2024 QCCS 446, 2024 QCCS 446

Aliments Pizza Base Italia Inc. c. AP Moller-Maesk (Maesk Line Branch Canada) 2024 QCCS 446 SUPERIOR COURT CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No.: 500-17-110966-192 DATE: February 12, 2024 _____________________________________________________________________ BY THE HONOURABLE JANET MICHELIN, J.S.C. _____________________________________________________________________ Les Aliments Pizza Base Italia Inc. Plaintiff v. Ap Moller-Maesk A/S c/o Maesk Line Branch Canada and Schenker Italiana S. P.

A and Cordaro Shipping Co Inc. and Insignia Transport Inc. and Transport Dsquare Defendants _____________________________________________________________________ JUDGMENT _____________________________________________________________________ OVERVIEW [ 1 ] The Plaintiff, Les Aliments Pizza Base Italia ( Aliments ) is an importer and wholesaler of Italian food products. In January 2019, Aliments sought to ship 3,708 cartons of pasta from Italy to its warehouse in Quebec for eventual sale to its customer, Oggi Foods. At all times during shipping, the pasta was to be kept frozen at a minimum of -20 degrees Celsius.

However, the pasta was delivered to Aliments in damaged condition and was ultimately refused by its customer. [ 2 ] Aliment seeks damages in the amount of $223,734.08 from the Defendants Schenker Italiana S.P.A., Cordaro Shipping Co.

Inc., AP Moller-Maersk ( Maersk ), Insignia Transport Inc. and Transport Dsquare Inc., all of whom Aliments alleges participated at various points in the transport of the pasta from Italy to Quebec. [ 3 ] In support of its claim, Aliments produced a 9-page expert report dated June 18, 2019 from Richard Mannion, who it retained to “conduct a survey report to determine the extent of the loss” (the Mannion Report ). In December 2019, it was communicated to the parties as Exhibit P-3 to the Originating Application.

On December 11, 2020, Aliments notified the parties of its intention to file the Mannion Report as an expert report. [1] [ 4 ] On March 8, 2023, Maersk notified a Demande des défenderesses pour rejet de rapport d’expert on behalf of all of the Defendants. They argue that the Mannion Report does not meet the requirements of an expert report because it contains a restatement of observations made by third parties but includes no scientific or technical opinion that would be of assistance to the trial judge. They also argue that Mr.

Mannion is biased. [ 5 ] Aliments replies that the Defendants’ application should be dismissed because it was made more than two years after they received a copy of the Mannion Report. It further adds that the Defendants’ arguments relate to the probative value of the report, which should be left to the trial judge to decide. [ 6 ] The Court will grant the Defendants’ application and exclude the Mannion Report because it contains numerous irregularities. Mr. Mannion restates observations made by third parties without drawing any technical or scientific conclusions about them.

Furthermore, his observations on the condition of the pasta are not admissible because he admits that he is not an expert in this area. Finally, his observations and opinions on the container in which the pasta was shipped are inadmissible because he did not actually examine it. They are therefore speculation rather than an expert opinion. ANALYSIS

1. should the court exclude the Mannion report from the evidence? 1.1 Legal principles [ 7 ]

Article 231, 238, 241 and 294 of the Code of Civil Procedure (C.C.P.) provide: 231. The purpose of expert evidence provided by a qualified expert in the area or matter concerned is to enlighten the court and assist it in assessing evidence.

To provide expert evidence is to give an expert opinion, taking into consideration the facts relating to the dispute, on particulars relating to a person’s personal integrity, status or capacity or adaptation to a given set of circumstances, or on factual or real evidence; to determine or audit accounts or other data; to give an expert opinion on the liquidation or partition of property; or to ascertain the state or situation of certain premises or things. 238 .

