R. v. Bingley, 2019 NLCA 79

Yvonne Compton (appellant) v. Toyota Canada Inc. (respondent) (18/05) Indexed As: Compton v. Toyota Canada Inc. 2019 NLCA 79 5 C.A.N.L.R. 285 Court of Appeal of Newfoundland and Labrador White, O’Brien and Goodridge JJ.A. December 23, 2019

Summary: Yvonne Compton was involved in a motor vehicle collision in September of 2016. She was driving a 2010 Toyota Yaris and alleged thatthe collision was caused by her vehicle’s brakes not working properly. Ms. Compton commenced a claim against Toyota, arguing that itwas liable for the damages caused to her vehicle and for her personal injuries resulting from the collision. Toyota denied liability and filed an application to have the matter proceed by

summary trial and to have the claim dismissed. The judgeheld that the matter was appropriate for

summary trial, heard submissions on the matter, and then dismissed Ms. Compton’s claim. Indoing so, the trial judge admitted and relied on affidavit evidence submitted by Toyota from a Toyota employee, Mr. Manz, indicatingthat the vehicle’s breaks appeared to be working properly. Ms. Compton appealed the judge’s decision, arguing that the judge erred byadmitting and relying on Mr. Manz’s evidence and by concluding that it was a proper matter for determination by

summary trial. Held: Appeal allowed. O’Brien J.A. (White and Goodridge JJ.A. concurring): The admission of and reliance upon Mr. Manz’s evidence was an error. Based onthe technical and specialized nature and scope of the affidavit evidence, including the reports prepared and appended to the affidavit, Mr.Manz’s evidence constituted expert opinion evidence. Toyota did not tender Mr. Manz as an expert, nor did the judge qualify him as one.There was no threshold assessment to determine whether the affidavit evidence met the test for admissibility as expert opinion evidence.As such, Mr.

Manz’s affidavit evidence was not admissible as expert evidence (paragraphs 17-77). Further, Mr. Manz’s affidavit evidence was not admissible as lay opinion evidence. His opinions and conclusions regarding the vehicle’sbrakes went well beyond those which could be formulated based on ordinary day-to-day experiences of life or common ordinaryknowledge and experience (paragraphs 78-87). Similarly, Mr. Manz’s affidavit evidence was not admissible as fact evidence. The evidence was expert opinion evidence and wasimproperly admitted into evidence at trial (paragraphs 88-98).

Based on the above, it was not necessary to consider whether this case was a proper matter for determination by

summary trial(paragraph 16). Cases cited: R. v. Bingley, 2017 SCC 12, [2017] 1 S.C.R. 170 White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 R. v. Mohan, (SCC), [1994] 2 S.C.R. 9 (S.C.C.) R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272

R. v. Abbey, 2017 ONCA 640 J.P. v. British Columbia (Children and Family Development), 2017 BCCA 308 R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600 Graat v. The Queen, (SCC), [1982] 2 S.C.R. 819 (S.C.C.) Guarantee RV Centre Inc. v. Schmidt, 2007 ABCA 89 R. v. Lee, 2010 SCC 52, [2010] 3 S.C.R. 99 Fong v. Chan (1999), (ON CA), 46 O.R. (3d) 330 (Ont. C.A.) Steele v. Rendell, 2017 NLCA 36, 1 C.A.N.L.R. 790 Rules considered: Rules of the Supreme Court, 1986, rule 17A Counsel: Appearing on her own behalf, the appellant; Joe Thorne, for the respondent.

The appeal was heard on March 12, 2019 before White, O’Brien and Goodridge JJ.A. The following judgment was filed on December 23, 2019 by O’Brien J.A. for the Court. ______________________________________________________________ O’Brien J.A.: INTRODUCTION [1] Ms. Yvonne Compton was in a motor vehicle collision in St. John’s, Newfoundland and Labrador, on September 9, 2016. Shewas driving her vehicle, a 2010 Toyota Yaris, when it collided with the rear of another vehicle. [2] Ms.

Compton alleges that the collision was caused by her vehicle’s brakes failing to work properly, resulting in her being unableto stop in time to avoid colliding with the vehicle in front of her. [3] She maintains that Toyota Canada Inc. is responsible for her vehicle’s defective brakes, and she commenced a claim againstToyota in the Supreme Court of Newfoundland and Labrador, General Division. She claims that Toyota is liable for damages to hervehicle and for her personal injuries which, she states, have resulted from the collision. [4] Toyota denies liability.

It brought an application, pursuant to Rule 17A of the Rules of the Supreme Court, 1986, requesting thatthe matter proceed by

summary trial and that the claim be dismissed. A Justice of the Supreme Court decided that this was a propermatter for

summary trial. The judge heard the matter and dismissed Ms. Compton’s claim (2018 NLSC 13). [5] At the

summary trial hearing, Toyota presented an affidavit of Mr. Nicholas Manz, a Toyota employee. In his affidavit Mr.Manz stated that, approximately two months after the collision, he inspected Ms. Compton’s vehicle’s brakes. At that time the vehicle,which had been written off in the collision, was in Toyota’s possession. [6] Mr. Manz’s affidavit included details of this inspection and his conclusion that the brakes appeared to be working properly. Theaffidavit was supported by a number of reports prepared by Mr.

