O'Kane v Lillqvist-O'Kane, 2021 ABQB 925

Court of Queen’s Bench of Alberta Citation: O'Kane v Lillqvist-O'Kane, 2021 ABQB 925 Date: 20211119 Docket: 4801 156228 Registry: Calgary Between: Brian George O'Kane Plaintiff - and - Petra Marja Karita Lillqvist-O'Kane Defendant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice C.C.J. Feasby _______________________________________________________ Introduction [ 1 ] Mr. O’Kane and Dr. Lillqvist were separated in 2011. Since then they have been engaged in litigation over the issues of spousal support and the division of matrimonial property.

These issues are not straightforward because of the complex business affairs of Mr. O’Kane. Mr. O’Kane is in the business of real estate development and owns apartment and condominium buildings through various companies that he controls. The trial of this matter will involve hearing from many witnesses, including multiple expert witnesses on questions of real estate appraisal and business valuation.

[ 2 ] At the outset of the trial, counsel for Dr. Lillqvist objected to seventeen documents Mr. O’Kane proposed to enter into evidence. Each of the documents was created by Mr. O’Kane during the litigation process or for the purposes of the trial. The objections fall into two broad categories: (1) the documents contain impermissible lay opinion; and (2) the documents are inappropriate demonstrative aids. [ 3 ] Objections were also raised to opinions expressed in Mr. O’Kane’s oral evidence. Facts [ 4 ] Counsel for Mr. O’Kane tendered two binders of documents to be entered as exhibits through Mr. O’Kane.

The specific documents objected to by Dr. Lillqvist are set out in the following table. Tab Number Document Title 1 BOK

Summary of 2021 Real Estate Appraisals 2 BOK

Summary of Real Estate Assets owned by BOK, P. Lillqvist, and O’Kane Companies 7 BOK Analysis of Sage Appraisal Reports 8 BOK Response to S. Lawritsen’s Expert Report dated October 4, 2012 9 BOK Response to S. Lawritsen’s Expert Report in Rebuttal dated October 24, 2012 10 BOK Repairs and Maintenance Expense

Summary 11 BOK Repairs and Maintenance Cost Analysis – Greenview Drive (2012-2018) 12 BOK Repairs and Maintenance Cost Analysis – 1630, 1716, 4623, and 1723 (2012-2018) 13 BOK

Summary of Data – Common and Suite 14 BOK

Summary of Expected Costs 16 BOK

Summary of Capital Expenditure Plans for Capital Replacements 32 Equity Analysis 2011-2020 25 Analysis of Transactions in the Books of Brian O’Kane Personal Rentals from 2011-2020 74 BOK Inheritance

Summary 75 BOK Comparison of P. Lillqvist’s Finland/Canada tax returns 2010-2020, and analysis of months worked 2014-2020 82 BOK Review of Disclosure received from P. Lillqvist 91 BOK

Summary of Personal Assets and Liabilities [ 5 ] The document titles in the above table are the titles given to the documents by counsel for Mr. O’Kane. The titles fairly reflect the content of the documents. In addition to seeking to adduce the listed documents, Mr. O’Kane sought to testify on related subjects and as to his views on the work of the expert witnesses retained by Dr. Lillqvist. Law A. Lay Opinion Evidence [ 6 ] An issue in the present case is whether Mr.

O’Kane, as an accountant and someone who is experienced in the real estate business, may, during his testimony, express opinions that stem from his experience and expertise. The general rule is that witnesses may not express opinions. [1] Opinion evidence is admitted by courts under exceptions to the general rule.

Two exceptions are potentially relevant to the present case: (1) the compendious statement of facts exception; and (2) the witness with expertise exception. [ 7 ] The present case raises the question of whether the opinions of a witness who does not seek to be qualified as an expert, but who has professional qualifications relevant to the subject matter of the case, fits under one of these two exceptions. There are two approaches evident in Alberta case law. One approach is exemplified by Dow Chemical Canada ULC v.