An expert report must be brief but provide sufficient details to enable the court to make its own assessment of the facts set out in the report and of the reasoning that led to the conclusions drawn by the expert. It must mention the analytical methodology used. Any testimony taken by the expert is attached to the report and forms part of the evidence. The expert’s conclusions are not binding on the court or on the parties, unless the parties declare that they accept them. 241 .

Before the trial begins, a party may apply for the dismissal of an expert report on the grounds of irregularity, substantial error or bias, in which case the application must be notified to the other parties within 10 days after the party becomes aware of the grounds for dismissing the report. If the court considers the application well-founded, it orders that the report be corrected or that it be withdrawn. In the latter case, the court may allow other expert evidence to be appointed.

It may also, to the extent it specifies, reduce the amount of the fee payable to the expert or order that the expert repay any amount already received. 294 . Each of the parties may examine an expert that it has appointed, a joint expert or a court-appointed expert to obtain clarifications on points covered in the expert report or to obtain the expert’s opinion on new evidence introduced during the trial; they may also examine such an expert for other purposes, with the authorization of the court. A party adverse in interest may cross-examine an expert appointed by another party.

The parties cannot, however, raise a ground of irregularity, substantial error or bias against the expert report unless they were unable, despite their diligence, to know of the irregularity, substantial error or bias before the trial. [ 8 ] The purpose of Art. 241 C.C.P. has been explained by this Court as follows: [2] [11] Cette disposition exprime l’intention du législateur de ne pas reporter au fond, au motif de la prudence, des questions liées à l’irrégularité d’un rapport d’expertise lorsque le Tribunal, au stade préliminaire, est en mesure de statuer.

Ainsi, dans l’affaire Du Sablon, on lit : [11] Le législateur a ainsi voulu s’écarter de « la règle générale suivant laquelle il appartient au juge du fond de statuer sur la pertinence, l’utilité, la nécessité et la valeur probante d’un rapport d’expertise ». Cette règle de prudence n’est plus de mise lorsqu’il est question d’irrégularité, d’erreur grave ou de partialité. Le devoir du juge est de trancher au stade préliminaire de façon à limiter le débat et à éviter de forcer une

partie à produire un rapport d’expertise en réponse à une preuve qui n’est pas admissible. [ 9 ] The ten-day delay set out in Art. 241 C.C.P. is not mandatory. As stated by Justice Granosik in Ville de Montréal c.

Propriétés Bullion inc. : [3] [34] En effet, malgré l’application immédiate de l’article 241 C.p.c., le délai de 10 jours peut être prolongé dans la mesure où son objectif, soit le débat portant sur l’admissibilité du rapport de façon préliminaire, est atteint : [36] Les demandeurs font remarquer que la demande de rejet est tardive, puisqu’elle leur a été notifiée plus de 10 jours après la signification du Rapport. [37] À cet égard, l’article 241 C.p.c. dispose que la demande doit être notifiée dans les 10 jours « de la connaissance du motif de rejet ». [38] Même en retenant que RC a eu connaissance des motifs qu’elle invoque dès la signification du Rapport et que l’interrogatoire de Daniel Adam n’a fait que les renforcir, il y aurait lieu de prolonger le délai. [39] En effet, les parties n’ont pas encore procédé à la mise en état du dossier, de sorte que l’objectif derrière l’article 241 C.p.c., à savoir le retrait du Rapport avant l’instruction, est atteint. [35] En conclusion, il y a lieu de relever Montréal du défaut d’avoir respecté le délai de 10 jours de l’article 241 C.p.c., compte tenu du fait que c’est la promulgation de la loi nouvelle qui l’oblige à agir , que la demande de rejet est présentée de façon diligente à compter du constat que le dossier nécessitera un dénouement judiciaire, et surtout, considérant que cette demande est présentée avant que la déclaration commune et la demande d’inscription ne soient complétées.

