Odobas v. Yates

2021 BCSC 2320 Odobas v. Yates

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Odobas v. Yates, 2021 BCSC 2320 Date: 20211020 Docket: S178536 Registry: Vancouver Between: Daniel Odobas, Don Francesco Restaurant (2013) Ltd. and Newton Arms Pub Inc. Plaintiffs And Rodney B. Yates and Peterson Stark Scott, Barristers & Solicitors Defendants Before: The Honourable Mr. Justice A. Ross Oral Reasons for Judgment Counsel for the Plaintiffs: J. Shragge M. Nied Counsel for the Defendants: J.G. Dives, Q.C. Written submission received from the Plaintiffs: October 6, 2021 Written submission received from the Defendants: October 7, 2021 Place and Date of Judgment: Vancouver, B.C. October 20, 2021 [1] THE COURT: I am providing this decision orally and briefly for the reasons set out below. This application comes on mid trial. The nature of this action is a claim in solicitor's negligence that arises from advice provided by the defendant solicitor to the plaintiffs relating to a lease renewal term. The legal advice was provided in the context of the plaintiffs purchasing a restaurant. The plaintiffs say that if the proper advice had been provided at the appropriate time, they would not have purchased the restaurant and they would not have suffered financial losses. [2] The plaintiffs tendered the expert report, on standard of care, of Mr. Michael Leroux. He is a solicitor whose qualifications are discussed below. The

defendants object to the admissibility of this expert opinion. [3] The defendants raised their objections to Mr. Leroux's report prior to trial and gave proper notice of the nature of their objection. There is no issue of prejudice to the plaintiffs. [4] At trial, prior to the date scheduled for Mr. Leroux's testimony, I ruled that Mr. Leroux's report and his viva voce testimony should be taken within a voir dire and the arguments regarding admissibility should be made at the close of Mr. Leroux's testimony. That ruling, in part, was occasioned by scheduling issues. However, the larger part of my reason for proceeding in this manner dealt with the overall gatekeeping function of the court. In my review, Mr. Leroux's opinion and the defendants' arguments regarding its admissibility would be better resolved following a full exploration of his report, opinion, and testimony. [5] Proceeding in this manner led to a further scheduling issue. In short, the defendants need to know whether Mr. Leroux's report and opinion will be admitted into evidence before they make their decision on how to proceed with the defence of this matter. [6] Mr. Leroux testified on September 14, 2021. The trial was scheduled to proceed until September 16. The trial did not complete on September 16, and further dates were scheduled later in the year. As a result, this application comes on as a standalone

application on October 12, 2021, during a break in the trial. I am indebted to counsel for providing written submissions setting out their positions prior to the hearing. [7] I note that these circumstances lead to a further complicating factor. The defendants make arguments on the admissibility of Mr. Leroux's report. Some of those arguments may also apply to my consideration of the weight to be afforded to Mr. Leroux's opinion. The arguments are appropriately made at this juncture in the trial. However, because we are mid trial, I am not in a position to provide my thoughts on the strength or weakness of Mr. Leroux's opinion, only as to admissibility. For that reason, this decision will be brief when addressing the defence arguments that spill over between admissibility and weight. A more complete review of Mr. Leroux's report will be provided in the ultimate reasons for judgment. It will be evident from the prior sentence that my ruling on the voir dire is that Mr. Leroux's opinion and testimony are admissible. Admissibility of expert reports in general and in specific. [8] Conceptually, the defendants' argument proceeds on three levels: a) First, on a very high level, the general trend of the court to perform a more robust gatekeeping function. b) Second, from a mid level, the admissibility of and necessity of expert opinion evidence in this type of case. c) Third, on a

granular level, the admissibility of this particular expert report. Gatekeeping Role of the Court. [9] Both parties cite the decision of the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 [White Burgess]. In that case the Court addressed the concern that the trial would evolve into "trial by expert," and listed a number of potential concerns that arise. I then quote paras. 18-20 of White Burgess: [18] The point is to preserve trial by judge and jury, not devolve to trial by expert. There is a risk that the jury "will be unable to make an effective and critical assessment of the evidenceˮ: R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 90, leave to appeal refused, [2010] 2 S.C.R. v. The trier of fact must be able to use its "informed judgment", not simply decide on the basis of an "act of faith" in the expert's opinion: J.-L.J., at para.

