



COURT OF APPEAL FOR ONTARIO

CITATION: P.M. Snelgrove General Contractors & Engineers
    Ltd. v. Jensen Building Limited, 2016 ONCA 728

DATE: 20161004

DOCKET: C60051

Feldman, Epstein and Miller JJ.A.

BETWEEN

P.M. Snelgrove General Contractors &
    Engineers Ltd.

Plaintiff (Respondent)

and

Jensen Building Limited
and Madajama Holdings Ltd.

Defendant (
Appellant
)

AND BETWEEN

Jensen Building Limited

Plaintiff by Counterclaim (Appellant)

and

P.M. Snelgrove General Contractors &
    Engineers Ltd. and Paul Snelgrove

Defendants by Counterclaim (Respondents)

R. Steven Baldwin, for the appellant

John R. Crouchman and Kristin Muszynski, for the
    respondents

Heard and released orally: September 27, 2016

On appeal from the judgment of Regional Senior Justice James
    E. McNamara of the Superior Court of Justice, dated January 27, 2015.

ENDORSEMENT

[1]

The appellants complaint is that having found responsibility by both
    the plaintiff and defendant for the failure of the Edwards and Wolfe Springs
    projects to make a profit, the trial judge did not apportion liability for that
    responsibility and award compensation to the appellant.

[2]

The agreement between the parties was that the respondent would be
    entitled to 30 per cent of the profit of each project.  There was no agreement
    regarding responsibility for losses.  Nevertheless, the action was fought on
    responsibility for negligence on the projects that caused the failure to earn
    profit, and in the case of the Wolfe Springs project, a loss.

[3]

The trial judge found no negligence on the Wolfe Springs project.  There
    is therefore no basis for compensation to be awarded.  On the Edwards project,
    the trial judge found that both parties did not meet the onus to prove that
    they were entitled to compensation from each other for the failure to earn a
    profit.  They were both responsible.  On those findings, as the case was
    conducted and based on the contract between the parties, we see no basis to
    interfere or to order a new trial.

[4]

The second issue is whether the trial judge erred by excluding the
    evidence of the appellants expert, Mr. Pratt.  We were told that the
    respondent, having had Mr. Pratts report for a long time, only objected to his
    evidence at trial based on an allegation of failure to be independent.  The
    trial judge then held a
voir dire
and excluded the evidence in reasons
    released with the trial decision.  We agree with the respondent that the trial
    judge was entitled to exclude the evidence of the expert for failure to be
    impartial.  It is a discretionary decision that was open to him, although it is
    rarely done.

[5]

However, we observe that procedurally the better course is for counsel
    to give early notification of any concerns regarding the admissibility of
    expert evidence and a request to the trial judge to render a decision on the
voir
    dire
before continuing the trial.  That would have given counsel the
    opportunity to make any changes to his trial strategy, consequent on the
    exclusion of the experts evidence.  Having said that, it appears that in this
    case, the exclusion of the expert evidence did not affect the outcome.

[6]

The appeal is therefore dismissed with costs fixed at $20,000 inclusive
    of disbursements and HST.

K. Feldman J.A.

Gloria Epstein J.A.

B.W. Miller J.A.