Le Tribunal est d’avis que dans ce cas, il y a lieu d’être souple en matière de la procédure, tout en demeurant rigoureux en ce qui concerne la recevabilité des éléments de preuve. (the Court’s underlining)

[ 10 ] The admissibility of expert evidence is based on the following criteria: relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule and a properly qualified expert . [4] [ 11 ] The report must be sufficiently detailed and well-reasoned to justify the conclusions reached. It must also describe the methods used to by the expert in his or her analysis. [5] [ 12 ] The practice court judge must intervene only in three specific cases provided for in Art. 241: irregularity, substantial error or bias.

Art. 241(2) allows the judge to order that the report be corrected or that a new one be filed rather than excluding the report entirely from the record. The assessment of the probative value of the expert's report is a matter for the trial judge. [ 13 ] The jurisprudence confirms that caution should be exercised when the Court is seized of an application to dismiss an expert's report. As stated by Justice Sheehan, « le fardeau à cet égard demeure lourd.

Tout en acceptant que l’introduction de l’article 241 C.p.c. vise certainement à limiter les coûts et les délais inutiles, la Cour d’appel met en garde qu’une application trop généreuse de l’article entrainerait l’effet inverse ». [6] Furthermore, « l a cause d’irrégularité, d’erreur grave ou de partialité doit rendre le rapport d’expert clairement inadmissible, et non pas être liée à la valeur probante de l’expertise, question qui devra être évaluée par le juge du mérite à la lumière de la preuve dans son ensemble ». [7] 1.2 Discussion 1.2.1 The delay for the Defendants to request the dismissal of the Mannion Report [ 14 ] Following notification of the Mannion Report on December 11, 2020, the Defendants examined Mr.

Mannion on February 5, 2021. On October 13, 2021, Aliments communicated the undertakings from his examination to the Defendants. [ 15 ] The last Case Protocol signed by the parties in July 2022 provided that the Defendants would file a counter-expertise at the time of the filing of the request to inscribe the case for trial and judgment. [ 16 ] On December 15, 2022, Aliments was granted an extension of the delay to inscribe to February 24, 2023.

On February 22, it completed and filed its own request to inscribe the case in order to avoid a sixth request to extend the delay. [ 17 ] Aliments states that it was not its intention to limit the Defendants’ rights to file their own Joint Declarations or a counter- expertise.

However, it argues that the Defendants have not adequately explained the two-year delay to present their application and accordingly, it should be dismissed on that basis. [ 18 ] The Defendants explain that as soon as they received Aliments’s request in February 2023 to inscribe the case, they reviewed the file, including the Mannion Report, in order to mandate an expert to prepare a counter-expertise.

It was at this time that they realized that the Mannion Report did not meet the legal requirements for an expert report and they decided that it was more proportional to request its exclusion at this stage than to prepare a counter-expertise. Two weeks later, they notified their application. [ 19 ] The Defendants had the Mannion Report since December 2019 and as of December 2020, they knew it was going to be relied upon by Aliments as an expert report. They examined Mr. Mannion in February 2021 and received the undertakings from his examination in September of the same year.

They do not explain why they waited another 18 months before requesting that his report be dismissed. [ 20 ] That being said, the Court will not dismiss their application on the basis of its late notification for the following reasons. [ 21 ] Aliments’s proceedings were instituted in December 2019. There were numerous delays in the file that cannot be attributed solely to the Defendants. The case has not been fixed for trial.

Although it is very late to be addressing the dismissal of an expert report, the jurisprudence is clear that the purpose of an application under Art. 241 C.C.P. is to debate the irregularity, substantial error or bias in the expert report prior to the trial on the merits. [ 22 ] Moreover, were the Defendants to wait until the trial, Art. 294 would preclude them from raising the grounds of irregularity, substantial error or bias at that time.

The prohibition set out in Art. 294 further confirms the legislature’s intention that applications under Art. 241 should be presented prior to trial in order to ensure the efficient use of judicial resources and to avoid forcing the opposing party to prepare a counter-expertise to an inadmissible expert report. [ 23 ] In the present case, while the Defendants can hardly be said to have been diligent in their treatment of the Mannion Report, their application was presented prior to the trial, thereby respecting the intent of the legislature.