56. The risk of "attornment to the opinion of the expertˮ is also exacerbated by the fact that expert evidence is resistant to effective cross-examination by counsel who are not experts in that field: D.D., at para.

54. The cases address a number of other related concerns: the potential prejudice created by the expert's reliance on unproven material not subject to cross-examination (D.D., at para. 55); the risk of admitting "junk science" (J.-L.J., at para. 25); and the risk that a "contest of experts" distracts rather than assists the trier of fact (Mohan, at p. 24). Another well-known danger associated with the admissibility of expert evidence is that it may lead to an inordinate expenditure of time and money: Mohan, at p. 21; D.D., at para. 56; Masterpiece Inc. v. Alavida Lifestyles Inc., 2011 SCC 27, [2011] 2 S.C.R. 387, at para. 76. [19] To address these dangers, Mohan established a basic structure for the law relating to the admissibility of expert opinion evidence. That structure has two main components. First, there are four threshold requirements that the proponent of the evidence must establish in order for proposed expert opinion evidence to be admissible: (1) relevance; (2) necessity in assisting the trier of fact; (3) absence of an exclusionary rule; and (4) a properly qualified expert (Mohan, at pp. 20-25; see also Sekhon, at para. 43). Mohan also underlined the important role of trial judges in assessing whether otherwise admissible expert evidence should be excluded because its probative value was overborne by its prejudicial effect -- a residual discretion to exclude evidence based on a cost-benefit analysis: p.

21. This is the second component, which the subsequent jurisprudence has further emphasized: Lederman, Bryant and Fuerst, at pp. 789-90; J.-L.J., at para. 28. [20] Mohan and the jurisprudence since, however, have not explicitly addressed how this "cost-benefit" component fits into the overall analysis. The reasons in Mohan engaged in a cost-benefit analysis with respect to particular elements of the four threshold requirements, but they also noted that the cost-benefit analysis could be an aspect of exercising the overall discretion to exclude evidence whose probative value does not justify its admission in light of its potentially prejudicial effects: p.

21. The jurisprudence since Mohan has also focused on particular aspects of expert opinion evidence, but again without always being explicit about where additional concerns fit into the analysis. The unmistakable overall trend of the jurisprudence, however, has been to tighten the admissibility requirements and to enhance the judge's gatekeeping role. [10] In White Burgess, the Court expanded or clarified the court's gatekeeping function in respect to an expert's independence: [54] Finding that expert evidence meets the basic threshold does not end the inquiry. Consistent with the structure of the analysis developed following Mohan which I have discussed earlier, the judge must still take concerns about the expert's independence and impartiality into account in weighing the evidence at the gatekeeping stage. At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence. At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence. [11] Breaking down the preceding paragraphs: a) First, there

are four threshold requirements taken from the Mohan decision that the proponent of the evidence must establish in order for any proposed expert opinion evidence to be admissible. Those are: i. relevance, ii. necessity in assisting the trier of fact, iii. absence of an exclusionary rule, and iv. a properly qualified expert. Those elements are taken from Mohan at pages 20 to 25. b) Further, the Mohan decision underlined the important role of trial judges in assessing whether otherwise admissible expert evidence should be excluded because its probative value is overborne by its prejudicial effect. A residual discretion to exclude evidence based on a cost-benefit analysis continues to exist. [12] The parties agree that a party tendering the expert opinion has the burden of establishing the first four Mohan factors. The opposing party has the burden of establishing any exclusionary rule. [13] In overview, the defendants submit that the general movement of recent case law is to increase the trial judge's gatekeeping function; in other words, to depart from the practice of allowing expert reports to be admitted into evidence, with the real consideration being deferred to the final reasons, where the assessments go to the weight to be afforded. The defendants submit that this trend should be made to exclude Mr. Leroux's report rather than allowing it in. [14] In response, the