Manz, appended to the affidavit as exhibits, and it included his opinionsarising from his inspection of the vehicle. Toyota argued that the affidavit supported its position that the brakes were working properly atthe time of the collision. [7] The affidavit also stated that Mr. Manz retrieved data from the vehicle’s event data recorder (commonly referred to as the “blackbox”). A report relating to this data was appended to his affidavit. Toyota’s view was that this data, and Mr. Manz’s

interpretationthereof, was inconsistent with Ms. Compton’s claim that the vehicle’s brakes had not functioned properly. [8] Notably, Mr. Manz was not tendered as an expert witness by Toyota, and he was not qualified by the judge as a witness who

could provide expert opinion evidence. Toyota submits that Mr. Manz was a fact witness, not an expert, and that there was no need forhim to be qualified in this circumstance. [9] Ms. Compton has appealed. She submits that the judge erred in two respects: by admitting and relying upon Mr. Manz’sevidence (which Ms. Compton submits was inadmissible) as the basis for dismissing the claim, and by concluding that this was a propermatter for determination by

summary trial. Issues [10] The issues to be considered on appeal are as follows: 1. Was Mr. Manz’s affidavit evidence admissible: (

a) as expert opinion evidence? (

b) as lay opinion evidence? (

c) as fact evidence? 2. Did the judge err in admitting and relying upon this evidence in dismissing the claim? 3. Did the judge err in deciding that this was a proper matter to be determined by

summary trial? ANALYSIS [11] For the reasons that follow, I would allow the appeal. [12] Given the technical and specialized nature and scope of Mr. Manz’s affidavit evidence in this circumstance, it should have beencharacterized and treated as expert opinion evidence. As such, it should have been subject to a specific legal analysis, described in furtherdetail below, to determine whether it met the requirements for admission. [13] However, in this case Mr. Manz was not tendered as an expert witness and he was not qualified as an expert by the judge.

Therewas no assessment to determine whether his proposed evidence met the test for admissibility as expert opinion evidence. As a result, Mr.Manz was not entitled to give expert opinion evidence, and his evidence was not admissible on that basis. [14] Additionally, for the reasons provided below, the evidence was not admissible as lay opinion evidence or fact evidence. [15] The judge relied upon Mr. Manz’s opinion evidence in dismissing the claim. The admission of and reliance upon Mr.

Manz’sevidence was an error, and I would allow the appeal on that basis. [16] In light of this conclusion, it is unnecessary to consider whether this was a proper matter for determination by

summary trial. Admissibility of expert opinion evidence - The judge as gatekeeper [17] In R. v. Bingley, 2017 SCC 12, [2017] 1 S.C.R. 170, the Supreme Court of Canada reviewed the requirements for theadmissibility of expert opinion evidence. Chief Justice McLachlin noted the “gatekeeper role” of a trial judge in assessing whetherexpert opinion evidence should be admitted: [13] The modern legal framework for the admissibility of expert opinion evidence was set out in Mohan and clarified in White BurgessLangille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182.

This framework guards against the dangers of expertevidence. It ensures that the trial does not devolve into “trial by expert” and that the trier of fact maintains the ability to critically assessthe evidence: see White Burgess, at paras. 17-18. The trial judge acts as gatekeeper to ensure that expert evidence enhances, rather thandistorts, the fact-finding process. [18] In White Burgess Langille Inman v.

Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, Justice Cromwell, for theCourt, referenced the importance of the judge’s gatekeeper role, which role has evolved in response to concerns about expert evidence inthe litigation process. Justice Cromwell discussed the so-called “threshold” requirements for admissibility of expert evidence which havedeveloped to assist judges tasked with determining whether to screen out or admit such evidence: [16] Since at least the mid-1990s, the Court has responded to a number of concerns about the impact on the litigation process of expertevidence of dubious value.

The jurisprudence has clarified and tightened the threshold requirements for admissibility, added newrequirements in order to assure reliability, particularly of novel scientific evidence, and emphasized the important role that judges shouldplay as “gatekeepers” to screen out proposed evidence whose value does not justify the risk of confusion, time and expense that mayresult from its admission. [19] Justice Cromwell further noted in White Burgess that the Supreme Court’s decision in R. v.

Mohan, (SCC),[1994] 2 S.C.R. 9 “described the potential dangers of expert evidence” (paragraph 17) and established a “basic structure for the lawrelating to the admissibility of expert opinion evidence” (paragraph 19), designed to address these dangers. [20] There are two stages, or components, to the Mohan analysis, as clarified by the Supreme Court in White Burgess. [21] First, the party seeking to have the expert evidence admitted must satisfy all of the threshold requirements for admissibility.There are four such threshold requirements.

It must be established that the evidence is relevant, that it is necessary, that it is not subjectto an exclusionary rule and that there is a properly qualified expert (see White Burgess, para. 19, citing Mohan at pp. 20-25 and R. v.Sekhon, 2014 SCC 15, at para. 43).

