




COURT OF APPEAL FOR ONTARIO

CITATION: 1162740 Ontario Limited v. Pingue, 2017 ONCA 52

DATE: 20170124

DOCKET: M46799 (C59933)

Feldman, Lauwers and Miller JJA.

BETWEEN

1162740 Ontario Limited, Joseph Pingue, and Sabatino
    Pingue Jr.

Plaintiffs
    (Respondents)

and

Venanzio Pingue,
    2077626 Ontario Inc. and 912618 Ontario Limited

Defendants (Appellants)

Ryan Wozniak, for the appellants

Hari Nesathurai and Glen M. Perinot, for respondents

Heard in writing: November 18, 2016

Lauwers J.A.:

[1]

This procedural appeal from the decision of a chambers judge addresses
    the optimal way to construct the trial record. On the appeal proper, the appellants
    wish to challenge the trial judges decision to exclude certain expert evidence
    they assert was necessary to establish their defence to the respondents claim
    for misappropriation of funds. When they attempted to file an appeal book that
    contained the excluded expert evidence, the respondents moved before a single
    judge of this court, sitting in chambers, to excise those materials. The
    chambers judge ordered:

The expert reports that were not admitted before the trial
    judge are to be removed from the appeal book and compendium.  Counsel may bring
    a motion in writing to the panel to admit further evidence if so advised.

The appellants now move before this panel under s. 7(5)
    of the
Courts of Justice Act
,

R.S.O. 1990, c. C.43
to
    set aside the decision of the chambers judge.

[2]

I would set aside the chambers order largely on the basis that the
    excised material should properly have been in the trial record. It is necessary
    for the panel to consider on the appeal.

A.

The Factual and Procedural Context

[3]

The appellant, Venanzio Pingue, was involved with his brother, Sabatino
    Pingue, and his first cousin, Joseph Pingue, in the operation of an apartment
    building in St. Catharines, Ontario owned by the respondent, 1162740 Ontario
    Limited (116).

[4]

In a nutshell, the respondents sued the appellants for misappropriation
    of funds generated by the operation of the apartment building. The trial judge
    gave judgment in favour of the respondents, and her lengthy reasons are
    reported at 2014 ONSC 7418. The trial took 40 days.

[5]

In assessing whether funds were misappropriated, and in what amount, the
    trial judge relied, at para. 195, on the evidence of Robert Forsyth, whom she qualified
    as an expert in the area of forensic accounting and statistics. Mr. Forsyth
    prepared two reports, one completed in June 2011, and the other in September
    2011. His September 2011 report was provided to the appellants well before the
    trial started. A number of the schedules from Mr. Forsyths September report
    were made exhibits at trial, but the whole report was not.

[6]

The trial judge gave great weight to Mr. Forsyths evidence, noting at
    para. 250:

Mr. Forsyth testified that he had in excess of 15,000 documents
    to review and consider. Without his assistance, I cannot imagine how the court
    would be able to digest, analyze, review or compile 10 years of financial
    statements of 116 and the defendants' related companies. I have found Mr.
    Forsyth's evidence to be invaluable in this regard.

B.

The Trial Judges Ruling

[7]

Towards the very end of the case for the defence and of the trial, the
    appellants moved under rr. 53.03 and 53.08 of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194 for an order: (1) abridging the time for service of the
    report of a forensic accounting expert, Charlotte Urquhart; (2) granting leave
    to admit her report; and (3) permitting her to give evidence at the trial. I
    note that the appellants did not tender a copy of Ms. Urquharts report as part
    of the motion material.

[8]

The trial judge explained the development of the expert evidence in the
    case, at paras. 245-246:

After a judicial pretrial in 2010, it was recommended that the
    parties obtain an expert report to assist the court in quantifying the monies
    the plaintiffs allege Venanzio misappropriated.

In September 2010, the plaintiffs' solicitor retained Robert
    Forsyth, a forensic accountant, to prepare such a report. The defendants
    retained Darren Chapelle, but in time, Mr. Chapelle questioned his independence
    and the defendants took no further steps to retain another expert until well
    after the commencement of trial. In a written ruling released May 1, 2014, the
    court refused to permit the late filing of this report.