The Court will therefore not dismiss their application on the basis of its late notification. 1.2.2 Should the Mannion Report be excluded? [ 24 ] Aliments received delivery of the pasta in February 2019. It alleges that it was delivered in damaged condition and its customer therefore refused to accept it. Aliments pleads that the Defendants failed to keep the pasta frozen in transit at the recommended temperature of -20 degrees Celsius. [ 25 ] Mr. Mannion is described as a Marine and Cargo Surveyor.

His curriculum vitae states that he has surveyed “a multitude of different types of cargoes received in a damaged condition, to determine in an impartial manner, the nature, quantum and probable cause of the loss”.

In his examination, he explains that the purpose of a marine surveyor is to determine the probable cause, the nature and the extent of the loss of cargo. [8] [ 26 ] His mandate is not clearly set out in his report but he states at the outset that he “spent considerable office and other time in order to survey, investigate and report in respect of cargo allegedly received in a “warm” condition and suspect of damage”. [9] In his

examination on discovery, he states that he was “contacted initially because Aliments Pizza had a problem”. After discussions with them, he suggested that he do a survey. [10] [ 27 ] In light of the above, it is not clear whether Mr. Mannion’s mandate was to opine on the condition of the pasta or on the cause of the damage to it. [ 28 ] Nevertheless, on April 11, 2019, two months after the pasta was delivered to Aliments, Mr. Mannion inspected it for the first time. The container in which it was shipped had already been returned to Maersk so he did not inspect it. On May 9, 2019, Mr.

Mannion inspected the pasta a second time. [ 29 ] At the outset, the Court dismisses the Defendants’ argument that Mr. Mannion is biased because he only relies on information obtained from the Plaintiff for his report. In his report, Mr. Mannion does not specify who provided him with the information upon which he relies. In his examination, he states that he obtained information from the Plaintiff’s representatives and from their client, Oggi Foods. This alone is insufficient to establish that Mr.

Mannion is biased to the point that his report should be excluded for this reason. [ 30 ] However, the report contains several irregularities that do justify its exclusion from the court record. [ 31 ] Regarding the condition of the pasta, Mr. Mannion describes on page 2 that others found frost on the packaging and clumping of the pasta “during and immediately after discharge” (the Court’s underlining). He was also “advised that cooking and other tests found the pasta to be in a damaged condition and that the temperature history would be contrary to CFIA rule”.

On page 3, he states that he “was advised that the absence of gluten in the pasta, would with disturbance of the temperature chain, cause the pieces to break down during cooking”. [ 32 ] To the extent that Aliments intends to make proof of the damaged or spoiled condition of the pasta at the time of delivery, Mr. Mannion confirms in his report that he did not inspect it at the time of delivery and he simply repeats what he was told by those who did, although he fails to state who gave him this information.

His testimony on this point therefore cannot help the trial judge because he is merely repeating the observations of others for the truth of their statements while drawing no conclusions from their observations. [ 33 ] It is true that Mr. Mannion inspected the cargo in April and May 2019. [11] He personally observed the frost and the clumping at that time.

However, this does not render his report admissible because his observations were made two to three months after the pasta was delivered and are therefore not relevant, particularly since no details are given as to how the pasta was stored and treated in the intervening period. Again, Mr. Mannion does not draw any conclusion or issue an opinion in respect of his observations. Clearly, there is no special expertise required to observe that there was frost on packaging or that pieces of pasta were clumped together [ 34 ] Finally, Mr.

Mannion does not purport to be a properly qualified expert in food science or safety. In fact, he admits that the issue of the separation of ingredients was “beyond my pay grade”. [12] [ 35 ] Accordingly, the sections of the report on the condition of the pasta do not meet the criteria set out in Mohan .