plaintiffs argue that the trend of the law is not relevant to this case. They submit that the type of report they have tendered meets all of the Mohan requirements. Further, they point out that this application is being made during the course of the plaintiffs' case. They note that the court is not in a position to determine all of the issues that may arise or be argued at the close of trial. Thus, in general terms, they submit that I should use caution. [15] In respect of the issue of timing, I am cognizant of the comments of Justice Stewart in R. v. Smith, 2003 BCSC 2069, regarding a ruling on the issues to be explored within a voir dire. At para. 10, Justice Stewart said: [10] Trials, like life, can only be understood backwards. But they must be lived forwards. At this juncture, I am not sure of enough of the ground to carve the accused's loaf down to half a loaf. I proceed with that warning in mind. Expert Opinions in This Type of Case [16] I next turn to the arguments relating to the necessity of expert reports in this type of case. I perceive that there are, to some extent, diverging lines of authority. The divergence appears to be whether: a) there is a restrictive general rule stating that expert opinion evidence is not admissible, subject to certain exceptions; or b) whether the general rule is that expert opinion evidence on the standard of care should be admitted

because it is necessary unless there is a rule excluding it. [17] The defence relies on a line of cases that reason that expert opinion evidence in solicitor negligence cases are not necessary and, thus, not admissible. The line of cases relied upon by the defendants include Midland Bank Trust Co. Ltd. et al. v. Hett, Stubbs & Kemp, affirmed, [1978] 3 All E.R. 571 (Ch. Div.). Also, Marbel Developments Ltd. v. Pirani, 1994 CanLII 652 (B.C.S.C.), which adopts the reasoning from Midland Bank. Justice Newbury wrote regarding the expert opinion of a Ms. Vogt: With all due respect to Ms. Vogt, I must say that her testimony reminded me of the comments of Oliver, J. in Midland Bank, supra: "I must say that I doubt the value, or even the admissibility, of this sort of evidence, which seems to be becoming customary in cases of this type. The extent of the legal duty in any given situation must, I think, be a question of law for the court. Clearly, if there is some practice in a particular profession, some accepted standard of conduct which is laid down by a professional institute or sanctioned by common usage, evidence of that can and ought to be received. But evidence which really amounts to no more than an expression of opinion by a particular practitioner of what he thinks he would have done had he been placed, hypothetically and without the benefit of hindsight, in the position of

the defendants is of little assistance to the court, whilst evidence of the witnesses' view of what, as a matter of law, the solicitor's duty was in the particular circumstances of the case is, I should have thought, inadmissible, for that is the very question which it is the court's function to decide." [at 582] [18] Justice Newbury continued: I do not go so far as to conclude that Ms. Vogt's opinion was inadmissible in this case, but like Oliver, J. I suggest that a publication or checklist widely circulated in the legal profession, indicating a standard "sanctioned by common usage", would have been more useful. [19] The defendants also rely on the decision of Justice Adair in Fong v. Lew, 2015 BCSC 436, on similar facts. Justice Adair ruled that expert opinion evidence on the standard of care was not necessary. In her final reasons for judgment, Justice Adair wrote: [21] Here, there was no expert opinion evidence on the applicable standard of care. Mr. Dives objected to the admissibility of the reports of the plaintiffs' expert, Mr. Richard Ledding, and, in the result, I ruled that the reports were inadmissible. [22] However, there are certainly solicitor's negligence cases that are heard and decided in the absence of any opinion evidence. Graybriar Indust. Ltd. v Davis & Co., 1990 CanLII 1838, and Tiffin are two examples. Both Mr. Henshall and Mr. Dives rely on the