[ 22 ] In Bingley , Chief Justice McLachlin described the four threshold requirements as follows: [15] … The evidence must be logically relevant to a fact in issue: R. v. Abbey , 2009 ONCA 624 , 97 O.R. (3d) 330 , at para. 82 ; R. v. J.- L.J. , 2000 SCC 51 , [2000] 2 S.C.R. 600 , at para. 47 . It must be necessary “to enable the trier of fact to appreciate the matters in issue” by providing information outside of the experience and knowledge of the trier of fact: Mohan , at p. 23; R. v. D.D. , 2000 SCC 43 , [2000] 2 S.C.R. 275 , at para. 57 .

Opinion evidence that otherwise meets the Mohan requirements will be inadmissible if another exclusionary rule applies: Mohan , at p. 25.

The opinion evidence must be given by a witness with special knowledge or expertise: Mohan , at p. 25. … [ 23 ] The judge must consider the proposed expert opinion evidence in light of these threshold requirements, and determine whether the requirements have been met. [ 24 ] If the requirements have not been met, the evidence is inadmissible, as Chief Justice McLachlin indicated in Bingley : [15] If at the first stage, the evidence does not meet the threshold Mohan requirements, it should not be admitted. [ 25 ] Similarly, Justice Cromwell in White Burgess also noted that “the proponent of the evidence must establish the threshold requirements of admissibility”, with the result being that “evidence that does not meet these threshold requirements should be excluded” (paragraph 23). [ 26 ] This is significant to the analysis in the present case.

Mr. Manz was not presented as an expert witness by Toyota, and he was not qualified by the judge as a witness who could provide expert opinion evidence in the subject areas contained in his affidavit. [ 27 ] Therefore, and as will be considered more fully below, if Mr. Manz’s evidence was, in fact, expert opinion evidence, its admission was an error because the threshold requirements for the admission of expert opinion evidence were not considered or satisfied. [ 28 ] The second stage or component of the Mohan analysis is somewhat less relevant to the present case.

It provides that, even where the four threshold requirements for the admission of expert opinion evidence are met, admissibility remains subject to an ongoing risks/benefits analysis. In this second stage, the judge retains discretion to exclude evidence that otherwise meets the threshold requirements.

This was described in Bingley as follows: [14] …Second, the trial judge must weigh potential risks against the benefits of admitting the evidence: White Burgess , at para. 24 . [16] At the second stage, the trial judge retains the discretion to exclude evidence that meets the threshold requirements for admissibility if the risks in admitting the evidence outweighs its benefits.

While this second stage has been described in many ways, it is best thought of as an application of the general exclusionary rule: a trial judge must determine whether the benefits in admitting the evidence outweigh any potential harm to the trial process: Abbey , at para. 76 .

Where the probative value of the expert opinion evidence is outweighed by its prejudicial effect, it should be excluded: Mohan , at p. 21; White Burgess , at paras. 19 and 24 . [ 29 ] This second stage, the risks/benefits component of the Mohan analysis, is engaged subsequent to the threshold requirements for admissibility having been fulfilled.

As such, it is of limited relevance in the present case, because the threshold requirements were not met. [ 30 ] In Bingley (paragraph 17 ), it was recognized that an admissibility analysis “cannot be conducted in a vacuum” and that the “nature and scope of the proposed expert opinion” must be determined. Chief Justice McLachlin observed: [17] The expert opinion admissibility analysis cannot be “conducted in a vacuum”: Abbey , at para. 62 . Before applying the two-stage framework, the trial judge must determine the nature and scope of the proposed expert opinion.

The boundaries of the proposed expert opinion must be carefully delineated to ensure that any harm to the trial process is minimized: see Abbey , at para. 62 ; R. v. Sekhon , 2014 SCC 15 , [2014] 1 S.C.R. 272 , at para. 46 . [ 31 ] The nature and scope of Mr. Manz’s evidence will be considered next. The affidavit evidence of Mr. Nicholas Manz [ 32 ] Mr. Manz did not testify at the

summary trial. His evidence was provided exclusively in affidavit form. Ms. Compton, who was self-represented, did not cross-examine Mr. Manz on his affidavit. [ 33 ] Mr. Manz is an employee of Toyota. According to his affidavit, he is a Senior Consultant, and has been employed by Toyota, either directly or indirectly, since 2005.

His affidavit outlines that he worked indirectly for Toyota from 2005-2010 as a “Product Incident Investigator”, and began working directly for Toyota in 2010, “first as a Technical Engineer to assist in the investigation and analysis of alleged product incidents”, and later as a Product Engineer where his “responsibilities continue to include the coordination, investigation and technical analysis of product incidents.” Mr. Manz’s investigations, reports, opinions and conclusions [ 34 ] Mr. Manz’s affidavit described the details of his investigation of Ms.