[9]

The trial judge dismissed the motion on the basis that it was too late:
    Prejudice to the plaintiffs is real. She stated, at para. 18: Permitting the
    filing of the report and/or the calling of Ms. Urquhart would for all intents
    and purposes start a second trial. To grant the motion would cause real
    prejudice that cannot be compensated for by way of an adjournment, an order for
    costs, or any other terms.

[10]

The trial judges ruling is directly challenged on the appeal.

C.

The Primary Ground of Appeal

[11]

The primary ground of appeal raised by the appellants on the appeal is
    that the trial judge: erred in refusing to grant them leave to call Ms. Urquhart
    as a witness at trial. They assert that, had she permitted Ms. Urquharts
    evidence to be led, the trial judge would have found that Venanzio did not, in
    fact, misappropriate any of 116s funds.

[12]

The appellants attempted to file an appeal book that contained Mr.
    Forsyths September report, which had not been made an exhibit at trial in its
    entirety, and the proffered expert report of Ms. Urquhart. The respondents
    moved successfully before the chambers judge for an order excising these
    documents because they were not marked as exhibits by the trial judge.

[13]

I would set aside the chambers order. Unless the excised documents are
    before the panel on the appeal, it will be difficult, if not impossible, for
    the appellants to argue the merits of their main ground of appeal.

D.

A Purposive Approach to Assembling a Trial Record

[14]

The goal of a trial judge in supervising the assembly of a trial record
    is completeness and accuracy, so that the panel of this court sitting on the
    appeal can discern without difficulty exactly what was before her at any moment
    in the course of the trial.

[15]

With respect to document management in particular, relatively little is
    prescribed by the
Rules of Civil Procedure
.  Trial practices have
    emerged to assist judges, but they are not universally or consistently followed:
    see generally Michelle Fuerst and Mary Anne Sanderson,
Ontario Courtroom
    Procedure
,

4th ed.
    (Markham: LexisNexis, 2016), at p. 318, 325, and 328.

[16]

In these reasons, I comment on two areas of lingering difficulty that
    affect this appeal: expert reports and motion materials.

[17]

Throughout, I draw a distinction between numbered exhibits, which are
    governed by r. 52.04 of the
Rules of Civil Procedure,
and lettered
    exhibits, which are documents marked for identification:
Ontario
    Courtroom Procedure
, at p. 318, 325,
    and 328
. The distinction is important because, subject to the trial
    judges discretion, the jury has access to the numbered exhibits, but not to
    the lettered exhibits: see
Ontario Courtroom Procedure
, at p. 759-760.

E.

Expert Reports and the Trial Record

(1)

The Practice

[18]

Rule 53.03 of the
Rules of Civil Procedure
sets out the requirements
    for expert reports. By the time the trial starts, counsel will ordinarily have
    had copies of the experts reports from all parties for some time.

[19]

Although expert reports are exchanged and form the basis for
    examination-in-chief and cross-examination at trial, the expert evidence before
    the trial court is usually the
viva voce
evidence of the expert, and
    not the report the expert provided before trial: see
Ontario Courtroom
    Procedure
, at p. 1004-1005.
There is an exception, which relates to the reports of practitioners under the
Regulated
    Health Professions Act, 1991
, S.O. 1991, c. 18, the
Drugless Practitioners
    Act
, R.S.O. 1990, c. D.18 and other similar legislation in Canada, whose
    reports are governed by s. 52 of the
Evidence Act
, R.S.O. 1990, c. E.23
: see
Ontario
    Courtroom Procedure
, at p. 1004-1005;
    and
Iannarella v. Corbett
,
    2015 ONCA 110, 124 O.R. (3d) 523, at para. 131.

[20]

In civil jury trials, when an expert witness is called to testify and
    after the witness has been qualified for that purpose, the party calling the
    witness usually provides a copy of the experts report to the trial judge.
    Often chunks of expert reports are effectively read into the record by the
    expert or are extensively paraphrased. Having a copy as an
aide memoire
enables the trial judge to follow along with the evidence, maintain good notes,
    and to deal expeditiously with questions of admissibility that might arise,
    such as whether the witness is impermissibly straying beyond the subject of the
    report. Having a copy also assists the trial judge in the preparation of the
    jury charge, and the reasons for decision.