discussion and analysis in case authorities as informing the details of standard of care that should apply here. [20] I give great credence to the reasons of Justice Adair, but I note again the warning of Stewart J. in Smith. At this stage, I am not aware of all the issues that I may face in final argument. Further, I do not read para. 22 of Justice Adair's decision as ruling that expert opinion is not admissible, only that there are cases where it is not necessary. I further note that the comments of Justice Newbury do not address the core issue of admissibility. They merely indicate that expert opinion may not be necessary. [21] In addition to the cases noted above, I reviewed the decision in Henry v. HMTQ, 2015 BCSC 1848, where Chief Justice Hinkson ruled that expert opinion evidence was not necessary or admissible in determining the issues in that case. He also found that the opinion offended the exclusionary rule respecting the receipt of evidence from a lawyer on matters of law. [22] In Henry, Chief Justice Hinkson felt he was bound by the Court of Appeal's decision in R.L. Contracting v. A, 1981 CanLII 443 (B.C.C.A.). That case, in turn, followed the reasoning of Midland Bank Trust. Again, that is the line of cases relied upon by the defence. [23] I note, however, that the issue in Henry was whether the plaintiff's Charter rights had been breached by the Crown's failure

to disclose certain information to Mr. Henry during his prosecution. Hence, the court's role in that case was to determine whether there had been a Charter breach, and then whether that breach entitled the plaintiff to Charter damages. It goes without saying that this Court regularly assesses whether certain actions by police or Crown constitute a breach of a person's Charter rights. Hence, I do not find the reasoning in Henry assists me. [24] Further, the R.L. Contracting case relied upon by the defence involved an action against a solicitor who had advised a client in the midst of a complex construction dispute. The solicitor advised the client to pursue a certain strategy. The court ruled that expert evidence on a standard of care would not assist because no lawyer in hindsight could comprehend all of the myriad factors and opine on what the reasonable standard may have been. [25] As discussed below, when addressing the application of the case law for particular facts of this case at a granular level, the defence argues that the defendants' solicitor was faced with circumstances that were either unique or very unusual. Hence, the defence argues, no expert evidence of a standard is admissible because any such report would simply indicate what the "expert" solicitor would do in the same circumstances. [26] In my reading of the case law, that is the reasoning applied by the

court in cases relating to strategic advice provided to clients in complex cases like R.L. Contracting. When a lawyer advises to pursue a particular strategy on the basis of the particular facts faced by the client, expert opinion evidence is not admissible because there is no particular standard. No lawyer can opine on the standard of care in that type of case. The factual matrix cannot be reproduced to form the required hypothetical for the expert to consider. I do not find that reasoning applies in the circumstances of this case. [27] The question in this case is not the strategy to be pursued, but whether, and at what time, the client should have been notified about particular terms in the lease. The lawyer's role in the present case did not involve a choice among several possible avenues or strategies. The dispute in this case turns on whether and when the solicitor should have brought an unusual lease renewal term to the attention of the plaintiffs. [28] On that basis, I find that the complex litigation cases referenced by the defence do not assist me. They are distinguishable from the present case. Similarly, the judge's role cases like Henry do not apply. [29] On the other side, the plaintiffs rely on a line of cases that set out reasoning that, as general rule, it is inappropriate for a trial judge to determine the standard of care in professional negligence cases in