Compton’s vehicle, and included his reports, opinions and conclusions arising from the investigation. [ 35 ] The affidavit indicates that Mr. Manz undertook various investigative activities or inquiries with respect to Ms. Compton’s vehicle, which involved a degree of technical evaluation, leading to his opinions and conclusions. These investigative activities, as described in his affidavit, included the following: 1. Vehicle Inspection He “inspected the vehicle” and provided his conclusions that the brake system and components were “in good condition and operating

normally”, and included, as an exhibit to his affidavit, a “ Technical Inspection Report ” setting out his findings in this regard. 2. Review of Event Data Recorder (“black box”) Data He “reviewed the Bosch Data Retrieval Report for the vehicle”, which he included as an exhibit to his affidavit, and provided his

interpretation of the data. [ 36 ] The judge referred to Mr. Manz’s evidence, the reports he prepared, and the conclusions he reached regarding the investigative activities. [ 37 ] For example, the judge noted that Mr. Manz inspected the vehicle and prepared a Technical Investigation Report with respect to his inspection. Significantly, the judge observed that Mr. Manz reached certain “conclusions” that the braking mechanisms were in good condition and operating normally. The judge itemized Mr. Manz’s conclusions as follows: [22] Mr.

Manz also inspected the vehicle overall and prepared a Technical Investigation Report that he attached to his affidavit as “Schedule” C. He stated the following conclusions in his Report from his inspection: • The accelerator pedal and throttle assembly were operating normally and without evidence of binding or sticking; • The brake system, including the brake master cylinder, the brake calipers, the brake pads and rotors were in good condition and operating normally.

Although front brake calipers were rusted they operated normally; • A diagnostic test of the vehicle confirmed there was a good correlation between the accelerator pedal sensors, throttle position sensors and engine speed; and • External examination of the damage to the frontal area of the Yaris indicated that it had been in a “low to moderate impact” which is consistent with the data retrieved from the EDR and stated in the Bosch Data Retrieval Report. [ 38 ] Further, the judge indicated that Mr. Manz retrieved data from the event data recorder in Ms.

Compton’s vehicle and presented a report on the data, referred to as the Bosch Data Retrieval Report . Some of this data was reproduced in the judgment: [19] Ms. Manz also retrieved data from Ms. Compton’s vehicle, by downloading it from the Event Data Recorder (“EDR”) in the car. He prepared a Bosch Data Retrieval Report for the Yaris on November 22, 2016 from the data recorder and he attached the report as

Schedule “D” to the affidavit he provided to support Toyota Canada’s

summary trial application. I reproduce the relevant table from that Report below: [20] Table 1: Pre-Crash Data, -5 to 0 Seconds (Most Recent Event, TRG 3) Time (sec) -4.5 -3.5 -2.5 -1.5 -0.5 0 (TRG) Vehicle Speed (mph/km/h) 27.3 [44] 27.3 [44] 29.8 [48] 31.5 [50] 8.7 [14] 0 [0] Brake Switch Off Off Off On On On Accelerator Rate (V) 0.78 1.17 1.21 0.78 0.78 0.78 Engine RPM (RPM) 800 800 1,600 1,200 400 400 [ 39 ] The judge also referred to the “opinion” offered by Mr. Manz based on his review of this data: [21] From his review of the data in this table, Mr.

Manz offered this opinion: “… the brakes were applied less than 1.5 seconds prior to impact and the Vehicle speed decreased accordingly, from 50 km/h to 14 km/h to 0 km/h”. The judge relied on Mr. Manz’s evidence [ 40 ] In dismissing the action, the judge relied upon Mr. Manz’s conclusions and opinions regarding his inspection of the vehicle’s brakes and his

interpretation of the data retrieved from the event data recorder (see paragraphs 38-42 of the judgment). [ 41 ] The judge concluded that Ms. Compton failed to prove on a balance of probabilities that the brakes had failed. Therefore, he dismissed the claim: [38] The onus is on Ms. Compton to prove on a balance of probabilities that the brakes on her vehicle failed on September 9, 2016; and that she collided with the rear of the other vehicle because the brakes failed, causing damage to her vehicle and the injuries she says she suffered in that accident. Ms.

Compton failed to meet that onus of proof and her claim fails. … [ 42 ] To reach this conclusion, the judge relied extensively on Mr. Manz’s affidavit evidence and referenced various excerpts from the affidavit in dismissing the claim. Indeed, apart from an unrelated affidavit, which mainly outlined Ms. Compton’s complaints about the vehicle and its service history, Mr. Manz’s affidavit was the only evidence presented by Toyota on the

summary trial application. [ 43 ] Mr. Manz’s evidence was significant in supporting the judge’s conclusions and the dismissal of the claim. For example, the judge observed: [40] However, and more importantly, Mr. Manz inspected the brakes on the Yaris after the accident and found they were working properly. In fact, Mr. Manz also carried out a “limited test drive” of the Yaris after the accident and tested the brake performance; from which he concluded, “the brakes…held the Vehicle stationary and overpowered the engine”. As to his observations from inspecting the brakes, Mr.

Manz noted “…the brake master cylinder, the brake calipers, the brake pads, and rotors were in good condition and operating normally”. Although he “found that the front brake calipers were rusted”, he was satisfied, they were “operating normally”.

[41] The Yaris was equipped with an Event Data Recorder, or “EDR” for short. The EDR is sometimes referred to as the automotive industry’s "black box", an obvious reference to the flight recorders used in the airline industry. In effect, the EDR is a device installed in some automobiles to record information related to vehicle crashes or accidents . Toyota Canada downloaded the information recorded on the EDR in Ms. Compton’s vehicle and Mr.

