., 2015 ONSC 8078 (CanLII), despite having already completed cross-examinations in connection with a motion for summary judgment filed by the plaintiff. Although the decision did not go as far as to carve out special rules for summary judgment motions, Summers says the courts could find themselves considering more requests for such leave after the Supreme Court of Canada’s 2014 judgment in Hryniak v. Mauldin, which has increased the availability of summary judgment in Ontario.

“There is little case law concerning leave to file material of the cross-examinations in the summary judgment context, but I think the courts should be giving a broad and liberal interpretation to the rules,” he says.

Mars Canada initially sued the defendants back in 2010, alleging, in part, their grey-market importation of chocolate bars breached settlement agreements reached between the parties years before. The defendants resisted, claiming that the agreements are null and void because they constitute an unlawful restraint of trade.

The plaintiff’s motion for summary judgment has been in the works for more than four years after a series of disagreements over production and the scope of cross-examinations. The latest dispute arose when Bemco and its fellow defendants attempted to introduce the expert opinion of Francesco Bova, a professor of accounting at the University of Toronto’s Rotman School of Management.

Summers argued on behalf of the defendants that leave should be granted to file Bova’s evidence under Rule 39.02, since he could not have constructed his opinion without documents and information turned over by Mars Canada to the defendants after cross-examinations were partially completed.

Mars Canada objected, claiming Bova’s report was not an admissible expert opinion, and that it failed to meet the test for leave under Rule 39.02.

However, Master Robert Muir sided with the defendants, finding that this motion was “not the time or place to” determine the admissibility of Bova’s evidence; that task should be left to the judge hearing the summary judgment motion. Bova’s evidence met the test for leave, Muir found, because it was relevant to Bemco’s restraint of trade defence, and because it responded to matters raised in cross-examination that “could not have been fully prepared any earlier than they were.”

“I also see no prejudice to the plaintiff. The hearing of the summary judgment motion has yet to be scheduled,” Muir stated in his decision. “The plaintiff will have a full opportunity to respond to Dr. Bova’s report if it so chooses. It will also be able to cross-examine Dr. Bova. It can object to the admissibility of the report at the return of the summary judgment motion. The additional delay occasioned by the delivery of Dr. Bova’s affidavit is not significant in the context of this summary judgment motion.”