the absence of expert evidence. On the basis of those cases, they argue that Mr. Leroux's report meets the necessity requirement of the Mohan test, among others. [30] The line of cases relied upon by the plaintiffs appears to see its origin in the common sense discussion provided by Justice Southin in a solicitor's negligence case, Zink v. Adrian, 2005 BCCA 93 at paras. 43-44: [43] But it does seem to me that in cases of alleged negligence by a solicitor, judges can only rarely make such a finding in the absence of expert evidence as to the standard of a competent solicitor conducting the business in question. [44] The judge can only properly do so, in my opinion, if the matter is one of "non-technical matters or those of which an ordinary person may be expected to have knowledge." See Anderson v. Chasney, [1949] 2 W.W.R. 337 at 341 (Man. C.A.). There is an underlying reason - the expert witness can be cross-examined with a view to showing he knows not whereof he speaks. But the parties have no means of discrediting a judge's implicit assertion that he knows the proper way to conduct a certain kind of legal business. One must not overlook that the reason some judges are judges is that whilst they were practising the profession they were of a standard far above that of the ordinary reasonably competent member of the profession. [31] Hence, on Southin J.A.'s formulation of the

general rule, expert opinion is required unless the case falls within an exception, such as the cases involving non-technical matters or those in which an ordinary person may be expected to have knowledge. [32] The defence argues that these comments were in obiter and not in the majority decision. The defence further argues that the reasoning in Zink has not been generally followed. They point to the decision in Huang v. Li, 2020 BCSC 1727, where the court noted at para. 508: [508] However, I note that in Zink, the majority did not concur in the views expressed by Southin J.A. Moreover, at the trial, no expert evidence had been called. Instead, caselaw was cited to the trial judge as informing the details of the standard of care expected of a solicitor, and Zink is not unique in that respect. The finding of negligence was upheld in the Court of Appeal. [33] I note, however, that the Huang decision was, again, written by Justice Adair. She was addressing the expert report that purported to address "the professional and ethical standards for lawyers in Canada." Justice Adair noted several problems with the admissibility of that report, including the fact that the opinion was based on the model code of professional conduct. She opined that it was her job as the trial judge, with the assistance of counsel, to identify the applicable law relevant to the claim of breach of fiduciary

duty, to interpret and understand the law, and then to apply it to the facts. [34] The plaintiffs submit, and I accept, that Justice Southin's reasoning in Zink has been adopted as the general rule in respect of solicitor's negligence cases. They note that the leading cases in both Ontario and Alberta follow the reasoning in Zink. First, the principles to be considered were helpfully summarized by the Ontario Court of Appeal in Krawchuk v. Scherbak, 2011 ONCA 352 at paras. 132-133, where the court states: [132] While the authorities discussed above indicate that, as a general rule, it will not be possible to determine professional negligence in a given situation without the benefit of expert evidence, they do indicate two exceptions to this general rule. [133] The first exception applies to cases in which it is possible to reliably determine the standard of care without the assistance of expert evidence. As explained by Southin J.A., at para. 44 of Zink, this will be the case only where the court is faced with "non-technical matters or those of which an ordinary person may be expected to have knowledge". [35] The court continues at para. 135: [135] The second exception applies to cases in which the impugned actions of the defendant are so egregious that it is obvious that his or her conduct has fallen short of the standard of care, even without knowing precisely the parameters

of that standard [36] Similarly, the Alberta Court of Appeal thoroughly canvassed the state of the law in Mraz v. Herman, 2016 ABCA 313, leading to the following conclusion which adopts Southin J.A.'s reasoning, although it does not mention it: [47] The bulk of modern authority suggests that in most circumstances judges are not ideally situated to determine whether a lawyer's standard of care in a particular circumstance was sufficient to discharge his or her fiduciary obligations. See also Malton v Attia, 2016 ABCA 130 at paras 52-54. [48] When lawyer negligence is alleged but judicial notice has not been taken, there are three reasons why expert evidence is preferable: first, specialized areas of practice are becoming more common; second, once appointed, judges become quickly removed from day-to-day details of practice; and third, judges cannot be cross-examined on their opinion. [37] The reasoning from Krawchuk was specifically adopted by our court in Omer v. Badshah, 2019 BCSC 1814, where Justice Schultes indicated, at para. 144, that "the principles to be considered were helpfully summarized in Krawchuk". [38] Similarly, in Froese v. Sharif, 2020 BCSC 1914, Justice N. Smith reasoned at para. 179: [179] In cases of alleged negligence by a solicitor, judges can only rarely make a finding of negligence in the absence of expert evidence as to the standard of a competent