Nova Chemicals Corporation [2] and the other is found in Kon Construction Ltd v Terranova Developments Ltd . [3] These cases were decided three weeks apart in the summer of 2015. [ 8 ] The leading case on the admissibility of lay opinion evidence under the compendious statement of facts exception is Graat v R . [4] The Supreme Court of Canada admonished courts faced with lay opinion evidence not to place too much weight on the “tenuous, and frequently false, antithesis between fact and opinion. The line between “fact” and “opinion” is not clear.” [5] The Court went on to

prescribe a principled approach. The Court explained that “[a]dmissibility is determined, first, by asking whether the evidence sought to be admitted is relevant. This is a matter of applying logic and experience to the circumstances of the particular case. The question which must then be asked is whether, though probative, the evidence must be excluded by a clear ground of policy or of law.” [6] [ 9 ] The Court in Graat admitted lay opinion evidence from police officers as to whether the accused was too drunk to drive.

The lay opinion evidence was neither excluded by a clear ground of policy nor law because it fell under what is known as the “compendious statement of facts” exception to the rule against opinion evidence. [7] Under the compendious statement of facts exception, the opinion functions as a shorthand for expressing all of the small facts that are implicit in the opinion.

For example, the conclusion that a person is drunk may be taken to be comprised of the factual observations that an ordinary person would use to conclude that a person was drunk, such as slurred words and a lack of coordination. [ 10 ] Following Graat , leading texts have distilled four criteria for admitting lay evidence under the compendious statement of facts exception that have, in turn, been accepted by courts. [8] Lay opinion evidence may only be accepted if: (1) the lay witness is in a better position than the trier of fact to form the conclusion; (2) the conclusion is one that persons of ordinary experience are able to make; (3) the witness, although not expert, has the experiential capacity to make the conclusion; and (4) the opinions being expressed are merely a compendious mode of stating facts that are too subtle or complicated to be narrated as effectively without resort to conclusions. [ 11 ] The four criteria are sometimes styled the “lay evidence rule.” [9] [ 12 ] The lay evidence rule was applied in Dow Chemical .

The issue in Dow Chemical was whether engineers who operated a large petrochemical facility could provide evidence on the capacity of the plant to produce ethylene at any given time. The evidence offered was based on the experience the engineers acquired in operating the plant. The Court drew a distinction between observed facts, and inferences from observed facts, which are opinions. [10] The Court concluded that the evidence offered by the engineers was lay opinion evidence.

The Court then adopted and applied the four criteria for admission of lay opinion evidence. [11] [ 13 ] The Court explained that one reason for a strict application of the four criteria where a lay witness appeared to have the necessary expertise is that “the challenged opinion is sought to be admitted without compliance with necessary advance notice of the opinion and the qualifications of the expert required by the Rules.

Thus, the issue also becomes one of trial fairness.” [12] [ 14 ] The engineers were permitted only to give evidence about observed facts and evidence where “a common sense inference about productive capability that could be made by an ordinary person can be drawn from the observed facts described by the witness.” [13] The engineers were precluded from giving any evidence based on a “hypothetical premise.” [14] In application, the Court precluded opinions of the engineers on what the capability of the plant “would have been” on a specific day if it had been operating differently.

The key issue for the Court, regarding that evidence, appears to be that the “observations are not inferences from observed facts that an ordinary person could make.” [15] [emphasis added] [ 15 ] Professor Michael Nesbitt, commenting on Dow Chemical , described use of the four criteria in cases where lay witnesses have expertise as “problematic” and said more broadly that, “Canadian courts are splitting hairs to determine whether meaningful evidence can be admitted and in so doing the courts are focusing on technicalities and distinctions rather than the substance of the testimony.” [16] Professor Nesbitt called for a different approach which would involve qualifying lay witnesses as experts.