[21]

It is common practice for an expert report tendered by counsel to be marked
    as a lettered exhibit by the trial judge. That way the report will form part of
    the trial record, but will not be available to the jury in its deliberations: see
Ontario Courtroom Procedure
, at p.
    1004; and

Moore v. Getahun
,
2015 ONCA 55, 124 O.R. (3d) 321, at para. 86, leave to
    appeal refused, [2015] S.C.C.A. No. 119.

[22]

In non-jury civil trials expert reports are sometimes made numbered
    exhibits on consent. The practice in the Toronto Commercial List, for example,
    is for such reports to be made numbered exhibits.

[23]

The practice of making expert reports numbered or lettered exhibits is
    essential to the construction of a complete trial record for appeal purposes.
    There should be no reluctance on the part of counsel or trial judges to doing so.

[24]

I pause to note that the judicial act of accepting any document as a
    numbered exhibit under r. 52.04, or of converting a lettered exhibit into a
    numbered exhibit, has only a limited effect. Consider the example of a document
    that was marked for identification as a lettered exhibit. By later converting a
    lettered exhibit into a numbered exhibit, the trial judge is doing no more than
    asserting she is satisfied that the document is relevant to a fact in issue in
    the proceeding and has a sufficient measure of authenticity, usually provided
    by a witness, to warrant its inclusion in the trial record as an exhibit.

[25]

I use the expression, a measure of authenticity, to
    indicate that there are degrees of authenticity. I
t is important for the trial judge and counsel to clarify the extent to
    which the authenticity of a particular document is accepted.

Taking
    a cue from r. 51.01 of the
Rules of Civil Procedure
,

and using its definition of authenticity, the trial judge and counsel
    must still consider the following questions:


(a) Was a document that is said to be an original printed,
    written, signed or executed as it purports to have been?

(b) Was a document that is said to be a copy a true copy of the
    original? and

(c) Where the document is a copy of a letter, telegram or
    telecommunication, was the original sent as it purports to have been sent and
    received by the person to whom it is addressed?

[26]

The fact that a document is accepted as sufficiently authentic in some
    aspect of these particulars to warrant being made an exhibit under r. 52.04
    does not mean that its ultimate authenticity or reliability has been decided.
    Any dispute about authenticity or reliability must be resolved on independent
    evidence and decided by the trier of fact. Nor does merely making a document a
    numbered exhibit mean that its hearsay content is admitted. I am quick to add
    that nothing prevents the parties from making such an admission or the trial
    judge from determining that the hearsay content is admissible where that is
    disputed.

[27]

These concepts apply with necessary modifications to expert reports that
    are made numbered exhibits.

(2)

The Record in this Case

[28]

The trial judge did not mark Mr. Forsyths report for identification as
    a lettered exhibit, and did not make the report an exhibit, because opposing
    counsel did not consent. However, had the common practice been followed by the
    trial judge in this case, the trial record would be complete and this court would
    not be obliged to speculate on what she had before her. Let me explain.

[29]

Glen M. Perinot, counsel for the respondents on the appeal, filed an
    affidavit in the motion record before this panel in which he advises that
    Joseph Pingue told him: neither the expert reports of Robert Forsyth nor
    Charlotte Urquhart were before the trial judge. Mr. Perinot also deposes that
    he spoke to trial counsel, Mr. Douglas, who advised him that Mr. Forsyths June
    report and his September report were never before the trial judge, nor was
    Ms. Urquharts report, which was dated February 19, 2014. Mr. Perinot adds that
    Mr. Douglas told him: That although copies of the expert reports of Robert
    Forsyth were exchanged between Mr. Douglas and Mr. Timothy Pedwell, the
    lawyer for the defendants at trial, no copies of Mr. Forsyths expert reports
    were delivered to the trial judge.

[30]

In the motion before the chambers judge, trial counsel Mr. Douglas
    provided an affidavit to the same effect.

[31]

However, I am somewhat uncertain as to whether the trial judge had
    physical possession of a complete copy of the September 2011 report or only the
    schedules to it. I am similarly uncertain whether she had a copy of the June
    2011 report or only the schedules to it. My uncertainty arises from the
    exchanges in the transcript.

Examination-in-chief

[32]

Mr. Douglas began his examination-in-chief of Mr. Forsyth in the October
    23, 2013 transcript by proposing that his September report and the schedules be
    made exhibits. The report consisted of 20 pages of text and about 44 pages of
    schedules. As noted, the trial judge refused to make it an exhibit unless on
    consent, which, inexplicably, was not forthcoming.