solicitor conducting the business in question: Zink v. Adrian, 2005 BCCA 93 at paras. 43-44, Southin J.A., concurring. [39] In reviewing the cases, I note the following reasoning applies to the current case at the current stage in the proceedings. First, the alleged breach by the defendants' solicitor in this case does not fit within the three exceptions discussed in the cases: a) there is no agreement that the alleged breach was in a non-technical matter; b) there is no agreement that the alleged breach was in an area that an ordinary person may be expected to have knowledge; and c) I am unable to determine at this stage whether the defendants' actions fell so far below the expected standard such that it was clearly a breach of any standard. [40] That being the case, at this stage in the trial, I find there is no reason to divert from the general rule that expert evidence is admissible in this type of case where the allegations relate to professional negligence. I am not able to determine at this stage whether this case falls within the types of cases where such expert evidence is not required. [41] Further, I find that the expert opinion is not of the "litigation strategy variety" where each case and the advice given will be unique. The expert opinion does not attempt to advise the court on a finding of law. Hence, at this stage, I can only find that it is possible that the

expert opinion evidence will be relevant and necessary to determining the issues before the court, including the standard of care. On that basis, I find that the expert opinion evidence is admissible in this type of case. Admissibility of Mr. Leroux's Report [42] With those general discussions set out above, I now move on to discuss the specific objections raised by the defendants. The defendants raise five separate areas regarding the admissibility of Mr. Leroux's report. It is clear that the arguments are not distinct, and there is significant overlap between them. [43] The defendants submit that: a) [Mr. Leroux] [d]oes not set out his area of his expertise as required by the Rules. Further, he is not a "expert" as that term is understood in the authorities. b) He expresses opinions that go to the very issue that must be decided by the court and is the exclusive jurisdiction of the trial judge. c) He opined on a case in which no opinion evidence as to the standard of care of the solicitor is admissible or necessary. d) He fails to set out the reasons for his opinion. e) He lacked independence. [44] I will deal each of these arguments in order. First, the defendants argue that Mr. Leroux's report does not set out his area of expertise as required by the Rules. When he was tendered as an expert, Mr. Leroux was qualified as a solicitor in the areas of business transactions and

leasing. The defendants did not take issue with those areas of expertise. [45] The defendants note that Mr. Leroux was not tendered as an expert in the "standard of care of the business lawyer." The defendants say that, at best, Mr. Leroux's opinions express what a reasonably competent solicitor "should" do. However, they argue that he is not qualified to express those opinions. The defence argues that in cross-examination, Mr. Leroux conceded that he had no knowledge of what other solicitors may do when advising clients on this type of matter. [46] The defence argues that Mr. Leroux's evidence does not provide any helpful evidence about the usual practice of business lawyers advising about the leases which a judge could then consider in determining whether the defendant solicitor failed in his duties to his client. They argue that he is expressing opinion based on what Mr. Leroux would have done, not a reasonable solicitor. [47] I do not accept the defence argument on this point. [48] I accept the plaintiffs' submission that Mr. Leroux was broadly qualified as an expert in his field. It would be unusual for a person or lawyer to have a specific expertise in the standard of care of particular types of files. Instead, in this case, it is appropriate to receive expert opinion evidence from a person with similar qualifications and experience to the defendant. That is the person,