Manz presented the data as a Bosch Data Retrieval Report in Exhibit “D” to his affidavit. [ 44 ] The judge also referenced a table of data (reproduced above) from the Bosch Data Retrieval Report , which was included in Mr. Manz’s affidavit, and accepted Mr. Manz’s

interpretation of this data as evidence refuting Ms. Compton’s claim that the collision was caused by brake malfunction. [ 45 ] It is clear that Mr. Manz’s evidence was the basis of the judge’s decision to dismiss the claim at the

summary trial. Mr. Manz’s evidence was not admissible as expert opinion evidence [ 46 ] Based on the nature and scope of the evidence in his affidavit, including the technical and specialized nature of the content, the reports prepared and appended to the affidavit, and the opinions and conclusions reached by Mr. Manz, I would conclude that his evidence constituted expert opinion evidence. [ 47 ] In the present case Toyota did not proffer Mr. Manz as an expert. The issue of whether Mr.

Manz’s evidence constituted expert opinion evidence was not addressed. [ 48 ] The four threshold requirements in Mohan (relevance, necessity, absence of an exclusionary rule, and a properly qualified expert) were not considered, and it was not established that Mr. Manz’s evidence satisfied these requirements. As a result his evidence was not admissible as expert opinion evidence. [ 49 ] A judge’s role in ensuring threshold admissibility of expert opinion evidence, and as gatekeeper throughout the process, is not intended to be merely perfunctory, automatic or cursory. [ 50 ] The Ontario Court of Appeal, in R. v.

Abbey , 2017 ONCA 640 , noted that there is a requirement of heightened vigilance when determining the admissibility of an expert witness, with the result that … “[n]o longer should expert evidence be routinely admitted with only its weight to be determined by the trier of fact” (paragraph 53). [ 51 ] Similarly, in White Burgess , Justice Cromwell stated that “[t]he unmistakable overall trend of the jurisprudence, however, has been to tighten the admissibility requirements and to enhance the judge’s gatekeeping role” (paragraph 20). [ 52 ] The Ontario Court of Appeal further noted in Abbey (paragraph 53) that “Cromwell J.’s observation echoes the point Binnie J. made in the earlier Supreme Court of Canada decision R. v.

J.-L.J. , 2000 SCC 51 , [2000] 2 S.C.R. 600 , at paragraph 28 : ‘The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility’ ”. [ 53 ] In J.P. v.

British Columbia (Children and Family Development) , 2017 BCCA 308 , the British Columbia Court of Appeal held that permitting a witness to give expert opinion evidence when the requirements for admissibility were not properly addressed was an error: [222] The judge’s approach to admitting expert opinion evidence was seriously flawed by his failure to fulfill the gatekeeper role in determining the admissibility of such evidence.

Instead, he admitted much of the mother’s opinion evidence without properly considering its threshold admissibility as required by the Mohan/White Burgess test. [ 54 ] In the present case, other than referring (in paragraph 16 of the judgment) to information taken from Mr. Manz’s affidavit relating to his training and experience, there was no analysis of how his evidence would meet the threshold requirements of Mohan and White Burgess . There was no determination that the threshold admissibility requirements had been met or that Mr.

Manz had been qualified to give expert opinion evidence. [ 55 ] The lack of a threshold admissibility analysis in the present case might be explained by the fact that Toyota did not tender Mr. Manz as an expert, or seek to have him qualified as such. However, the judge’s gatekeeper role nonetheless applies. [ 56 ] As the screening required to determine admissibility was not carried out in the present case, the evidence should not have been admitted.

As stated in White Burgess : [23] At the first step, the proponent of the evidence must establish the threshold requirements of admissibility. … Evidence that does not meet these threshold requirements should be excluded. [ 57 ] Indeed, had Toyota tendered Mr. Manz as an expert, it cannot be assumed that the evidence would have been “routinely admitted” ( Abbey , paragraph 23) or “allowed too easy an entry” ( R. v. J.-L.J. , paragraph 28 ). [ 58 ] That is, it would have been expected that any threshold admissibility analysis in this context would need to include consideration of the proper scope of Mr.

Manz’s proposed evidence. It would also require some assessment to determine whether Mr. Manz, a Toyota employee, was a properly qualified expert not only in terms of having the requisite experience and expertise, but also with respect to meeting the requirements of an impartial, independent and unbiased witness. These factors were not explored at the threshold admissibility stage, or at any subsequent stage. [ 59 ] In respect of scope, the Supreme Court of Canada in R. v.

Sekhon , 2014 SCC 15 , [2014] 1 S.C.R. 272 , noted that judges “must be vigilant in monitoring and enforcing the proper scope of expert evidence” … and “have an ongoing duty to ensure that expert evidence remains within its proper scope” (paragraph 46). The Court added that “[t]he trial judge must both ensure that an expert stays within the proper bounds of his or her expertise and that the content of the evidence itself is properly the subject of expert evidence” (paragraph 47).

[ 60 ] In terms of the potential scope of Mr. Manz’s testimony, had he been tendered as an expert, a threshold analysis would be required to determine whether he could be qualified to give expert opinion evidence regarding each of the areas of investigation covered in his affidavit and reports. Following this analysis, a judge might determine that he was qualified in all, some or none of these areas. In this case, this analysis did not occur. [ 61 ] While Mr.