They contain irregularities which justify their exclusion from the evidence. [ 36 ] Regarding the temperature at which the pasta was shipped and delivered, on page 2 of his report, he writes that “statements and photographic evidence from the ultimate consignee , shows that the outsides of cartons in the afterface of the stow in the container were recording a temperature with a gun thermometer of -3 Celsius, upon receipt...The container was said to have been delivered without a “genset” or other power source and therefore, the temperature control machinery was not operating, at that time”. (The Court’s underlining) On page 3 of his report, Mr.

Mannion states that he reviewed some temperature records and he confirms what they say in his report. [ 37 ] Again, he is repeating what he has been told by third parties. No special expertise is required to observe temperature readings. [ 38 ] He refers on page 3 to a copy of a study on the workings of a temperature-controlled container. He did not examine the Maersk container in question so he cannot confirm that it was in fact temperature-controlled, nor did he have information on what type of container it was. [13] Presuming for the purposes of discussion that it was temperature-controlled, Mr.

Mannion still cannot draw a link between the study and the Maersk container used to ship the pasta because he did not actually inspect it. [ 39 ] He then refers to photographs of the container to confirm that it was old and showed considerable wear and tear. However, in his examination, he stated that he did not have information about its age. [14] He nonetheless states that: “ on many such containers , the “baffle plate” is defective or damage; or displaced.

In such circumstances, a process of “closed-cycling” can be set-up, whereby the inflow of cold air is directed upward instead of aft and returns to the exhaust, thus giving inexact temperatures for the return air and no proper refrigeration for the cargo stowed in a container’s mid to after end.” (the Court’s underlining) [ 40 ] He concludes that this “might” explain the high temperatures recorded in the container when the doors were opened. This is speculation because he did not examine the container in question.

He bases himself not on facts or his own observations but rather on a photograph of the container used and his general knowledge of containers. [15] Accordingly, if his theory is that the damage to the pasta was caused by a faulty container, it is clearly hypothetical, which justifies its exclusion. [16] [ 41 ] In short, assuming his mandate was to determine the cause of the damage to the pasta, which is not entirely clear, he is unable to confirm on a balance of probabilities that a defect in Maersk’s container caused the damage.

This constitutes an irregularity his report. [ 42 ] Finally, while the Mannion Report contains statements of his and others’ observations as well as speculation on the cause of the damage to the pasta, it contains no analysis or description of his methodology. [ 43 ] In view of the foregoing, the Court concludes that the Mannion Report does not meet the requirements set out in the

jurisprudence for a valid expert report. It contains numerous irregularities. It will therefore be excluded. FOR THESE REASONS, THE COURT: [ 44 ] GRANTS the Defendant AP Moller-Maersk a/s c/o Maersk Line Branch Canada’s Application to Dismiss the Expert Report; [ 45 ] DISMISSES the report of Mr. Richard Mannion dated 18 June 2019 and ORDERS that it be removed from the file; [ 46 ] THE WHOLE , without legal costs. __________________________________ JANET MICHELIN, j.S.C. Me Vanessa Major DE MAN PILLET For the Plaintiff Les Aliments Pizza Base Italia Inc. Me Nigah Awj BORDEN LADNER GERVAIS S.E.N.C.R.L., S.R.L.

For the Defendant Ap Moller Maersk a/s c/o Maersk Line Branch Canada Me Matthew Liben BLAKE, CASSELS & GRAYDON S.E.N.C.R.L. For the Defendant Schenker Italia S.P.A. Me Carmine Iovino GASCO GOODHUE ST-GERMAIN S.E.N.C.R.L./LLP For the Defendant Cordaro Shipping Co. Inc Me Marc-Olivier Brouillette ROBINSON SHEPPARD SHAPIRO S.E.N.C.R.L. For the Defendants Insignia Transport Inc. and Transport D Square Hearing date: January 10, 2024