Mr. Leroux, the plaintiffs have tendered as an expert. [49] Again, without ruling on the weight to be given to the opinion, I am limited in what I can say. I will say, however, that Mr. Leroux's opinion has the potential to assist me in determining the issues in this action. If there are weaknesses in that opinion, the defence can argue those points in final submissions. [50] Second, the defence argues that Mr. Leroux's opinion goes to the ultimate issue that must be decided by the trial judge. [51] The defence argues that although Mr. Leroux stated in his report that he relied on the assumed facts set out in his instruction letter, in cross-examination he repeated that he did not rely on those assumed facts or the documents. [52] The defendants further argue that Mr. Leroux did not engage in any analysis as to the reason that a reasonably competent solicitor should have done certain things at certain times. They argue that his conclusions are the very finding which a trial judge would need to arrive at in order to conclude that Mr. Yates was negligent. They further argue that Mr. Leroux's report reads like the conclusory submissions of counsel. [53] In answer to this argument, the plaintiffs note that there is no longer a general rule barring opinion evidence on the "ultimate issue." The plaintiffs submit that the former rule was flawed because the court always retained the

power to accept or reject evidence as it saw appropriate. [54] I do not accept the defence argument on this point. Mr. Leroux's report does not present any difficulty for me in deciding what the standard of care should be in relation to this case. Mr. Leroux's report contains his opinion, and it is stated to be his opinion. I may accept or reject any part of Mr. Leroux's opinion at the end of the day. On that basis, I do not accept the defendants' second reason for opposing admissibility. [55] Third, the defence argues that this is the type of case in which no opinion evidence as to the standard of care is admissible or necessary. I dealt with this submission above. I do not accept the defence position. I find that this type of case is one where the expert opinion evidence is within the rule, rather than the exception. [56] Fourth, the defence argues that Mr. Leroux failed to set out the reasons for his opinions. The defendants relied on Rule 11-6(1)(f) which requires that expert reports set out the basis of the expert's opinion. The defendants argue that Mr. Leroux's report does not identify the reasoning behind his opinion; hence, the defence is prejudiced because it is only through the process of cross-examination that the actual reasoning behind the opinion can be exposed. The defence is forced to strip down the basis of the opinion in cross-examination and then attack the

basis of the opinion that has been discovered. [57] The defence further argues that this process undertaken by the court in this trial, meaning the hearing of Mr. Leroux's testimony within a voir dire, cannot insulate the plaintiffs from the problems with his report. If the report had been tendered and the defence objections had been heard at the outset, the court would be required to address the latter reasoning head on before cross-examination. [58] In response to this argument, the plaintiffs point out a number of paragraphs wherein Mr. Leroux sets out the basis of his reasoning. I accept the submission of the plaintiffs on this issue. The report does not contain a description of the reasoning followed by Mr. Leroux. The report is not bereft of reasoning, but meets the test for admissibility on that point. If the defence weakened the underpinning of Mr. Leroux's opinion during cross-examination, that is a matter that goes to the weight the court will afford to the opinion at the end of the day. [59] Finally, the defence argues that Mr. Leroux lacked independence. This argument arises from counsel's cross-examination during the voir dire. Counsel for the defendants submit that Mr. Leroux's testimony indicated that he was acting as an advocate for the plaintiffs. Counsel cites examples of purportedly reasonable propositions that were put to Mr. Leroux with which he did not

agree. Further, prior versions of his report indicated that his opinion was refined after discussions with instructing counsel. Defence counsel notes that the reasoning in White Burgess indicates the expectations with respect to objectivity and impartiality go to both weight and admissibility. [60] While I accept the statements from White Burgess, I am not in a position at this stage of the trial to determine whether the points raised in cross-examination establish anything for arguments that should go to weight or evidence that disqualifies Mr. Leroux from advising the court. Simply put, I am not in a position to exclude from Mr. Leroux's report testimony on the submission of the defendants that he lacked independence. Any such arguments will be made in final argument and will go to weight. [61] In summary, for reasons set out above, I find that the report and testimony of Mr. Leroux are admissible. The voir dire is at an end, but his report and testimony will now be admitted into full evidence. The defendants are at liberty to argue that any of the points raised above go to the weight to be placed on Mr. Leroux's opinion. That is the end of my reasons. "A. Ross J."