Manz’s affidavit indicates that he “has been involved in investigating vehicle accidents and complaints of alleged vehicle defects since 2004”, and that his “work has involved vehicle and mechanical inspections, the analysis of vehicle crash, airbag and product investigations, as well as road surveys and assessments”, it is unclear how this matches his proposed evidence in this case.

For example, there are no details in his affidavit relating to specific expertise in providing opinions on braking mechanisms and brake failure, which are areas on which he formed conclusions contained in the affidavit and Technical Investigation Report . [ 62 ] With regard to Mr. Manz’s

interpretation of the “black box” data in the Bosch Data Retrieval Report , again there was no threshold analysis of the relevance of this data to the issue of brake failure or any consideration of the scope of Mr. Manz’s

interpretation of the data. Mr. Manz stated that he reviewed the Bosch Data Retrieval Report (which was attached to his affidavit as an exhibit), and concluded that the report indicated “that the brakes were applied less than 1.5 seconds prior to impact”. Toyota argued this was important evidence to show that the collision occurred not due to brake failure, but driver error in failing to activate the brakes in time. [ 63 ] The judge agreed. Relying on Mr. Manz’s

interpretation of the data, the judge concluded that “Ms. Compton did not apply the brakes before 1.5 seconds and by then it was too late to avoid the collision”. [ 64 ] However, Ms. Compton argued and Toyota agreed at the

summary trial hearing (see, for example, page 128 of the

summary trial transcript), and also on appeal, that Mr. Manz had in fact erred in his

interpretation of the event recorder data on this critical point of when he stated the brakes were applied. [ 65 ] Even if Mr. Manz’s

interpretation of the data had not been erroneous on this important point, it was not demonstrated (on a threshold analysis or otherwise) how data concerning braking time and vehicle speed (in the absence of other critical data regarding the distance required to stop the vehicle and distance between the vehicles involved in the collision, which was not provided) met the necessity and relevance requirements of Mohan .

In this regard, as stated in Sekhon , there is a necessity “to be vigilant in monitoring and enforcing the proper scope of expert evidence” (para. 46). [ 66 ] Additionally, a witness must be impartial, independent and unbiased in order to be considered a properly qualified expert under the Mohan and White Burgess threshold admissibility requirements. Justice Cromwell, in White Burgess, noted in this regard that an expert’s opinion must be “impartial in the sense that it reflects an objective assessment of the questions at hand”.

It must also be “independent in the sense that it is the product of the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation.” Finally, it must be “unbiased in the sense that it does not unfairly favour one party’s position over another” ( White Burgess , paragraph 32). [ 67 ] Justice Cromwell observed that these requirements must be considered as part of the gatekeeping role, and that failure to satisfy the requirements would render the evidence inadmissible.

He further clarified that these requirements must be met at the threshold stage of admissibility, noting that “a proposed expert’s independence and impartiality go to admissibility … and there is a threshold admissibility requirement in relation to this duty” ( White Burgess , paragraph 34). [ 68 ] If the threshold admissibility requirements are met, but there are remaining concerns, any such “remaining concerns about the expert’s compliance with his or her duty should be considered as part of the overall cost-benefit analysis which the judge conducts to carry out his or her gatekeeping role” ( White Burgess , paragraph 34).

That is, “the judge must still take concerns about the expert’s independence and impartiality into account in weighing the evidence at the gatekeeping stage” ( White Burgess , paragraph 54). [ 69 ] Ms. Compton’s position in the present case is that Mr. Manz, a Toyota employee, did not satisfy these requirements and that his evidence should have been inadmissible as a result. In her submissions, in which she refers to Mr.

Manz as a “hired gun” of Toyota, she argued that it was an “error of law to not require the expert witness to be independent and non-partisan”, and she claimed that the judge “did not carry out his gatekeeper role”. [ 70 ] Notably, the fact that Mr. Manz works for Toyota would not, in and of itself, disqualify him. As Justice Cromwell noted in White Burgess , “it is the nature and extent of the interest or connection with the litigation or a party thereto which matters, not the mere fact of the interest or connection”.

As a result, “the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible” (paragraph 49). [ 71 ] It is not just the perception or appearance, but the existence of bias, impartiality or independence which matters. As Justice Cromwell observed, the key question to be considered is “whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance” ( White Burgess , paragraph 50). [ 72 ] In this case, Mr.

Manz was a Toyota employee and his evidence was provided in support of Toyota’s position as a party to the litigation.

In those circumstances, some level of analysis would be expected to determine whether the nature and extent of his interest or connection, arising from his ongoing employment with Toyota, rendered his evidence inadmissible at the threshold admissibility stage (which the Court in White Burgess suggested would result “only in very clear cases” where the expert is not able or not willing to be fair, objective and non-partisan) or whether this should otherwise have been “taken into account in the overall weighing of costs and benefits of receiving the evidence” ( White Burgess , paragraph 49).

