Appropriate Use of Expert Evidence on Summary Judgment Motions

As summary judgments become more and more the principal forum to resolve disputes in their entirety, rules around the evidence that can be used in these types of motions become paramount. Courts do allow expert evidence to come in as evidence on summary judgment motions so long as the Rules on expert evidence are complied with. In a recent case, a court criticized the defendant for not producing an expert report in line with the Rules. The report or part of it was brought in as evidence through a solicitor’s affidavit. The court found that this approach amounts to the expert evidence being insulated as there is no ability for the opposing party to cross-examine the expert.

The court ultimately ruled in favour of the plaintiff as the defendant had an obligation to put their best foot forward and prove there is a genuine issue requiring trial. It had failed to do so. 

Background

A roofing company provided services to a city. A flood occurred and the city took the position that the roofing company should be held accountable as they were negligent by overloading the roofing materials on the roof which exceeded the amount of weight it can hold.

The claim for the flood was being dealt with the roofing company and the city’s respective insurers.

The roofing company was ultimately not paid on its invoices. It brought a claim and moved for a summary judgment. The city sought dismissal and, in the alternative, moved for summary judgment asserting there is a genuine issue for trial.  

One of the main issues that was being argued was that the limitation period had expired. For the purposes of this commentary, I will only focus on the court’s comments on expert evidence on summary judgments.  

Court

The city argued that there was a genuine issue requiring a trial. The affidavit in support of the city seeking its relief was a solicitor’s affidavit which relied on the findings of an expert who concluded that the flooding occurred from the additional loading of the roof materials by the roofing company during the repairs.

The court pointed out that a solicitor’s affidavit does not meet the city’s obligations under Rule 20 to prove a genuine issue requiring a trial:

The case law is clear that a “responding party may not rest on mere allegations or denials of the party’s pleadings, but must set out—in affidavit material or other evidence—specific facts establishing a genuine issue requiring a trial”. Simply repeating allegations in the party’s pleadings in an affidavit by the party’s lawyer does not transform the pleadings into evidence.

The court held that expert evidence coming in as evidence must come in accordance to Rule 53.03.

A party cannot shield its expert from cross-examination through the use of an ‘information and belief’ of someone completely unqualified to testify on the issue. Referring to the solicitor being unqualified to give evidence about the weight limit of the roof.

The court as a result rejected the evidence and ruled in favour of the roofing company as the city did not meet its onus to establish there is a genuine issue for trial in respect of the negligence and fundamental breach.

Concluding Comments

Summary judgments are a key consideration for any litigant entering into the ambit of the Rules of Civil Procedure. The use of expert evidence is permissible and cross-examinable under summary judgment motions.

Parties hiding behind affidavits from deponents with no knowledge of the expert evidence should tread carefully as courts will rule against them in the face of that party having a strong basis to move to trial.

As the Court of Appeal in Mazza v. Ornge Corporate Services Inc. held there is an obligation for parties to put their best foot forward on summary judgments or risk losing.