With this shift, “determining whether to accept and rely on the controversial testimony would centre on the credibility, reliability, probity, and the possible prejudicial value of the evidence – exactly where the focus should be.” [17] [ 16 ] Dow Chemical was recently followed in Questor Technology Inc v Stagg . [18] The issue in Questor Technology was whether portions of an affidavit by an engineer employed by the plaintiff, that described a method of developing a piece of equipment called a “combustor” and the type of records the engineer expected to be generated in the development of the equipment, were lay opinion and should be struck out.

The Court accepted the statement of the law on lay opinion evidence in Dow Chemical as correct, but nevertheless found the engineer’s evidence admissible. The Court found that the engineer was “best placed with personal knowledge of her past patent filings to form a conclusion based on her experience.” [19] [ 17 ] The Court in Questor Technology appears to have applied the four criteria for accepting lay evidence differently than the Court in Dow Chemical .

First, the Court in Questor Technology did not take a strict approach to the fact/opinion distinction. [20] Second, the Court did not take a literal approach to the opinion evidence having to be a conclusion that persons of ordinary experience are able to make. Instead, it concluded that the engineer’s experience suited her to give the evidence.

Third, the Court stretched the definition of compendious statement of facts to apply to opinions arising from the engineer’s experience with patent filings on the basis that such evidence was “too subtle or complicated to otherwise be narrated effectively.” [21] [ 18 ] The contrast between the strict application of the four criteria for admitting lay opinion evidence in Dow Chemical and the more lenient application of the four criteria in Questor Technology , raises the question whether the four criteria are useful in the context of business litigation where witnesses have professional qualifications and are asked to testify about their actions which cannot be

separated from their professional judgment. Neither the opinions of the engineer running the ethylene plant in Dow Chemical nor the engineer involved with patent filings for combustors in Questor Technology were opinions that persons of ordinary experience could form; the opinions were dependent on their expertise. [ 19 ] Some courts have exhibited flexibility in admitting lay opinion evidence in business contexts.

For example, the Ontario Court of Appeal in Landmark II Inc v 1535709 Ontario Limited had an opportunity to consider the issue of lay evidence in a construction lien claim. [22] The property owner called evidence from the construction contractor who completed the work left unfinished by the lien claimant. The value of construction work completed is in no way a conclusion that persons of ordinary experience are able to make. Nevertheless, the Court accepted the new construction contractor’s estimate of the value of the work completed by the lien claimant.

Laskin JA, writing for the Court, observed that “lay opinion evidence from an experienced contractor is commonplace” in construction lien actions. [23] Unfortunately, the Ontario Court of Appeal dealt with the issue in a conclusory way rather than providing a principled explanation for its approach.

We are left to guess as to the Court’s reasons for admitting the lay opinion evidence. [ 20 ] A similar situation to that considered by the Ontario Court of Appeal in Landmark II is seen in the Alberta case Royal Bank of Canada v W Got & Associates Electric Ltd . [24] McDonald J. in Royal Bank allowed the lay opinion evidence of a contractor hired by a receiver to complete work on several construction projects. The contractor provided opinions as to whether jobs would be profitable, how much work remained to be done and what the remaining work would cost.

McDonald J. noted that the Law Reform Commission of Canada recommended an Evidence Code in its Report on Evidence 1975. The proposed Evidence Code provided as follows: 67. A witness other than one testifying as an expert may not give an opinion or draw an inference unless it is based on facts perceived by him and is helpful to the witness in giving a clear statement or to the trier of fact in determining an issue. [25] [ 21 ] McDonald J. went on to conclude that, “the ultimate rationale of admitting the evidence of non-expert opinion is as stated in the proposed s 67.

I accept that rationale ought to be applied as the present law in Alberta relating to the admissibility of non-expert opinion evidence.” [26] Accordingly, McDonald J. admitted the evidence because he concluded that it was helpful to him in determining an issue. [27] [ 22 ] The Alberta Court of Appeal in Kon Construction Ltd considered a situation where information was compiled from invoices and surveys and analyzed with a computer program to produce two documents that purported to show that the construction company had done the work required under the contract.

