5.34: Service of expert’s report
8.17: Proving facts
8.4: Trial date: scheduled by court clerk
13.25: Use of filed affidavits

Case Summary

The Plaintiff had transferred an apartment building to the Defendant pursuant to a real estate purchase contract. The purchase price was $78,000.00. The Plaintiff also provided the Defendant funds to renovate the apartment building. The Defendant had not paid anything to the Plaintiff. The contract was signed in January 1999, and the transfer was signed in February 1999 and registered in April 1999. The Plaintiff registered caveats on the title for the apartment building in 2000 and 2001 as a result of the Defendant’s failure to pay. The Plaintiff’s counsel sent correspondence to the Defendant demanding payment and eventually commenced this litigation on July 5, 2007, leading to this Trial.

There were a number of evidentiary issues leading up to and during the Trial. The first of these was regarding the testimony of a realtor that was proposed as an expert witness by the Plaintiff. Form 25 was filed, however there was no expert report provided — Justice Renke found that the documentation provided did not satisfy Rule 5.34(a) or Form 25. The information and assumptions upon which the expert’s opinion was based were not described and no summary of the expert’s opinion was provided. This undermined the ability of opposing counsel and the Court to evaluate the opinion. Secondly, the Form 25 that was provided was dated December 7, 2020, shortly before the Trial commenced that month. Pursuant to Rules 8.4(2) and 8.4(3)(c), an expert report should have been provided before the matter was set down for Trial. Accordingly, Justice Renke did not allow the expert to testify during Trial.

The 86-year-old Plaintiff applied under Rules 8.17 and 13.25 for his evidence in chief to be provided by way of an Affidavit sworn in 2007, closer to the time the events took place. The grounds for the Application were that the Plaintiff was elderly, and it took considerable time for him to listen to and to answer questions. Justice Renke denied the Application. The Court noted that as a matter of principle, the general rule is that evidence at Trial is provided orally rather than in recorded or written form. This is reflected by the opening words of Rule 8.17 which state that “A fact to be proved at trial by the evidence of a witness must be proved by questioning the witness in open court”. During the Trial, as the Plaintiff testified in chief, it was clear that his memory was failing him, and he was not responsive to questions. Justice Renke revisited the issue of the admissibility of the Affidavit and, relying on the “principled exception” to the hearsay rule, admitted the Affidavit. The Plaintiff was still cross-examined.

Ultimately, Justice Renke found that the Plaintiff’s claims regarding payment for the apartment building and amounts that they advanced for renovations to be statute-barred and unenforceable.

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