[33]

Mr. Forsyth was examined in chief on the September report, and his
    attention was drawn to specific parts of it. He had the report in his hands
    during his examination-in-chief. As the transcript shows, from time to time the
    trial judge interjected in an informed manner, in an effort to keep on track.
    The witness went through the schedules to the September report, and it is quite
    plain from the discussion that the trial judge had a copy of at least the
    schedules to the report.  Following the examination-in-chief, the schedules
    collectively were made Exhibit 12, as noted at p. 110 of the transcript.

Cross-examination

[34]

Mr. Forsyths cross-examination began on October 24, 2013, and continued
    on December 9, 10, 11, 17 and 18, 2013. The cross-examination focussed
    initially on the schedules to the September report, but there are occasional
    references to the text of the report. In the course of resumed cross-examination
    on December 9, 2013, Mr. Pedwell wished to draw Mr. Forsyths attention to his
    June report, which he had not brought to court. The exchange shows that the
    trial judge had physical possession of both reports, although perhaps she only
    had the schedules. There was a search for the June report. The trial judge
    first turned up a copy of the September report, and then a copy of the June
    report, which she offered to share with the witness.

Observations

[35]

With respect, it should not be necessary for an appeal court to pick
    through the pages of a transcript in order to ferret out precisely what the
    trial judge had before her in documentary form at any particular moment in
    time. This is why marking expert reports as numbered or as lettered exhibits for
    identification is the preferred practice.

[36]

In my view, every document or thing put to a witness or to the trial
    judge as a piece of evidence should be made a numbered or lettered exhibit. I
    would also add this: although trial judges have discretion in whether to mark as
    exhibits, out-of -court statements that are used solely to impeach the
    credibility of a witness, for the same reasons the best practice is to mark
    such statements as lettered exhibits for identification, if not as numbered
    exhibits:
Ontario Courtroom Procedure,
at p. 945-946; and
R. v. Betker
,
[1997] O.J. No. 1578, 115 CCC (3d) 421
    at 430 (C.A.).

(3)

Trial Motion Materials

[37]

I focus here on formal motions that are brought at trial with motion
    records, affidavits, and exhibits. In this case, I understand that the formal motion
    material was put to the trial judge on the motion seeking leave to have Ms. Urquhart
    provide expert evidence. I also understand that counsel had with him a copy of Ms.
    Urquharts report, which had been provided to opposing counsel, but he did not
    tender it to the trial judge as part of the motion material.

[38]

In my view, the motion material ought to have formed part of the trial
    record. Further, it was incumbent on the trial judge to request a copy of the
    proffered experts report to be marked as a lettered exhibit for identification,
    so that this court would have access to it in the event the trial judges
    ruling was challenged on appeal.

[39]

Finally, I make an observation, in passing, on document briefs, since
    similar themes arise with respect to them. It is common practice for the
    parties in civil actions to agree upon and tender a tabbed and organized document
    brief at the beginning of trial. This practice is convenient and allows for a
    reasonably orderly development of the evidence.
Ontario Courtroom Procedure
notes, at p. 333: For most documents there are no real evidentiary
    issues. They should be filed on consent.

[40]

However, it is necessary for counsel
    to clarify to the court and to each other the extent to which the authenticity
    of each document in the proffered document brief is accepted, as noted at para.
    25 of this decision.

If,
    as is too often the case, counsel has not done so, it is the trial judges
    responsibility to get the requisite clarity when the documents are made
    exhibits, especially concerning a documents hearsay content. This court is in
    no position to resolve such issues on appeal: see
Kiskadee
    Ventures Limited v. 2164017 Ontario Ltd.
,
    2016 ONCA 955, at para. 19.

[41]

By following these general practices, confusion about the record at
    trial and on appeal can be avoided.

F.

Disposition

[42]

I would set aside the order of the chambers judge and give leave to the
    appellant to file an appeal book that includes the material the chambers judge
    ordered to be excised. The material must be clearly marked. I would reserve the
    costs of this motion to be determined by the panel hearing the appeal.

P. Lauwers J.A.

I agree K. Feldman
    J.A.

I agree B.W. Miller
    J.A.

Released: January 24, 2017

K.F.