The witnesses who were called to introduce the documents into evidence were not sought to be qualified as experts. The Court of Appeal explained that the witnesses “fall in a gray area. They are “expert witnesses” in the sense that they have expertise.” [28] One was an engineer and the other was a surveyor.

The Court of Appeal explained that “[t]hey were witnesses because they were involved in the very events that gave rise to the litigation, not because they had been hired as ‘expert witnesses’ to provide objective, external evidence to assist the Court.” [29] [ 23 ] The Court of Appeal explained that there are three categories of “witnesses with expertise”: (1) independent experts retained to provide opinions to the court, but who were not involved in the underlying events; (2) witnesses with expertise who were involved in the underlying events, but who are not litigants; and (3) litigants (including the officers and employees of corporate litigants) with expertise. [30] The first category of witnesses with expertise is what is expressly contemplated in the White Burgess and Mohan framework for evaluating the appropriateness of expert evidence. [31] [ 24 ] The Court of Appeal explained that the third category, litigant-witnesses with expertise, do “not fall neatly into the White Burgess and Mohan analysis.” [32] The Court of Appeal further explained that litigant-witnesses have a right to testify and “generally they will have the most direct and relevant evidence about the issues.

The truth finding function of a trial requires that their evidence be received. Since they were often only involved in the underlying events because of their expertise, it makes no sense to hold that they cannot explain why they acted as they did, if they stray into their expertise. Their opinions explain why they acted as they did.

Since these witnesses are available for pre-trial questioning, formal advance notice of their opinions or their evidence is not needed.” [33] Justice Renke explained that the Alberta Court of Appeal’s category of “litigant-witnesses with expertise” is analogous to the concept of a “participant expert” in Ontario. [34] [ 25 ] Our Court of Appeal’s decision in Kon Construction Ltd cannot be taken to give a litigant-witness with expertise license to opine on all matters at issue in a trial. The opinions that may be offered must only relate to the matters with which the witness was personally involved.

In addition, while concerns about impartiality are set aside when considering the admissibility of the opinion evidence of a litigant-witness with expertise, the other criteria that inform the admissibility of expert opinion cannot be set aside.

The opinion evidence must still be relevant and necessary. [35] The probative value of the opinion evidence must outweigh its prejudicial effect. [36] These safeguards ensure that only appropriate evidence is admitted, thereby protecting the integrity of the trial process. [ 26 ] Just because the door has been opened by the Court of Appeal to admitting lay opinion evidence from litigant-witnesses with expertise, this does not mean that this evidence is entitled to be put on an equal footing with the evidence of independent experts or given any weight at all.

The partisan perspective of the litigant-witness with expertise may colour the opinions offered and a Court should not accept such opinions uncritically. How much weight should be accorded the opinions of litigant-witnesses with expertise is to be determined on a case-by-case basis. B. Demonstrative Aids [ 27 ] The use of demonstrative aids or demonstrative evidence is increasingly common in trials with voluminous documentary evidence. Often, lay witnesses seek to testify with the aid of a

summary table, chart, graph, or other illustration. Experts now routinely present their evidence with the aid of Powerpoint or some other presentation software. Done correctly, demonstrative evidence can

simplify complex matters and be helpful to the Court. [ 28 ] Demonstrative evidence, however, poses risks to the integrity of the trial process. Demonstrative evidence can portray a false simplicity; it can misrepresent facts; and it can sometimes be thinly disguised advocacy. Accordingly, Courts must be cautious in allowing the use of this type of evidence.

Speaking of one kind of demonstrative evidence, experiment evidence, Charron JA, as she then was, explained that relevant demonstrative evidence “should generally be admitted, subject to the trial judge’s residuary discretion to exclude the evidence where the prejudice that would flow from its admission clearly outweighs its value.” [37] [ 29 ] The Alberta Court of Appeal observed in R v Iyamuremye that “[t]he real world we live in recognizes that there can be reliable and impartial collations or compilations of evidence that merely repeat the source of evidence without editorial.