However, there is nothing to indicate that there was an analysis or consideration of Mr. Manz’s employment with Toyota in this regard, either in terms of threshold admissibility or in “weighing the evidence” at the gatekeeping stage. [ 73 ] None of the above is meant to suggest that Mr. Manz, had he been tendered by Toyota as an expert, should not have been considered a person properly qualified to give expert opinion evidence. Rather, it is to highlight examples of issues which would need to have been considered by the judge as gatekeeper to determine the threshold and ongoing admissibility of Mr.

Manz’s affidavit evidence,

and the scope of the evidence in the event that the threshold admissibility requirements were satisfied. [74] Finally, Ms. Compton did not object to Toyota entering Mr. Manz’s affidavit. Nor did she cross-examine Mr. Manz on hisaffidavit. However the absence of an objection to admissibility is not determinative.

As the Supreme Court of Canada stated in Graat v.The Queen, (SCC), [1982] 2 S.C.R. 819, in the context of discussing the admissibility of opinion evidence, the failureby a party to “object to the admission of inadmissible evidence” would not “stand in the way of directing a new trial if such evidence isheld to be inadmissible” (page 823). [75] This is perhaps especially so where a party to the litigation is self-represented, as Ms. Compton was in this proceeding.

A self-represented litigant would not generally be expected to know the rules governing expert opinion evidence or the requirements relating toits admission. As such, the presence of a self-represented party may give rise to a heightened gatekeeper role, given that it would be lesslikely for such a litigant to initiate an objection in this context. [76] In

summary, I would conclude that the affidavit evidence of Mr. Manz constituted expert opinion evidence. Toyota did not tenderMr. Manz as an expert, there was no threshold assessment to determine whether his proposed evidence met the test for admissibility asexpert opinion evidence, and he was not qualified as an expert by the judge. As a result, Mr. Manz was not entitled to give expertopinion evidence, and his evidence was not admissible as such. [77] In light of the above, it is necessary to consider whether Mr. Manz’s evidence was admissible as lay opinion evidence or factevidence.

For the reasons that follow, in my view the evidence would also be inadmissible under these categories. Mr. Manz’s evidence was not admissible as lay opinion evidence [78] All opinion evidence is presumptively inadmissible, including expert and non-expert (i.e. lay) opinion evidence. Notwithstanding this presumption, in appropriate circumstances opinion evidence may be provided by a lay witness, and may beadmissible as such. [79] However, in this circumstance, given the nature and scope of Mr.

Manz’s evidence, in my view it would not be admissible as layopinion evidence. [80] There is a significant distinction between lay opinions and expert opinions. Expert opinions are informed by the expert’s specialexpertise, while lay opinions need not be informed by specialized knowledge, but are limited to certain areas of observation for whichspecial expertise is not required to form the opinion (see, for example, Bingley at paragraph 34). [81] The scope of admissible lay opinion evidence was discussed in Graat.

The Supreme Court of Canada (at page 837) noted that anon-expert may provide opinion evidence in areas where specialized knowledge is not required to form the opinion, for example withregard to a person’s apparent age or emotional state: It is well established that a non-expert witness may give evidence that someone was intoxicated, just as he may give evidence of age,speed, identity or emotional state.

This is because it may be difficult for the witness to narrate his factual observations individually. [82] The Court in Graat reviewed various case authorities and provided excerpts from cases where lay opinion evidence wasadmissible in circumstances where everyday life experience could be used as the basis for the opinion.

For example, the Court notedcases where the lay opinion related to “a subject about which most people should be able to express an opinion from their ordinary day-to-day experience of life” (page 825), or a matter “on which a person of ordinary intelligence may be permitted to give opinion evidencebased on his personal knowledge” (page 826), or where “witnesses were ordinary observers applying their unskilled knowledge to whatthey actually saw” (page 826). [83] However, lay opinion evidence would be excluded, and inadmissible, in circumstances where “the matter calls for a specialist”,for example, in circumstances “where scientific, technical, or specialized testimony is necessary in order that the tribunal properlyunderstands the relevant facts” (page 838). [84] On the facts in Graat the Court admitted, as lay opinion evidence, testimony regarding a motor vehicle driver’s impairedcondition.

The Court (at page 838) stated that the opinion could be formed “on the basis of common ordinary knowledge andexperience”. As such, the Court found that the “guidance of an expert is unnecessary”: Nor is this a case for the exclusion of non-expert testimony because the matter calls for a specialist. It has long been accepted in our lawthat intoxication is not such an exceptional condition as would require a medical expert to diagnose it. An ordinary witness may giveevidence of his opinion as to whether a person is drunk.

This is not a matter where scientific, technical, or specialized testimony isnecessary in order that the tribunal properly understands the relevant facts. Intoxication and impairment of driving ability are matterswhich the modern jury can intelligently resolve on the basis of common ordinary knowledge and experience. The guidance of an expertis unnecessary. [85] The Supreme Court in Bingley also noted the distinction between expert and lay opinion evidence, and the proper exclusion oflay opinion evidence where an opinion requires specialized training and experience for its formulation.

The Court in Bingley concludedthat, as the witness in question “formed his opinion through the application of specialized training and experience”, the result was that, insuch circumstances, the “evidence cannot be characterized as lay opinion” (paragraph 34). [86] Similarly, in the circumstances of the present case, Mr.