Such aids may well help a trial judge with what a jury charge is supposed to do, namely to decant and simplify the evidence and the law related to it.” [38] The Court of Appeal went on to caution that “an evidentiary aid may in some cases venture into an interpretive analysis and thereby a form of opinion evidence.” [39] [ 30 ] Two additional concerns beyond the demonstrative aids containing inappropriate opinion have been raised in this case. First, the demonstrative aids are said to be replete with advocacy. This is a legitimate objection.

The Ontario Superior Court held in R v Kanagasivam that “[d]emonstrative or illustrative aids in the form of summaries or otherwise admissible and admitted evidence are not meant to be tools for advocacy or to paint a picture of one party’s position.” [40] Second, the demonstrative aids are said to be tantamount to scripts for the witness, contrary to the rule against leading a witness in direct examination. This is also a legitimate objection.

Absent any suggestion that the witness requires his memory to be refreshed, a document that maps out testimony undermines the normal mode of adducing evidence. [ 31 ] Justice Conlan in Woods v Jackiewicz reviewed the case law and leading texts and distilled seven principles that apply to demonstrative evidence: (

i) demonstrative aids are not evidence in the strict sense of that word but rather tools to help the trier of fact better understand or remember a witness’ evidence; (ii) demonstrative aids must be fair and are not intended to be a form of advocacy akin to a closing address, for example; (iii) to be admissible, the demonstrative aid must be probative, and that value must outweigh its potential prejudicial effect; (iv) further, the demonstrative aid, to be admissible, must be found to accurately and truly represent the facts that it purports to reflect, and it must not be misleading, and it must be authenticated by a person qualified to do so; (

v) the demonstrative aid must also be necessary in the sense that it cannot be a mere redundancy of something verbalized by the witness in the box and which is readily understandable to the trier of fact; (vi) we must be cautious to avoid oversimplification of technical evidence through the use of a demonstrative aid; and (vii) there is a heightened risk of misuse of a demonstrative aid where the trier of fact is a jury. [41] [ 32 ] Justice Conlan’s seven principles are consistent with the law on demonstrative aids in Alberta. Analysis A. Lay Opinion [ 33 ] Mr.

O’Kane was qualified as an accountant in Australia and Canada. Whether or not he remains qualified to practice as an accountant at the time of trial is unclear from the evidence. Nevertheless, it is clear that Mr. O’Kane possesses accounting expertise particularly in relation to the real estate business. Mr. O’Kane keeps the books and is intimately involved in every aspect of his real estate business. He is a litigant-witness with expertise. [ 34 ] As a litigant-witness with expertise, it is unreasonable to expect that Mr. O’Kane will be able to neatly separate facts from opinion in giving his evidence.

This is especially the case where allegations have been made against him that the accounting records that he prepared are incorrect. Mr. O’Kane’s opinions about the accounting for his real estate business are relevant and necessary. In other words, these opinions have probative value. The prejudicial effect of these opinions is low because Dr. Lillqvist’s expert witness not only addresses the alleged accounting issues, his reports are the source of many of the allegations. [ 35 ] Mr. O’Kane must be afforded some latitude in giving his evidence.

With that said, his opinion evidence must be limited to the matters with which he was involved and for which he has some expertise; namely, the accounting records for his real estate business. Mr. O’Kane’s evidence crosses this line when he comments directly on the methodology and conclusions of Dr. Lillqvist’s expert witnesses. [ 36 ] Mr. O’Kane makes two types of criticisms of Dr. Lillqvist’s expert witnesses. First, he alleges that they made factual errors. Second, he alleges that they have erred in their methodology or conclusions. Mr. O’Kane is permitted to identify the facts in the reports of Dr.

Lillqvist’s experts that he believes are incorrect and offer his own evidence on those points; these disputed facts relate to the accounting of the real estate business. Mr. O’Kane is not permitted, however, to debate the methodology or conclusions of the experts. For example, Mr. O’Kane took issue with the capitalization rates used by Dr. Lillqvist’s expert. Mr. O’Kane’s opinions on the methodology and conclusions of Dr. Lillqvist’s experts are unnecessary and of little probative value. Mr. O’Kane has engaged his own experts to prepare reports responding to Dr. Lillqvist’s experts. Given that Mr.

O’Kane’s experts will be opining on the work of Dr.

Lillqvist’s experts, it is unnecessary to hear Mr. O’Kane’s opinion evidence on the subject. B. Demonstrative Aids [ 37 ] When Dr. Lillqvist first objected to the use of demonstrative aids, Mr. O’Kane was given an opportunity to review the documents objected to and to revise them to remove inappropriate opinion and advocacy. This opportunity was afforded to Mr. O’Kane with no assurance that the changes would address the concerns of the Court. Mr. O’Kane revised some of the documents and provided the revised versions through his counsel.

The following conclusions on the admissibility of the demonstrative aids are based on and apply to the revised documents. [ 38 ] The proposed demonstrative aids in this case fall into four categories: (

a) commentary on expert reports; (

b) explanatory memoranda; (

c) tables and spreadsheets; and (

d) other records. (

i) Commentary on Expert Reports [ 39 ] Tab 7, Analysis of Sage Appraisal Reports, is not admitted. The document contained advocacy and opinions on the methodology and conclusions of the expert real estate appraisers. Counsel for Mr. O’Kane conceded that this document was not appropriate evidence. [ 40 ] Tabs 8 and 9 which comment on the reports of Mr. Lawritsen, Dr. Lillqvist’s expert, are only admitted by reason of an agreement between the parties. Dr. Lillqvist withdrew her objection to Tabs 8 and 9 conditional on Mr. O’Kane agreeing that Mr.

Lawritsen would have an opportunity to provide a written response to Tabs 8 and 9. Mr. O’Kane, through his counsel, agreed that Mr. Lawritsen could provide a written response. Absent the agreement between the parties, Tabs 8 and 9 would not have been admitted. (ii) Explanatory Memoranda [ 41 ] Tabs 10, 11, 12, and 25 are memoranda that purport to explain expenses that appear on the books of Mr. O’Kane’s real estate business. Tabs 10, 11, and 12 pertain to repair and maintenance expenses while Tab 25 pertains to personal expenses.

The last ten pages of Tab 25 (pp 0282-0291) are tables and spreadsheets and will be discussed separately. [ 42 ] Mr. O’Kane explained that he prepared these memoranda to explain the entries in his books and records to the expert witnesses. He said that he did this because he was directed to do so by the Court. The pre-trial orders and transcripts show that the Court was directing Mr. O’Kane to provide disclosure of all of his personal and corporate financial information so that his income could be properly assessed, first by the court-appointed expert and later by Dr. Lillqvist’s expert.

The thrust of the Court’s direction appears to be consistent with Cunningham v Seveny where the Court of Appeal noted, in the context of determining income for child support, that there is an “obligation to provide a reasonable explanation for expenses.” [42] [ 43 ] Dr. Lillqvist takes issue with Mr. O’Kane’s position that the memoranda were prepared at the Court’s direction and points out that the memoranda have been changed or updated since they were provided to the experts. It is unnecessary to decide these points. The memoranda are essentially summaries or scripts of the evidence that Mr.

O’Kane wishes to give to the Court. Even if these memoranda were prepared in the first instance as part of Mr. O’Kane’s financial disclosure, that does not mean that they are automatically admissible evidence at trial. The underlying financial data was all provided to the parties’ experts and is available to be entered as exhibits at trial. To accept memoranda explaining this information when a witness is capable of giving that same evidence from the witness stand in the conventional manner, is not appropriate.