Manz’s opinions and conclusions about the vehicle’s brakingmechanisms, the functionality of the brakes’ component parts, and the data recovered from the vehicle’s event data recorder go wellbeyond those which can be formulated based on “ordinary day-day experience of life” or “common ordinary knowledge and experience”(Graat, pages 825 and 838). [87] As such the evidence could not be properly regarded, or admitted, as lay opinion evidence.

Mr. Manz’s evidence was not admissible as fact evidence [88] On appeal, Toyota submitted that Mr. Manz was not an expert witness but a fact witness. [89] Toyota rejected the notion that Mr. Manz was an expert, or that he was required to be tendered or qualified as such. In fact,Toyota noted that it did not present him as an expert or request that he be qualified as an expert at the

summary trial hearing. [90] In its written submissions to this Court, Toyota described Mr. Manz as “an employee of Toyota” who “conducted the post-collision inspection” and “analyzed the EDR data”, not as an expert, but rather as a “very knowledgeable fact witness”. [91] Toyota’s position is that, notwithstanding the technical and specialized nature of Mr. Manz’s investigations, reports andconclusions, he should not have been considered an expert, and his evidence did not constitute expert opinion evidence. [92] Toyota submitted the following on appeal regarding the Mr. Manz’s evidence: 49.

As an overarching point [Ms. Compton] is incorrect when she says Mr. Manz was tendered or qualified as an expert, and also whenshe says the application judge erred by qualifying or treating him as such. 50. Mr. Manz is an employee of Toyota. As set out in his affidavit, he has many years of experience in inspecting and diagnosingproblems in Toyota and other vehicles, and in conducting accident investigations. He conducted the post-collision inspection of theVehicle for Toyota, and analyzed the EDR data. 51. Mr. Manz did not provide a formal expert report and was not tendered as an expert.

His evidence was tendered as a veryknowledgeable fact witness. His evidence was received, reviewed, and relied upon by the application judge in that way. 52. [Ms. Compton] confuses the application judge’s reliance on Mr. Manz’s evidence with deference to Mr. Manz as a formal expert. [93] I cannot agree with the submission that Mr. Manz’s evidence was not expert opinion evidence, and that he was simply a “veryknowledgeable fact witness” in these circumstances. [94] The Alberta Court of Appeal decision in Guarantee RV Centre Inc. v. Schmidt, 2007 ABCA 89, is instructive in this regard.

Inthat case, which dealt with a claim for alleged mechanical failures in a newly-purchased motorhome, the trial judge allowed a mechanictechnician to “give opinion evidence on a number of the systems and defects in issue” (paragraph 13), not as an expert witness but as alay witness who happened to be “an individual experienced, licenced and trained ...” (paragraph 14). [95] The Court of Appeal held that it was an error to admit this evidence on the basis that the witness was “experienced”, noting that“there is no general category of ‘experienced witnesses’ ” (paragraph 15).

The Court further held that the evidence constituted expertopinion evidence, finding that the “extent and implications of the motorhome’s defects are disputed, as is whether they were properlyrepaired” (paragraph 17). The Court concluded that the issue in question regarding whether a “vehicle or repairs to it are defective is amatter of opinion and expertise” (paragraph 15). [96] Mr. Manz’s evidence was, similarly, a matter of opinion and expertise.

Toyota’s characterization of him as a “veryknowledgeable fact witness” does not change this, and does not create a pathway for the admission of his evidence. [97] While the line between fact and opinion evidence in this context, or for that matter the line between when a witness can be said tobe providing lay opinion evidence as opposed to expert opinion evidence (see, for example, R. v. Lee, 2010 SCC 52, [2010] 3 S.C.R. 99)may not always be clear, the excerpts from Mr.

Manz’s affidavit, discussed above, illustrate that he went beyond stating facts, and that heprovided conclusions and opinions. [98] As such his evidence was opinion, not fact evidence. More specifically, as the evidence related to matters outside “commonordinary knowledge and experience”, it was expert opinion evidence which was inadmissible because it did not meet the thresholdrequirements for admissibility, for the reasons discussed above. Disposition [99] In the result, I would set aside the decision appealed from, allow the appeal, and remit the matter to the Supreme Court, GeneralDivision. [100] Ms.

Compton represented herself on the

summary trial application and on the appeal. She was successful on the appeal and isentitled to costs. In Fong v. Chan (1999), (ON CA), 46 O.R. (3d) 330 (Ont. C.A.), the Ontario Court of Appeal notedthat the “clear trend of both the common law and the statutory law is to allow for recovery of costs by self-represented litigants”(paragraph 21). [101] In Steele v. Rendell, 2017 NLCA 36, Justice White of this Court considered the issue of an appropriate costs award incircumstances where the successful party had not been represented by a lawyer.

In that case, a “modest lump sum” costs award wasmade in addition to reimbursement of expenses (paragraphs 36-42). [102] In my view, a similar approach is appropriate in this instance, and I would order a lump sum costs award in the amount of $500,in addition to reimbursement of Ms. Compton’s expenses in respect of both the

summary trial application and this appeal. Appeal allowed.