Tabs 10, 11, 12, and the first 19 pages of Tab 25 are not admitted. [ 44 ] Tab 16 is a different kind of explanatory memorandum. Tab 16 purports to introduce and explain the methodology used in the capital expenditure plans for the various properties found at Tabs 17-23. The capital expenditure plans have no need of an explanatory memorandum as they are self-explanatory and each feature an “Executive

Summary”. Tab 16 is not admitted. (iii) Tables and Spreadsheets [ 45 ] Tabs 1, 2, 13, 14, 32, 74, and the last ten pages of Tab 25 (pp 0282-0291) are all tables or spreadsheets that purport to present information from underlying accounting records. None of these tables or spreadsheets contain commentary that could be viewed as opinion, advocacy, or a script for the witness. This type of demonstrative aid is an appropriate companion to oral testimony and is in no way a substitute for the same.

These records are admitted on the basis that they appear, at this preliminary stage, to be helpful to the Court. [ 46 ] Dr. Lillqvist submits that the tables and spreadsheets should not be admitted because they are misleading as Mr. O’Kane has revised the underlying accounting data. Whether or not this is true cannot be known until after Mr. O’Kane has been cross-examined. While the tables and spreadsheets are admitted, they are admitted as demonstrative evidence; not real evidence. Demonstrative evidence is only as good as the underlying evidence it purports to represent.

If the tables and spreadsheets are shown to be misleading or otherwise unreliable through cross-examination, they will be disregarded. (iv) Other Documents [ 47 ] Tab 75 is an analysis of Dr. Lillqvist’s Canadian and Finland tax returns prepared by Mr. O’Kane. As set out above, as a litigant-witness with expertise, Mr. O’Kane is permitted to express opinions only on matters with which he was personally involved and had relevant expertise. In this case, this is limited to the accounting for his real estate business. Mr. O’Kane is not at liberty to perform a free-standing analysis of Dr.

Lillqvist’s tax returns as that is not something that he was personally involved with and is clearly a matter

for an independent expert witness. Tab 75 is not admitted. [ 48 ] Tab 82 is an analysis of Dr. Lillqvist’s financial disclosure, including her bank records, prepared by Mr. O’Kane. The problems with Tab 82 are the same as the problems with Tab 75. The documents analyzed by Mr. O’Kane are outside his personal experience and not something that he is permitted to opine on. Dr. Lillqvist’s financial disclosure is a subject that may be addressed by the expert witness retained by Mr. O’Kane. Tab 82 is not admitted. [ 49 ] Tab 91 is a table, prepared by Mr. O’Kane, that compares the conclusions arrived at by Mr.

O’Kane’s expert and Dr. Lillqvist’s expert as to Mr. O’Kane’s personal assets and liabilities. As with Tabs 75 and 82, a comparison of the conclusions of the experts in this case is beyond the scope of Mr. O’Kane’s permissible opinion. Not only that, it is clearly advocacy. A comparison of expert conclusions is something that may be appropriate as a demonstrative aid in testimony given by one of the experts or might be seen in the written submissions of counsel at the conclusion of a trial; it is manifestly inappropriate for use in the testimony of a lay witness. Tab 91 is also not admitted.

Conclusion [ 50 ] The fact that Mr. O’Kane is permitted to express some opinion and use some of the disputed demonstrative aids should not obscure the fact that his approach to presenting his evidence is out of step with normal trial practice. The inevitable objections that have arisen to Mr. O’Kane’s evidence have significantly slowed the progress of this trial. The objective of these reasons is to clearly demarcate what is appropriate evidence and what is not appropriate evidence so that Mr. O’Kane’s testimony may be completed in a fair and efficient manner.

Heard on the 15 th , 16 th , 17 th and 18 th days of November, 2021. Dated at the City of Calgary, Alberta this 18 th day of November, 2021. C.C.J. Feasby J.C.Q.B.A. Appearances: V.A. (Bud) MacDonald, Q.C. for the Plaintiff Peter G. Wells for the Defendant